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Chief Adegboyega Awomolo, a Senior Advocate of Nigeria (SAN) and a former Osun State Attorney General, over the weekend said that the Senate President, David Mark could not declare the seat of defecting senators vacant.
Grounding his argument on Section 48 of the 1999 Constitution, Awomolo said that Mark lacked the powers to declare the seat of a Senator vacant without first obtaining an order from a competent court.
Awomolo argued that the Senate President, on his own as president of the Senate, cannot take a decision to declare vacant the seat of a Senator because; "He has no constitutional or statutory powers to revoke, annul or withdraw the certificate of returns issued by INEC to any Senator.
"He cannot discard, annul or disregard the electoral mandate given to a Senator like him, which is given by the electorate of the affected senatorial district.
"The constitutional role, duties and powers given under Section 53 or any other provision of the constitution does not extend to determination of validity, lawfulness or whether a Senator has ceased to be a member of the Senate.
Awomolo continued his argument saying, "Section 68 of the Constitution creates a tenure for every senator and prescribes conditions for ceasing to be a senator. Section 68(2) provides that the President of the Senate shall give effect to termination of tenure of a member only after a member shall first present evidence satisfactory to the Senate that any of the provisions of the subsection has become applicable in respect of that member.
According to Awomolo, what this means is that there must be an occurrence of the events in sub section (1) and a formal presentation must be made to the entire Senate for decision. In such a case, he argued, such decision would be resolved by 2/3 majority of the Senate.
He said the Senate President, not being the appointing authority, could not exercise the power to terminate a senator’s tenure.
Grounding his argument on Section 48 of the 1999 Constitution, Awomolo said that Mark lacked the powers to declare the seat of a Senator vacant without first obtaining an order from a competent court.
Awomolo argued that the Senate President, on his own as president of the Senate, cannot take a decision to declare vacant the seat of a Senator because; "He has no constitutional or statutory powers to revoke, annul or withdraw the certificate of returns issued by INEC to any Senator.
"He cannot discard, annul or disregard the electoral mandate given to a Senator like him, which is given by the electorate of the affected senatorial district.
"The constitutional role, duties and powers given under Section 53 or any other provision of the constitution does not extend to determination of validity, lawfulness or whether a Senator has ceased to be a member of the Senate.
Awomolo continued his argument saying, "Section 68 of the Constitution creates a tenure for every senator and prescribes conditions for ceasing to be a senator. Section 68(2) provides that the President of the Senate shall give effect to termination of tenure of a member only after a member shall first present evidence satisfactory to the Senate that any of the provisions of the subsection has become applicable in respect of that member.
According to Awomolo, what this means is that there must be an occurrence of the events in sub section (1) and a formal presentation must be made to the entire Senate for decision. In such a case, he argued, such decision would be resolved by 2/3 majority of the Senate.
He said the Senate President, not being the appointing authority, could not exercise the power to terminate a senator’s tenure.