It is no longer a breaking news that one of the serving Federal Lawmakers has been convicted of an offence of N7.65bn fraud by the Federal High Court, a competent court in Nigeria and the issue of his entitlement to salary while serving the jail term has equally been a subject of discussion by Nigerians-literates and illiterates.

Many writers have written different write-ups on proprietary or otherwise of the decision of the Senate to continue paying the jailed serving Federal Lawmaker his salary and other allowances while in prison.

It is against this background that this piece is exclusively written by the writer with a view to making his own contributions to the discussion and making his own recommendations on the need to amend some provisions of the Constitution of the Federal Republic of Nigeria 1999(as amended) which the writer feels and sees as defects in the Constitution.

Before kick-starting this discussion, it is importantly important to pose a question thus: Is there any provision in the Constitution stating conditions upon which an elected member of the Legislative House may be disqualified from being a member of the Legislative House before the expiration of the tenure of office for which the member was elected?

Recourse to the Constitution of the Federal Republic of Nigeria 1999 (as amended) (fourth alteration, No. 9 Act, 2017) with a view to finding out relevant provisions on membership of a legislative house at the Federal level evinced that the relevant provisions of the Constitution of the Federal Republic of Nigeria 1999(as amended) for discussion are section 63 which provides for sitting period of members; section 65 which provides for qualifications for election to the Federal Legislative House; section 66 which provides for disqualifications for election into the Federal Legislative House; section 68 which provides for tenure of seat of members; section 69 which provides for recall of a member of the Federal Legislative House and section 70 which provides for remuneration of members of the Federal Legislative House.

It is crystal clear and no gainsaying that the Constitution of the Federal Republic of Nigeria 1999(as amended) only provides for qualifications and disqualifications of any interested citizen for an election into the Federal Legislative House in Nigeria and there is no single provision in the Constitution of the Federal Republic of Nigeria 1999(as amended) for disqualifications of a member of the Federal Legislative House before the expiration of the tenure of office for which the member was elected. Fortifying this proposition is deductible fact from the introductory provisions of section 65(1)&(2) and section 66(1) of the Constitution of the Federal Republic of Nigeria 1999(as amended)that the Constitution is bereft of any provision on conditions which may make a serving member of the Federal Legislative House to cease to be a member or disqualifying him/her from being a member of the Federal Legislative House. For easy reference, the introductory provisions of section 65(1)&(2) and section 66(1) of the Constitution of the Federal Republic of Nigeria 1999(as amended) are reproduced thus:

Section 65(1) of the Constitution of the Federal Republic of Nigeria 1999(as amended)

‘Subject to the provisions of section 66 of this Constitution, a person shall be qualified for election as a member of-’

Section 65(2) of the Constitution of the Federal Republic of Nigeria 1999(as amended)

‘A person shall be qualified for election under subsection (1) of this section if-’

Section 66(1) of the Constitution of the Federal Republic of Nigeria 1999(as amended)

‘No person shall be qualified for election to the Senate or the House of Representatives if-’

It is crystal clear from the above quoted provisions of the Constitution of the Federal Republic of Nigeria 1999(as amended) that the said provisions only relate and applicable to election of members into the Federal Legislative House and not applicable to the disqualifications of a serving member of the Federal Legislative House who has been declared by the Independent National Electoral Commission a winner of the said election.

It is the writer’s stand that the provisions of section 66(1),(2)&(3) of the Constitution of the Federal Republic of Nigeria 1999(as amended) are inapplicable to justify the proprietary or otherwise of the decision of the decision of the Senate to continue paying the jailed serving Federal Lawmaker his salary and other allowances while in prison.

It is equally worth saying that the application of provision of subsection (2) of section 66 of the Constitution of the Federal Republic of Nigeria 1999(as amended) is not an island of itself because the reference to subsection (1) of section 66 evinced that the said subsection (2) cannot be read in isolation or independent of section 66 (1) of the Constitution of the Federal Republic of Nigeria 1999(as amended).

It is the writer’s stand that inapplicability of the decision of any person sentenced to death or imprisonment provided for under section 66(2) of the Constitution of the Federal Republic of Nigeria 1999(as amended) for pendency of appeal against the said decision is in respect of disqualification of an interested person for election into the Federal Legislative House and not an appeal against the decision of the competent court adjudging or sentencing serving Federal Lawmaker to imprisonment for fraud.

It would have been convenient to conclude that the provision of section 68(1)(f) of the Constitution of the Federal Republic of Nigeria 1999(as amended) wherein a member may cease to be a member if he/she is absent from meetings of the House for certain period prescribed in the Constitution is the provision disqualifying a jailed serving member as a member of the Federal Legislative House in the Constitution for him not to be entitled to salary and other allowances while in prison but the phrase ‘absent without just cause’ used in the said provision is a serious clog to make such conclusion.

One would have been conveniently glad to say that serving a jail term by the said jailed serving member of the Federal Legislative House would prevent the said jailed serving member of the Federal Legislative House to have an opportunity to attend meetings for more than the prescribed period in the Constitution and his absence in the House would automatically disqualify the jailed serving member of the Federal Legislative House.

Clearing doubt on what amounts to absence of any member of the Federal Legislative House in the meetings for a period amounting in the aggregate to more than one-third of the total number of (181) days during which the House meets in any one year is the provision of section 68(3) of the Constitution.

Section 68 (3) of the Constitution provides that a member of the Federal Legislative House shall be deemed to be absent without a just cause from a meeting of the House which he is a member if the person presiding certifies in writing that he is satisfied that the absence of the member from the meeting was for a just cause. For easy reference, the provision of section 68(3) of the Constitution of the Federal Republic of Nigeria 1999(as amended) goes thus:

‘A member of the Senate or of the House of Representatives shall be deemed to be absent without just cause from a meeting of the House of which he is a member, unless the person presiding certifies in writing that he is satisfied that the absence of the member from the meeting was for a just cause’

It is crystal clear from the above quoted provision of section 68(3) of the Constitution of the Federal Republic of Nigeria 1999(as amended) that the power to determine the absence without a just cause exclusively resides in the Speaker of the House of Representatives or Senate President of the Senate.

It is thus convenient to submit that only what the Speaker of the House of Representatives or Senate President of the Senate deems to be absence without a just cause that would be absence without a just cause.

It is the writer’s deductible fact from the provision of section 68(3) of the Constitution that it is only the Senate President of the Senate who has exclusive power to deem absence of a jailed serving member of the Senate in the meeting to be without a just cause for him to cease to be a member of the Senate as provided for in section 68 (1)(f) of the Constitution.

It is the writer’s stand that as long as the power to deem the absence of the jailed serving member of the Senate even if his absence is for the whole one hundred and eighty-one days in a year or more resides in the Senate President who has made it known in the decision of the Senate that the jailed serving member shall continue to receive his salary and allowances while still serving his jail term.

It is the writer’s stand that the provision of section 68(3) of the Constitution which empowers the Senate President to determine which of the absence of any member in the meeting of the House is with a just cause or without a just cause for any member whose absence in the meeting is for a period amounting in the aggregate to more than one-third of the total number of 181days during which the House meets in any one year is the Constitutional permissiveness of payment of remuneration to such to a jailed serving Federal Lawmaker from taxpayers’ money because as long as the jailed serving Federal Lawmaker remains a member of the Senate, he would continue to be entitled to salary and other allowances. Fortifying the writer’s reasoning is the provision of section 70 of the Constitution which provides thus:

‘A member of the Senate or of the House of Representatives shall receive such salary and other allowances as the Revenue Mobilization Allocation and Fiscal Commission may determination.’

In view of the forgoing, it is hereby recommended that the Constitution of the Federal Republic of Nigeria 1999(as amended) should be further amended with provisions for conditions for the disqualification of a serving member of the House to include sentence to imprisonment for any criminal offence and amending the provision of section 68 (1) (f) & (3) which empowers the Senate President or Speaker to determine which of the absence of any member is with a just cause or without a just cause for the seat of absent member to be vacant to read:

‘A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member without recourse to the court for any pronouncement if he is adjudged or sentenced to imprisonment for any criminal offence and his appeal shall not operate as stay.

It is equally recommended that there should be a provision for subsection of section 70 that any member of the Senate or of the House of Representatives adjudged or sentenced to imprisonment or death shall not receive salary and other allowances from the date of pronouncement of his guilt by a competent court and shall refund the any sum of money received as his salary and other allowances during pendency of his criminal trial within one (1) clear month from the date of pronouncement of his guilt by a competent court.

S.O. GIWA ESQ. a.k.a pentalk (Ibadan based Legal Practitioner) [email protected] 08035224192