SENATOR NZERIBE'S SUSPENSION BY THE SENATE IS UNCONSTITUTIONAL

Recently, the Senate of Nigeria suspended Chief Francis Nzeribe from the National Assembly for an indefinite period. This was wrong.

The position of a Senator is a calling without repentance. An elected Senator is constitutionally empowered to do his duties in any manner he deems fit. In doing so, he cannot be prevented (not even by the Police)-even if he has a criminal charge pending in Court against him-except under clearly enumerated circumstances.

SUSPENSION ONLY AFTER DUE PROCESS

The suspension of a Senator is a very grave business. It may be embarked upon only after the due process of trial and conviction by a competent Court of law. This is provided for in Section 21 of the Legislative Houses (Powers and Privileges) Act, Cap. 208 Laws of the Federation of Nigeria, 1990.

I reproduce it hereunder:

"S.21 (1) Any member of a Legislative House who -
(a) Being a member of a committee of the House, publishes to any person not being a member of such committee any evidence taken by the committee before it has been reported to the House; or
(b) Assaults or obstructs a member of the Legislative House within the Chamber or precincts of the House.
(c) Assaults or obstructs any officer of the Legislative House while in the execution of his duty; or
(d) Is convicted of any offence under this Act.
Shall be guilty of contempt of the Legislative House
(2) Where any member is guilty of contempt of a Legislative House, the House, may be resolution, reprimand such member or suspend him from the service of the House for such period as it may determine:
Provided that such period shall not extend beyond the last day of the meeting next following that in which the resolution is passed, or of the session in which the resolution is passed, whichever shall first occur".
 
There are three parts to this section:

A. Conviction of a Senator for contempt,
B. Consequent suspension of the member by the Senate,
C. Period of suspension.

A. CONVICTION FOR CONTEMPT
Firstly, the acts that could amount to contempt in this case are restricted to four categories: unauthorised publication of Committee information, assault of another Senator within the precincts of the Senate, obstruction of any member or officer of the Senate from performing their Constitutional duties, and conviction for any offence under the Act. It is only for these acts that a Senator can be tried for contempt of the Senate and Nzeribe did not commit any of these.
The use of the word "guilty" in the above subsection legally presupposes trial and conviction by a Court of law. Section 36 of the 1979 Nigeria Constitution provides that:

"(1) In the determination of his civil rights and obligations,
including any question or determination by or against any
government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal
established by law and constituted in such manner as to
secure its independence and impartiality".

It is elementary Constitutional law that before a finding of "guilty", there must have been a trial involving adducing of evidence by the prosecuting party, defence and a judgement. Further, the adjudicating authority or person must have been previously established by law (not put together by the Senate President) and constituted in such a manner as to secure its independences and impartiality.
These did not take place in Senator Nzeribe's case. He was neither tried nor convicted for contempt. Or was he?

B. SUSPENSION PROCEDURE
Where the House wishes to suspend, there must be a resolution. This presupposes that a motion must have been filed, notice given to all parties, a debate conducted and opportunity given to the erring Senator to be heard in his defence before a vote.
I must make a clarification here. Section 60 of the 1999 Constitution empowers

"the Senate...to make rules to regulate its own procedure, including the procedure for summoning and recess of the House.." but such rules must be "Subject to the provisions of this Constitution".

In other words, the Senate can make rules to govern its internal affairs-and it has so done- provided that it conforms to the overriding provisions of the Constitution. If any Senate rule is inconsistent with the Constitution, it shall be void to the extent of its inconsistency. (See section 1(3) thereof).
In this saga, a mere motion was used to suspend both the rules of the Senate and Nzeribe. Everything was hastily commenced and concluded without any debate. In the haste, the existence of simple parliamentary rules, ethics and serious Constitutional provisions were either unknown or brazenly ignored.
The questions are: Can the Senate President say with a straight face that Nzeribe was given a fair hearing by the Senate? Was any notice of motion given to him of the case he was to meet on the day he was suspended? Was any facility put in place to ensure that justice was not only done, but also seen to have been done? The answer to all these are in clear negatives and even to a non-legal mind, this stinks.

C. SUSPENSION MUST BE FOR DETERMINATE PERIOD

Suspension, where embarked upon, cannot and can never be for an indefinite period. Whoever heard of anyone being sentenced to an indefinite term of imprisonment by a Court of law?
The law is that at the time of suspension, the specific date and time the member should resume his sitting must be stated. Accordingly, sub-section 2 of the same section 24 provides as follows:

"Where any member is guilty of contempt of a Legislative House, the House, may be resolution, reprimand such member or suspend him from the service of the House for such period as it may be determine:
"Provided that such period shall not extend beyond the last day of the meeting next following that in which the resolution is passed, or of the session in which the resolution is passed, whichever shall first occur".

From the above, it is clear that the period of suspension must NOT extend beyond the next day of meeting of the Senate or in very serious cases, the suspension should be over before the end of the session of that Senate (S.21 ibid). The raison d'etre for this law is to prevent an unruly member from disturbing proceedings of the Senate. It is not a tool to stifle opposition.
 
CONCLUSION

The indefinite suspension of Senator Nzeribe amounts to an ipso facto expulsion or removal from the Senate. It effectively (but in disguise) prevents him from sitting and exercising his constitutional mandate; unjustifiably denies his constituency their legal right to active and daily representation in the Senate, and illegally creates a fascist tool for browbeating errant Senators. This is absurd, unconstitutional, and ultra vires the Senate of Nigeria. Nzeribe should file suit immediately, nullify this action, and claim substantial damages for constitutional and legal infractions.

In Sherlock Holmes words, it is elementary, my dear Watson, elementary.

Dele Igbinedion is a Barrister-at-Law of the Nigeria Supreme Court, a former member of the Edo State House of Assembly and one time Legal Adviser and Consultant to the Edo State House of Assembly, Nigeria.