Dilemma of a Senate and its president

David Mark The recent nullification of the election of Senate President David Mark and the anticipated outcome of the appeal he filed have become a dilemma for the Senate, writes, Soji- Eze Fagbemi.

Nigerians and, indeed, the Senate have not really realised the import of the recent nullification of the elections in two local government areas of Benue State. On Saturday, February 23, the election petition tribunal sitting in Markurdi, Benue State, nullified the elections which produced Senator David Mark as a senator of the Federal Republic of Nigeria. Mark rode on the ‘success’ of the mandate Nigerians believed was freely given to him to rise to the position of president of the Senate.

There is no doubt that since rising to the esteemed seat of Senate president, Senator Mark has done everything well even to the consternation of his opponents. According to the Senate spokesperson, Senator Ayogu Eze, whose election has also been nullified, but still waiting to be effected based on the legality provided him by his appeal, the Senate has been very pleased with Mark's leadership.

But Mark’s performance, as attested to by his colleagues and many Nigerians, cannot neutralise the legality or otherwise of how he got to the Senate. Was he dully elected? Was his election free and fair? Did the mandate purportedly given to him come under strict adherence to the Constitution and the electoral act?

The tribunal has spoken and the nation waits anxiously for the Court of Appeal which is the final arbiter in state and National Assembly elections. While canceling Mark’s election, the election petition tribunal ordered the Independent National Electoral Commission (INEC) to conduct “fresh and credible election” in Agagu and Okpokwu local government areas within 60 days. Justice C. I. Oriri, who delivered the judgment, said the results from the seven other local government areas were not enough to produce a representative.

More disturbing is the fact that the tribunal upheld the election results in the other seven local government areas and the All Nigerian Peoples Party (ANPP) candidate in the election, Usman Abubakar, who is also the petitioner, got the highest votes. While Abubakar scored 172, 636 of the votes, Mark scored 98, 029, thus, leaving a difference of 74, 607 in favour of the ANPP candidate.

The tribunal, however, made it clear that the results from the two local government areas, when conducted, should be added to the results to determine the eventual winner, a task considered by analysts to be herculean for the Senate president’s camp and the ruling Peoples Democratic Party (PDP).

As the best legal step to take, the Senate president has appealed the ruling, and this seems to have plaid down the seriousness of the issue at hand. Constitutionally, Mark is well covered to remain on his seat pending the determination of the case by the Appeal Court. However, what becomes of the exalted seat the day the judgment is given? The dilemma has already begun.

Posers in political circles are numerous and include: If the Appeal Court upholds the tribunal’s judgment, what happens? If another election is conducted and Mark wins, what follows? If the Appeal Court outrightly declares Abubakar the winner, what next? If Mark loses the bye-election, will there be any damage? Mark could also have an outright victory at the Appeal Court, hence, the status quo continues.

However good Mark could be in the performance of his duty as the Senate president, the Upper Chamber cannot operate in a vacuum of leadership. Another Senate president must emerge to take control of the legislative process. According to the Chairman, Senate Committee on Media and Information, “since the Senate president has already appealed that judgment, the Senate will continue to give him all the courtesies and respect due to his office. In fact, more than ever before, our loyalty to him is stronger now.”

Understandably, the limit of this loyalty is the result of the Appeal Court judgment. Definitely, the courtesies, respect and loyalty the Senate spokesperson expressed will end the day the Appeal Court gives its verdict, if the judgment goes against the Senate president. Eze gave an of this this when he said “the judgment means that the lower court (tribunal) has spoken, but we are waiting for the pronouncement of the appellate court which is the final authority on the election matter with regards to the National Assembly.”

Senator Mark understands this himself when he subsequently declared through his Special Adviser on Media and Communication, Kola Ologbondiyan, that the tribunal ruling only provided him a fertile ground to appeal. “We wish to state that the decision of the Benue State Election Petition Tribunal as delivered in respect of the April 21 election in Benue South Senatorial District has only provided us a fertile ground to go on appeal,” he said.

The Senate president obviously believes that justice will be done. So also is President Umaru Yar’ Adua and the retinue of the PDP elective office holders, including the Vice President Goodluck Jonathan, Speaker of the House of Representatives, Dimeji Bankole, and the Chairman of PDP Board of Trustees (BOT), former President Olusegun Obasanjo, who all rallied support for him. They all assured him of their unflinching support ahead of the appeal.

As expected of the leader of the party, President Yar’ Adua, spoke with Mark and extolled his leadership qualities, assuring him that he would rally the support of party’s members across board in his favour. Of course, it is admissible in law to prove with facts and figures one’s case before the court. But this is the limit to which the president can mobilise support in favour of the Senate president. With his avowed commitment to the rule of law and the way he has adhered to its tenets, President Yar’ Adua’s support and those of the eminent party leaders and Nigerians who at present in solidarity with Mark will equally end if the Appeal Court upholds the tribunal’s verdict and throws away Mark’s appeal.

But if it goes that way and another election is to take place, who holds forte? Though, Mark, in all honesty, has done amazingly well, but will the Senate wait for him despite the uncertainty of his possible re-election? Even if his colleagues so adore him and are willing to reserve the seat for him for that period of time, is it constitutional?

Eventhough he is in opposition, lead counsel to the ANPP presidential candidate, Alhaji Mohammadu Buhari, in his petition against President Yar’Adua, Mr. Mike Ahamba (SAN), gave an insight into this. He said: “Senators would determine whether to keep the Senate Presidency for David Mark, if the Court of Appeal eventually upholds the nullification of his election.”

He pointed out that while Mark still had the option of appeal, “he will be at the mercy of his colleagues on the retention of his seat, if he eventually loses at the Appeal Court and wins a fresh election.” To former Governor of Oyo State, Alhaji Lam Adesina, “he is a member of the PDP and anything can happen. With their absolute majority in the Senate, they may decide to appoint a Senate president protem pore pending his return or in the alternative, depending on the thinking within the party. They may as well decide to go for a substantive Senate president.”

However, signals from the upper chamber are not helping this point of view as some senators from the North Central zone, where the Senate Presidency was zoned started jostling for the position immediately after the tribunal’s pronouncement, while lobbyists are already strategically positioning their preferred candidates for the job.

Though, the Senate president is trying, albeit unsuccessfully, to take his colleagues into confidence that he would win his appeal, while he entrust them with his determination and readiness to continue his good work as the President of the Senate, there are subterranean moves by interest groups within the Senate to position their candidates for the job, while individuals who see themselves as potential Senate president continue the underground work to secretly lobby their colleagues.

As a senator confided in a group of journalists during the week, “what the majority of the senators are waiting for is the pronouncement of the Court of Appeal. Are we not all Nigerians? You will see what will happen as soon as the court gives its verdict. The only solution to this problem is for the court to set aside the ruling of the lower court and declare Mark the winner, otherwise, his era as Senate president is gone.

“They are all pretending, you all know that some of them are already positioning themselves. We are all in a dilemma and until the judgment comes, you can’t say what will happen. But I can assure you that what will happen will definitely depend on the direction of the ruling.”

It is of necessity at this point that Mark himself, as well as his colleagues in the Senate, will be in dilemma. Going by the words of the Director of David Mark’s Campaign Organisation, Chief Enyi Obande, after the ruling, the Senate president is ready for the election and is determined to win the two local government areas.

But the veracity of this opinion could be questioned with the situation on ground in the senatorial district involved. For the story to be interesting, Mark must record an overwhelming victory in the two local government areas to upstage his opponent. Of course, this is very well possible with the intimidating force and power of the ruling party, not to play down its operation tsunami, usually deployed in capturing much needed electoral zones whenever the need arises.