Dear Editor,
I read your editorial of above title.
Permit me to post my opinion on the issue which i recently circulated on social media as a response to a report titled ‘Why Orji Uzor Kalu’s seat won’ t be declared vacant’, carried online by Premium Times on 8th December 2019.
The report quotes the Senate spokesman, one Godiya Akwashikias having said that Mr Kalu will continue to receive his Senate salary and emoluments because the Constitution provides so. Nothing can be further from the truth.
Here is the correct position of the law:
Under the following provisions of the 1999 Constitution,
66. (1) No person shall be qualified for election to the Senate or the House of Representatives if:
(c) he is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by sucha court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court
Furthermore, it provides that
68. (1) 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 –
(b) any other circumstances arise that, if he were not a member of the Senate or the House of Representatives, would cause him to be disqualified for election as a member
Since a person caught by the provisions of S. 66(1)(c) is not qualified to seek election into the Senate in the first place as a result of having been convicted by a court of competent jurisdiction, it follows that if upon being elected such member is subsequentlyconvicted, that member “shall vacate” (not may) his seat under S.68(1)(b)
because if he was not already a member of the Senate or House of Representative, he would have disqualified for election on the basis of the conviction.
The only delay that is envisaged by the Constitution with regard to the member vacating his seat is:
68. (2) Where in respect of any person who has been-
(c) sentenced to death or imprisonment;
any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of the section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appealis finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.
After all appeals are determined and the conviction is not overturned, the member’s seat automatically becomes vacant and must be so determined by the Presiding officer.
Vincent Okwechime
(Lawyer – Abuja)
