TheCable

Amid the chaotic buildup to the national convention of the All Progressives Congress (APC), the fortunes of the party ahead of the 2023 general election appeared to be hanging in the balance.

However, on the day of the convention, the party’s leadership resolved to adopt the consensus method in selecting candidates for most of the positions of the APC  national working committee (NWC).

But with the emergence of two federal lawmakers — Abdullahi Adamu as national chairman and Abubakar Kyari as deputy national chairman (north) — there are questions on if they can retain their positions in the national assembly.

Adamu has been representing Nasarawa west senatorial district since 2011, while Kyari has been in the senate since 2015 when he was first elected to represent Borno north.

The call for their resignation, echoed by Olisa Agbakoba, a senior advocate of Nigeria (SAN), is premised on the Jegede Vs INEC & 3 ors case, where the supreme court held in a minority judgment that the election of Rotimi Akeredolu, Ondo state governor, would have been invalidated if Mai Mala Buni, then APC interim chairman, was joined as a party in the suit.

The minority judgment of the apex court held that Buni was an elected official — as governor of Yobe state — and not supposed to have held the position of APC caretaker committee chairman as stipulated in section 183 of the 1999 constitution.

HOW CAN A SENATOR LOSE HIS/HER SEAT?

Section 68 of the constitution provides the grounds upon which a senator can lose his/her seat, which includes — if he/she becomes a member of another legislative house, defects from the party that sponsored his/her election, or ceases to be Nigerian.

Other conditions include if the lawmaker becomes president, vice-president, governor, deputy governor, minister, commissioner, special adviser or if he/she is recalled.

Also, one will lose the senate seat if the person “becomes a member of a commission or other body established by this Constitution or by any other law” or is absent from meetings of the house without just cause “for a period amounting to the aggregate to more than one-third of the total number of days during which the house meets in any one year”.

‘SECTION 183 DOES NOT APPLY TO NWC MEMBERS’

Adeola Adedipe, a lawyer, said section 183 of the constitution does not apply to APC NWC members.

“It should be noted that every case must be decided on its merit and peculiar facts,” he said.

“Section 183 of the constitution is a prohibitive section, exclusive in application to a governor. This cannot by parity or reasoning be applicable to a serving senator. This operates by the principle that the express mention of a thing excludes others.”

Adedipe said the provision of section 68(1)(e) which prohibits a senator from being a member of any commission or body established by the constitution or any other law does not apply to the NWC of political parties.

“It is correct that the political party which Senator Adamu belongs is registered with INEC, pursuant to section 222 of the constitution. Inferentially, the political party is registered in alignment with both a legislative enactment and the constitution,” he said.

“The supreme court was right in its reasoning on (Jegede v INEC) 14 NWLR (Pt. 1497) 409 at 558 – 559 per Agim JSC, that it is the manifesto of the party that an occupier thereof projects and executes — meaning that the political party is not considered as an external body or commission or company, which can be affected by the prohibitive section of membership.”

Adedipe said the issue of conflicting interests cannot arise because the senators are occupying positions in the party through which they were elected as legislators.

‘THEY WILL BE SACKED IF CHALLENGED IN COURT’

Presenting a contrary opinion, Daniel Bwala, a lawyer and member of the APC, said Adamu and Kyari “cannot keep sitting as serving senators and at the same time run the affairs of the party”.

He said the word “executive” used in Article 17(iv) of the APC constitution and section 183 of the constitution “refers to a position you come to by virtue of a democratically conducted election — like in this case of our convention”.

“In this case, the national chairman was duly elected. Even though it was a consensus, the consensus is part of the process for electing the national leaders recognised by the party’s constitution,” he said.

“So, they are now occupying the position of a democratically elected service and cannot, while they hold that position, continue to serve as senators.”

Bwala added that although critics can put forward the argument that the national assembly is a legislative position and not executive as stated in the constitution, “it is important to look at the spirit of the law and the intendment of the lawmakers when the constitution was made”.

“The intendment and contemplation of law is that you cannot be a national chairman and hold any other position from the three arms of government –executive, legislature and judiciary,” he said.

“That means you cannot be a governor and a national chairman, a judge and national chairman or a lawmaker and national chairman.”

He said if anyone goes to court with that argument, the national chairman will be sacked.

“The law is talking about non-interference, transparency, fairness and equality. There is no way you can occupy the position of an NWC and you are running for a post that will require the endorsement of NWC that you will be fair to your competitors,” he added.

THEY WILL DO THE RIGHT THING, SAYS APC

When contacted for the party’s position, Felix Morka, APC national publicity secretary, said Adamu and Kyari will “do the right thing”.

“What I can tell you is that Mr Chairman is well-advised and has excellent counsel,” Morka said.

“I am confident that he will be doing right by the law as appropriate.

“He is committed to not just driving the party to greater success, but to do so following due process. So, I’m sure he will do the right thing as to what is expected of him.

“Mr chairman is committed to complying with every requirement of law with respect to his office and functions as national chairman of the party.”