Greystone Law & Risk

Our Senior Partner Kingsley Ughe was recently featured in a webinar conference where he was the guest speaker on the topic; REPOSITIONING THE ROLE OF THE BAR IN A DEMOCRACY UNDER THE NEW POST COVID-19 EMERGING NORMS.

CAN VICE PRESIDENT YEMI OSINBAJO SUE FOR DEFAMATION AS AN INCUMBENT ?

The Legal issue raised by the controversy of the retraction by Vanguard Newspaper of the alleged defamatory publication against the Vice President is whether having regard to the provisions of Section 308(1)(a) of the 1999 Constitution, the Vice President can maintain a civil action in his private capacity against Vanguard newspapers and Google Global Services Nig.Limited for libel.

My reaction here is spurred more than the stories making the round in the public domain that my former boss , the erudite Femi Falana SAN, and another equally erudite Senior Advocate Of Nigeria , Femi Atoyebi have written letters to Vanguards News paper and Google Global Services Nigeria Limited demanding for retraction of an alleged libelous publications against the person of the Vice President else they would proceed to court to assert the legal rights of the Vice President.

As an individual, the Vice President is entitled to seek legal redress if he thinks he has been defamed and his reputation unfairly maligned. But what I disagree with is the position that the Vice President can institute an action in court as a sitting president for reputational injury.

Section 308 of the Constitution restricts legal proceedings against a person holding the office of President or Vice-President, Governor or Deputy Governor during the period such person holds such office, PROVIDED that such proceedings may be initiated or continued against him during his period of office in his official capacity.

The general principle of law is that when a matter can be disposed of without resort to a strained interpretation of the Constitution, that should be the preferred course.The law governing Interpretations of Section 308 of the Constitution must necessarily accord with the general principle of law in the interpretation of the Constitution which is that such interpretation as would serve the interest of the Constitution and best carry out its object and purpose should be preferred.

It is therefore follows that the relevant provisions of Sections 308 of the Constitution must be read together and not disjointly, and where the words of the section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution.

Base on the settled principles of law above, yIt would appear that from the careful wordings of the provisions of Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that the immunity granted to the incumbent of the office of the Vice President under Section 308(1)(a) of the Constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal, in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds such office.

Applying the above provisions to the Vice President ‘s attorneys letters to these organizations, the proper thing is to state that actions would be maintained against these companies at the end of the current tenure of the Vice Presidential term and no more.

Their client still holds the post of Vice President of the Federal Republic of Nigeria. The purported defamation against him did not arise by virtue of any act executed by him in his official capacity as Vice President of Nigeria.

Thus, applying the mandatory provisions of Section 308(1)(a), no civil proceedings could be instituted or, if already instituted, as in the present action, maintained by him while he holds office.

That was the position of the Supreme Court in the case of ; M. B. SECURITIES PLC V. BOLA TINUBU (SC 32/2001) [2001] 10 (05 OCTOBER 2001). One of the issues for determination before the Supreme Court was whether or not the provisions of Section 308(1)(a) of the 1999 Constitution permits the Governor of a State, as appellant, to continue with the prosecution of his appeal in a suit instituted against him?

And the Supreme Court held that regarding the purpose of Section 308(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 that reason for the protection of the person given the immunity in Section 308 of the Constitution is to afford him quiet tenure, free from harassment on personal matters rather than matters of office. It is to afford the person complete devotion to the high office which pertains to the welfare and stability of governance.

Further more, with all the respect due to him, the Vice President, Yemi Osinbajo, SAN. was being disingenuous when he said he'd waive his "constitutional immunity" to allow for a fair probe of allegations of corruption against him.

This is because constitutionally speaking, the learned SAN cannot legally waive his immunity while still in office.That would be unconstitutional.
No question of waiver of the relevant immunity by the incumbent of the offices concerned or by the courts may therefore arise. An incumbent who seeks to waive his immunity may do so only be first resigning his position and his office.

Kingsley Ughe , Esq.

CAN SARAKI BE IMPEACHED UNDER THE NEW POLITICAL ARRANGEMENT IN LAW?

There is tension brewing in the National Assembly as armed men have barricaded the entrance to the legislative chambers thus preventing law makers and staff from entry.

This is in the wake of Senate President Bukola Saraki dumping the APC for the PDP like everyone expected.

Questions have been asked about whether Saraki will remain senate president even though he now belongs to the PDP—the minority political party in the senate—at least going by the last count.

To me, the question is how many senators do the APC and PDP have now?

After the gale of defections in the Senate and House of Representatives on July 24, 2018, the governing APC maintained a slight majority over the opposition PDP.

There are 109 senators in the upper legislative chamber. After last week’s defections, the APC had 53 senators while the PDP had 50.

ADC has 3 senators and APGA has 2.

With Saraki’s defection, the APC now has 52 senators while the PDP’s ranks have swollen to 51.

What this means is that when the senate resumes plenary in September, the APC will still be the majority party in the upper legislative chamber—albeit a very slim majority.

Will Saraki remain senate president from a minority party?

There is nothing constitutionally wrong with Saraki keeping his position as senate president even though he’ll now belong to the minority party in the red chamber.

According to Section 50 (1) (a) of the 1999 constitution as amended: “A President and Deputy President of the Senate, shall be elected by the members of that House from among themselves.”

The above section doesn’t bar lawmakers from the minority political party in parliament from seeking the position of senate president.

The law also doesn’t say that a senate president who becomes a member of the minority party should relinquish that position.

Section 50 (2) of the Constitution reads that: “The President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office:

a) If he ceases to be a member of the Senate or of the House of Representatives, as the case may be, otherwise than by reason of a dissolution of the Senate or the House of Representatives; or

b) When the House of which he was a member first sits after any dissolution of that House; or

c) If removed from office by a resolution of the Senate or the House of Representatives, as the case may be, by the votes of not less than two-thirds majority of the members of the House.

In simpler language, Saraki can remain president of the senate when the house reconvenes, unless he’s impeached by two thirds majority of lawmakers.

Saraki won’t be the first leader of parliament from the minority party In the 2nd Republic, the Speaker of the House of Representatives was Edwin Ume-Ezeoke of the Nigeria Peoples Party (NPP).

NPP wasn’t the governing party at the time. The governing party was Alhaji Shehu Shagari’s NPN.

In the 7th assembly, Aminu Tambuwal continued to serve as Speaker of the House of Representatives even after dumping the PDP for the APC.

In the 8th assembly, Ike Ekweremadu of the PDP is serving as Deputy Senate President even though that position should have been reserved for the governing APC.

Now back to the main constitutional question;
Can the Senate President be impeached under the current mathematical structure of the senate under the 1999 constitution as Amended?

Section 50(2)(c) of the Constitution is unambiguous on this point as it clearly states that the Senate President can only be removed by two-thirds of the members of the Senate.

Now the total membership of the senate could be gleaned from the provisions of Section 48 of the Constitution and it says ;
“The Senate shall consist of three Senators from each State and the Federal Capital Territory, Abuja.".

By virtue of the above, there are 109 members in the Nigerian Senate. What therefore constitutes two-thirds of 109 is 73.

I therefore submit that the Senate as presently constituted is faced with a burden of constitutional impasse regarding their capacity to form a quorum to impeach the senate president.

And the APC can only attain two thirds majority of lawmakers required to impeach Saraki, if senators from the PDP lend the governing party a chunk of senators.

Any action or moves contrary to the above will be unconstitutional and illegal.

Kingsley Ughe,Esq.
07/08/18