FACT CHECK: Is Ekweremadu right about senate deciding Melaye’s fate?

While speaking on the floor of the senate on Tuesday, Ike Ekweremadu, deputy senate president, said the Independent National Electoral Commission (INEC) would need the validation of the upper legislative chamber before Melaye, senator representing Kogi west, can be recalled.

Melaye’s constituents are in the process of removing him from the red chamber. Signatures have been collected and a petition has been submitted to INEC, which has released a timetable for the verification of the signatures.

Ekweremadu also said INEC would need to verify the signatures in the presence of Melaye and his lawyers.

“What is happening in Kogi in respect of Senator Dino Melaye, as far as this constitution is concerned, is an exercise in futility. They are just wasting precious time because the constitution is clear on what should happen,” he had said.

“In 2010, this parliament amended the constitution regarding section 69. It states that the number of those who are supposed to have requested his (Melaye) recall are supposed to line up somewhere in Kogi, while Melaye and his lawyers and each person would verify their signature.

“It is possible that the attorney- general of Kogi state has not advised them properly. If he had done that, I am sure they would have applied their time to more meaningful ventures in Kogi state.

“When they are done with that, they go back to section 68 which states that the president of the senate receives from the chairman of INEC the recall of the member. They would also present evidence satisfactory to the house. So, they need to come back here and convince each and every one of us that they have done the correct thing. Unless they do that, they cannot even give effect to it.”

In support of what Ekweremadu’s position, Senate President Bukola Saraki said efforts towards the recall process should have gone into “more important things”.

Melaye earlier described the recall as a comedy of errors, describing it as unconstitutional.

Checks by TheCable, however, showed these claims to be false as the recall process has so far been done within the confines of the relevant laws guiding it.

Here is why:

FIRST, INEC HAS NOT GONE AGAINST THE CONSTITUTION IN THE RECALL PROCESS

The commission had officially started the recall process with the release of a timetable to that effect. A look at the dates slated for the activities of the process shows that all of them are to be done within the 90 days stipulated by section 69 (b) of the 1999 constitution – counting from June 21 when INEC received the petition from Melaye’s constituents.

Section 116(b) of the Electoral Act 2010, which also gives credence to this, states thus: “the petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.”

Also, in compliance with the provisions of the electoral act, INEC wrote to Melaye to notify him of the recall process as demanded by the law.

SECONDLY, THE NUMBER OF REGISTERED VOTERS NEEDED TO RECALL A LAWMAKER HAVE REPORTEDLY BEEN MET

According to section 69 (a) of the 1999 constitution, the required number of registered voters in a lawmakers’ constituency must be more than half the total number of the registered voters in the constituency.

The section of the constitution clearly states that a member of the senate or of the house of representatives may be recalled as such a member if – “there is presented to the chairman of the Independent National Electoral Commission a petition in that behalf signed by more than one-half of the persons registered to vote in that member’s constituency alleging their loss of confidence in that member.”

Section 116 (a) of the electoral act also restates this requirement.

Although, INEC is yet to verify the identity of the signatories on the petition, the constituents have reportedly met this requirement based on the number of signatures submitted to the commission.

TheCable, however, discovered that the number of signatures on the petition is more than the number of those that voted during the senatorial election in Kogi west.

Pius Kolawole, special adviser to Yahaya Bello, governor of Kogi, had said 188,588 voters representing 52.3 percent of the total number of registered voters in the district, approved the recall of Melaye. In all, there are a total of 360,098 registered voters in Kogi west.

THIRDLY, INEC IS NOT MANDATED TO HAVE NOTIFIED THE SENATE OF THE RECALL PROCESS BY NOW

What the law states is that the commission should notify the leadership of the senate about the recall only after a referendum has been conducted which will be done within 90 days of receipt of the recall petition.

This is clearly stipulated in the section 68 (1)(h) of the 1999 constititon which states that “a member of the senate or of the house of representatives shall vacate his seat in the house of which he is a member if…the president of the senate or, as the case may be, the speaker of the house of representatives receives a certificate under the hand of the chairman of the Independent National Electoral Commission stating that the provisions of section 69 of this constitution have been complied with in respect of the recall of that member.”

And what does the section 69 being referred to say? Its subsection b states that “the petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.”

WHAT ABOUT MELAYE’S CLAIM THAT SIGNATURES OF DEAD PERSONS ARE IN THE RECALL REGISTER?

This is part of the puzzle INEC aims to solve when it begins the conduct of the verification exercise to confirm the real owners of the signatures on August 19. The exercise will be held in all the polling units in Melaye’s constituency.

So until the commission gives the outcome of the verification exercise on August 19, no person or group has the authority to declare the signatures illegal or otherwise.

ANOTHER LOGJAM?

On Thursday, John Tsoho, judge of a federal high court in Abuja, suspended the recall process.

The court asked INEC and Melaye to maintain “status quo” in a suit filed by the senator to challenge the recall.

Tsoho ruled that the state of affairs remain the same pending hearing of Melaye’s motion seeking an interlocutory injunction.

He fixed September 29 for the hearing of the motion. INEC is yet to react to this.

SO, WHERE DOES THE SENATE COME IN?

Section 68(1)  (h) of the 1999 constitution hints the role of the senate president as more or less that of confirmation.

The section states that “the president of the senate or, as the case may be, the speaker of the house of representatives receives a certificate under the hand of the chairman of the Independent National Electoral Commission stating that the provisions of section 69 of this constitution have been complied with in respect of the recall of that member.”

Further down the section, the constitution notes: “the president of the senate… shall give effect to the provisions of subsection (1) of this section, so however that the president of the senate… or a member shall first present evidence satisfactory to the house concerned that any of the provisions of that subsection has become applicable in respect of that member.”

CONCLUSION: Melaye’s recall process has so far been done within the provisions of the law. Ekweremadu is correct to have said that the senate president would need to present satisfactory evidence to the lawmakers, but accoding to the law, the senators cannot determine the validity of the recall process.