for the scrapping of the upper legislative chamber because of their gross misdemeanor and belligerent behaviour and insensitivity to yawning and aspirations Of the populace. The activities of the 8th Senate is seen as serious affront to our delicate democracy. Analysis the procedure for scrapping this bogus would take a lot of deliberation and consultation in part and in series.
Here to set the Ball rolling is this special opening contribution from a learned friend;
To Abolish The Nigerian
Senate?
By Inibehe Effiong
This piece is precipitated by a private message I
received from a friend on Facebook on Wednesday
April 20, 2016 seeking to ascertain whether it is
possible to abolish the Senate of the Federal
Republic of Nigeria.
Without hesitation, I responded pointedly to the
requisition by stating that it is practically impossible,
but with a proviso that a revolution can make it
possible. I further intimated the said friend that
though it is constitutionally possible for the Senate
to be abolished, it is very unlikely for that to happen.
We will appreciate in the latter part of this essay that
this is not about pessimism.
With recent appalling and scandalous developments
in the National Assembly, particularly in the Senate,
the age long agitation by a section of the public for
the abolition of the Senate is resonating. The
Senator Bukola-Saraki-led Senate has been in the
news since its inauguration for all the wrong
reasons. It is indeed a national embarrassment that
we have a Senate President who shuttles between
the presiding officer’s seat in the Senate chamber
and the dock at the Code of Conduct Tribunal (CCB).
This is incompatible with the tenets of modern
civilisation.
It is even more reprehensible that Mr Saraki is
enjoying the support of his colleagues in a manner
that portrays the Senate as a corruption infested,
morally depraved and self-serving institution. How
can the law making body of a nation in the 21st
century be shut in solidarity with its principal officer
who is standing trial for corruption? This is not about
the presumption of innocence that Section 36 (5) of
the Constitution guarantees to every person. It is
about our moral compass and ideological direction
as a nation. In saner climes, the Senate President
would have honourably resigned the moment he
became a subject of negative public controversy.
Given what the National Assembly and the Senate in
particular has become over the years, is it
constitutionally possible for the Nigerian Senate to
be abolished?
For us to properly underscore the possibility of
abolishing the Nigerian Senate as advocated by a
section of the public, I will examine briefly the
constitutional fundamentals on the subject.
Legally, neither the Senate nor the House of
Representatives can be abolished or abrogated
without the alteration of the enabling provisions of
the Constitution of the Federal Republic of Nigeria
1999 (as amended) (subsequently referred to as the
Constitution).
The Senate is a creation of the Constitution.
Specifically, Section 47 of the Constitution provides
that “there shall be a National Assembly for the
Federation which shall consist of a Senate and a
House of Representatives”. Section 4 of the
Constitution vest the legislative powers of the
Federal Republic of Nigeria in the National Assembly.
The general procedure for altering the provisions of
the Constitution is as enshrined in Section 9 of the
Constitution.
The power to alter the provisions of the Constitution
is vested exclusively in the National Assembly. It is
only when two-thirds of all the members of each
house of the National Assembly have passed a Bill to
amend any provision of the Constitution that the
concurrence (resolution) of at least two-thirds of the
thirty-six Houses of Assembly in the country and
presidential assent will be required for same to
become law. If the subject of amendment relates to
Section 8 (State creation) or Chapter four
(fundamental human rights) of the Constitution, at
least four-fifth of all the members of each house
must support the amendment.
Although there is no specific provision for
presidential assent for the purpose of altering the
Constitution under Section 9, it is submitted that
since the Constitution can only be amended through
the instrumentality of an Act of the National
Assembly, a presidential assent is required.
This argument is anchored on the provisions of
Section 58 (1) of the Constitution which provides
that “the power of the National Assembly to make
laws shall be exercised by bills passed by both the
Senate and the House of Representatives and,
except as provided for under subsection (5) of this
section, assented to by the president”. Under the
subsection (5) supra, the National Assembly can
override the veto of the president where the latter
withholds his assent. Furthermore, by Section 2 (1)
of the Interpretation Act Cap. I23 L.F.N. 2004, “An
Act is passed when the Bill for the Act is assented to
by the President”.
A community reading of the provisions of Sections 9
and 58 (1) of the Constitution leads to the irresistible
conclusion that a presidential assent is mandatory in
the alteration of the Constitution. It is a trite
principle of constitutional interpretation that the
provisions of the Constitution should be read as
whole and not in isolation. The Supreme Court of
Nigeria had settled this principle in the locus
classicus case of Attorney-General of Bendel State
v. Attorney-General of the Federation (1983) NSCC
181.
The Federal High Court, Lagos Division, presided
over by Justice Okechukwu Okeke had rightly held in
November 2010 that the first and second alterations
to the 1999 Constitution were inchoate (incomplete)
except assented to by the president. A former
president of the Nigerian Bar Association, Mr Olisa
Agbakoba, had sued the National Assembly for
failing to send the alteration Act(s) to the president
for assent.
The 1999 Constitution has so far been subjected to
three successful alterations. The fourth alteration
Act which had, inter alia, sought to dispense with
presidential assent to the alteration of the
Constitution, was truncated because former
president Goodluck Jonathan vetoed it. The threat by
the seventh National Assembly to override
Jonathan’s veto to the fourth alteratation Act led to
a legal battle in the Supreme Court between the
President and the National Assembly. Eventually, the
dispute was settled out of court just before the end
of the last administration in May 2015.
Our current bicameral legislature is a creation of the
Constitution. Therefore, it can only be changed in
favour of a unicamaral or simple house parliament if
the Constitution is amended to that effect by the
National Assembly and assented to by the president.
This involves a long but achievable process which
can be initiated through the sponsorship of a
constitution alteration bill by either a member of the
National Assembly; the Executive or a private citizen
through a member of the National Assembly.
Another possible way of actualising a unicamaral
legislature for the federation is through a Sovereign
National Conference (SNC). However, the
convocation of a SNC must be preceded by an
established legal framework. In which case, recourse
must still be made to the National Assembly to put
the necessary legal framework in place. The last
attempt to hold a national conversation on the future
and structure of the country did not meet the
aspirations of progressive Nigerians.
The last National Conference convened by former
president Jonathan was a far cry from what the
proginators of the idea of a nation conference
wanted. Notwithstanding its limitations and
deficiencies, there were commendable
recommendations in the report of the conference
that should be implemented in the interest of
national cohesion.
It should be noted that the paternity of the current
1999 Constitution is traceable to Constitution of the
Federal Republic of Nigeria (Promulgation) Decree
No 24 of 1999 promulgated on the 5th day of May
1999 by General Abdulsalami Abubakar, the then
Head of State and Commander-in-Chief of the
Armed Forces Federal Republic of Nigeria.
Since the Constitution itself is the child of a Decree
(now an Act of the National Assembly by virtue of
Section 315 of the Constitution), her life and
existence can be brought to an end by repealing
Decree 24 of 1999. This will only require a simple
majority vote of all the members of each house of
the National Assembly and the assent of the
president. The SNC can then be empowered by the
repealing Act to draft a new constitution for the
country that will establish, among others, a single
house of parliament for the federation.
Unfortunately, there is no clear provision under the
Constitution for a national referendum in the country
on critical issues that affects the corporate existence
and structure of the Nigerian state. The implication
is that the Nigerian people are not constitutionally
empowered to determine the fate, structure and
system of government of their country except by
voting for their preferred candidates and political
parties during elections and by engaging in civic
engagements like protests, etc.
Ironically, Section 14 (2) (a) of the Constitution
declares that “sovereignty belongs to the people of
Nigeria through whom government by this
Constitution derives all its powers and authority”,
that provision apart from being non-justiciable by
virtue of Section 6 (6) (c) of the Constitution, does
not guarantee the Nigerian people the practical
assertion of sovereign power over their government
and country.
Except there is a new legal order in the country by
way of a revolution – either through a military coup
or a people driven national mass movement similar
to the Arab spring, it is constitutionally not possible
for the current system of government whether in the
legislative, executive or the judicial arm to be
changed without reference to the National Assembly.
I need to say clearly that military intervention is an
anathema to democracy and civilization and would
never be tolerated again in this country by Nigerians
and the international community. Therefore, that
option is not open for consideration.
The saddening reality today is that the vast majority
of Nigerians are neither willing nor prepared to take
back their country. This is why the advocacy for the
abolition of the Senate may never be actualized until
our people rise above the cleavages orchestrated by
political partisanship and the obsession for divisive
ethnic-religious interests.
For the National Assembly to sit and consider
altering its structure in the national interest will not
only amount to an act in self-censorship but self-
annihilation. No matter how imperative such an
objective may seem, the current crop of legislators
in Nigeria are too destitute in patriotism to even
contemplate such a radical and privative objective. It
is simply impossible.
The National Assembly is populated largely by people
who are after their primordial and pecuniary
interests. We have in the National Assembly people
that are under criminal investigations in Nigeria and
abroad. Though they may appear divided at times on
issues of policy, they are unapologetically united in
matters that affects their welfare and collective
existence. Our MPs are not willing to consider any
proposal that will seem like a class suicide. The
National Assembly members will not advert their
minds to their tribes, regions, religion or political
parties the day the issue of abolishing the Senate
comes up for deliberation in the National Assembly.
In 2012, Senegalese MPs voted to abolish the senate
as part of moves to help the victims of deadly floods
that ravaged the country at the time. President
Macky Sall had said the money reserved for the
upper house – about $15m – will also go towards
preventing further flooding.
Unlike Senegal, our legislators are proposing
legislations to protect and entrench themselves. It is
most improbable for lawmakers who have refused to
cut their prohibitive and abominable allowances to
alter the Constitution and abolish the Senate. We are
talking about lawmakers that have the unmerited
record as the highest paid in the world.
It is true that the bicameral legislature is too
expensive for the country to maintain. We cannot
continue to service the insatiable propensity of 109
senators and 360 members of the House of
Representatives. Their bogus allowances is not
sustainable. Let us revert to a part-time legislature
where lawmakers will only sit when occasion
demands and receive sitting allowances only. We
can endure the House of Representatives; but the
Senate should be abolished.
The starting point is credible elections. Our electoral
process should be sanitised. It is only when
lawmaker are freely and fairly elected by the people
that the desire for a unicamaral legislature will be
given serious attention by the National Assembly. We
must constantly engage our representatives. Recent
developments in the National Assembly has shown
that with vigilance and civic action by the citizens,
we can force our lawmakers to do our wish.
Let the struggle continue.
Inibehe Effiong is a Constitutional Lawyer and the
Convener of the Coalition of Human Rights
Defenders (COHRD).
inibehe.effiong@gmail.com
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