*Carry out order within two weeks
*Melaye’s drop from Senate is a 50-50 chance
*Plateau legislature had tested the recall in 2005
By Olajide Fashikun, Sandra Onyekwere, Oluwole Francis
Justice Nnamdi Dimgba of the Abuja Federal High Court on Monday dismissed the suit by Kogi West Senator, Dino Melaye, challenging his recall process, instituted by his constituents.
The judge ruled that the Independent National Electoral Commission (INEC), “shall proceed with the recall process.”
The Kogi West Senator had approached the court seeking an order nullifying the recall process.
Against this backdrop, the court had ordered INEC to halt the recall exercise, pending the determination of Melaye’s application.
However, Justice Dimgba said contrary to Melaye’s argument that he was not granted a fair hearing, the Constitution does not require a special provision that mandates INEC to grant the senator an opportunity of fair hearing.
Consequently, the judge ordered the nation’s electoral body to serve Melaye with the recall petition, schedule of signatures attached to the petition and a full list of persons in support of the recall process.
The judge said his order must be carried out within two weeks before an amended time-table for the recall would be made.
Nothing has been heard from Senator Dino Melaye’s camp may be he will be undertaking an Appeal against the decision of the lower court.
What is a recall process: A recall is the power of voters to unseat a serving lawmaker before the parliamentarian’s tenure is up. It is one of the salient but most powerful constitutional instruments in Nigeria’s evolving democratic system.
A recall process that began with a few people queuing to etch their signatures in what initially seemed an ill-fated exercise on 10th June, has now snowballed into the most keenly-watched political phenomenon.
On the 22nd June, INEC served Senator Dino Melaye with a notice of the recall process. This is the newest recall exercise in the country’s political history.
On 3rd July, a time table for the recall was issued by INEC. Five critical dates for the recall process were tabled. The process continued despite Dino Melaye’s attempts to block it from the court.
Recall is listed in the Constitution, as a tool for accountability. It has rarely been tested by the electorate. No member of the Nigerian parliament at the local or federal levels, has ever been recalled.
A first experiment that did not get concluded: On the 28th August, 2005, a recall referendum was conducted by INEC in Plateau State. It ended unsuccessful. The incumbent retained his seat with 74% of the votes.
Simon Lalong, then Speaker of Plateau State House of Assembly, had reportedly secured a court injunction against his recall, but INEC, under Prof Maurice Iwu, went ahead with the exercise, anyway.
Dino Melaye’s hopes not lost: Given the Plateau experience, Senator Dino Melaye’s hope that the outcome of a referendum, if conducted against him, might not end his mandate;
With the array of political forces interested in unseating him out of the Senate, it may also succeed. It is therefore a 50-50 option which can go either way.
Senator Dino Melaye apparently had this in mind when he first declared his recall process an exercise in futility a day after it began.
Yahaya Bello will fail: “He is shooting the moon and boxing the wind” Melaye had spoken about the governor of his state, his major political rival, whom he strongly believes is financing the recall campaign.
There are some strong folks that has been recruited to make the recall work. This includes the man Melaye upstaged, Senator Smart Adeyemi.
What the Constitution says: Provisions of the Constitution and the Electoral Act as they apply to a recall exercise are clear and look unambiguous.
The procedures that apply to the recall of federal lawmakers are the same as those for members of a House of Assembly at the state level.
Section 69 of the Constitution addressed recall for senators and members of the House of Representatives only, while another section dealt with a state-level recall. The process does not apply to elected executives, these folks can only be impeached.
From Section 69 of the Constitution: A member of the Senate or of the House Representatives may be recalled as such a member if –
(a) 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; and
(b) 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.
Section 116 of the Electoral Act also dictated the same thing.
In Kogi, Senator Dino Melaye’s opponents said they’ve collated about 188, 588 signatures to recall him from Senate. The number represents roughly 52.3% of the 360,098 registered voters.
The campaigners also said they ensured that all voters who signed the recall petition attached their respective voter’s cards to the document for proper and easier verification by electoral officers.
The Electoral Act advises that petitioners list offences against the person to be recalled.
What are the next steps?: Since INEC has announced some key dates in the exercise, it is no longer a question of whether the recall process would be exhausted. With the decision of Justice Dimgba, the next only question to be answered is, can Senator Dino Melaye survive the referendum?
INEC will verify that all the signatures are accurate and constitute more than a half of the electorate in his Kogi West Senatorial District as asserted by the petitioners.
The Constitution and the Electoral Act require only a simple majority (51%) of ‘Yes’ votes in the referendum that will be conducted after —amongst other tasks— authentication of submitted signatures.
This may likely be the most difficult stage for officials. However, Senator Dino Melaye had insinuated that the collected signatures were not authentic in one of his prayers before the Federal High Court.
The referendum: This process is expected to be conducted by the open secret ballot system.
Once the recall process has been completed and results announced, INEC will pass instruction based on the will of the majority in the constituency to the Senate President, in this case, Dr Bukola Saraki, for immediate action. To welcome his boy back or bid him farewell.
This will be in accordance with Section 68 (h) of the Constitution: “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.”
That section, as stated, does not require the consent of the presiding officers of the National Assembly for the recall but only seeks to inform them of the outcome.
If the recall succeeds, INEC will conduct a by-election in the constituency. The law is also silent if a recalled Dino Melaye losses can contest in the bye-election.
Is this a good precedent?: The case of Ekiti State governor, Ayo Fayose, who was elected as governor in October 2014, exactly eight years after he was impeached by the House of Assembly in October 2006.
When Ayo Fayose’s 2014 victory was challenged on the basis of his past impeachment, the Supreme Court held that the governor has the constitutional right to stand election because he was not indicted or convicted by any court.
A recall is neither an indictment nor a conviction. It’s only a vote of no confidence passed on an elected official by constituents.e
Let no parliamentarian sleep on a recall process because it can test your faith and popularity with your constituents. Once the people, the electorates, realise they have this power, all they will need is just a strong willed coordinator and the legislator is turned into a piece on artefact and history in their political museum.