A legal practitioner and an aspirant for the Peoples Democratic Party (PDP) ticket for the Enugu West Senatorial District in the 2019 general election, Chief Ogochukwu Onyema, has come under severe criticism for asking a Federal High Court to declare vacant the seat of the former Deputy President of the Senate, Senator Ike Ekweremadu.

In the lawsuit marked FHC/EN/CS/7/2022 filed at the Federal High Court Enugu, Onyema also sought  an order of the court “commanding and mandating” the National Chairman of the PDP, Dr. Iyorchia Ayu and PDP to “select, nominate, and forward” his name to the National Assembly “as a replacement” for Senator Ekweremadu.

He further prayed the court to command and mandate the Chairman of the Independent National Electoral Commission (INEC), Prof. Mahmood Yakubu and INEC to “withdraw or revoke, as the case may be, the Certificate of Return earlier issued to the 3rd defendant (Ekweremadu) and issue a fresh Certificate of Return” to him.

It is recalled that former Deputy President of the Senate, who is currently standing trial along with his wife over alleged organ harvest for their sick daughter, had at the PDP senatorial primary election, which took place at Awgu, Enugu State, on 2nd October 2018, polled 690 votes to emerge winner, defeating his closest rivals, Mr. Isaac Okah, who polled 84 votes and Chief Onyema polled a distant 61 votes to place third.

But in an Originating Summons, Onyema wants the court to determine, among others: “Whether it is the intendment and contemplation of the Constitution of the Federal Republic of Nigeria (1999) as amended 2018; the Senate Standing Orders 2015 as amended; and the Senate Legislative Calendar 2022, that the seat of Enugu West Senatorial District in the 9th Senate will be declared vacant by default, if the Senator representing, without just cause absent from sittings of the Senate for a period amounting in the aggregate to more than one-thirds of the total number of days during which the Senate meets in any one year, which is one-thirds of 181.

“Whether by virtue of the continuous absence of the 3rd defendant (Ekweremadu) from the Senate since 22nd day of June 2022 or days prior (when he last attended the sitting of the Senate), up till the date of adaptation of this Summons, or any other date thereafter, it could be said that the 3rd defendant is still validly representing the plaintiff (Chief Onyema) and Enugu West Senatorial District, as provided by the Constitution of the Federal Republic of Nigeria, and the Senate Standing Order 2015 as amended, in Nigeria Senate.

“Whether going by the heinous allegations levelled against the 3rd defendant and his incarceration at the United Kingdom, Wandsworth Prison, since around 22nd day of June 2022 up till the date of adoption of this Summons, the 3rd defendant can be said to have defaulted and be away from representing the plaintiff and Enugu West Senatorial District in the House of Senate, for no just cause, as provided for in the Constitution of the Federal Republic of Nigeria (1999) as amended in 2018.

“Whether by virtue of the 3rd defendant’s travails, which was not caused by the plaintiff or any of his constituents, and going by the provisions of the Constitution of the Federal Republic of Nigeria (1999) as amended, the Senate Standing Order 2015 as amended, it is wise and best, for the 3rd defendant to honourably agree that he has defaulted in representation, withdraw from his position, and mandating the 1st and second defendants (the Senate President and the Senate) to declare his position vacant by default, and instantly communicate same to 4th, 5th, 6th, 7th, and 8th defendants (Clark to the National Assembly, Dr. Ayu, PDP, Prof. Yakubu, and INEC) for appropriate and timeous actions, of his replacement with the plaintiff, by the 5th and 6th defendants. And Certificate of Return to be issued to the Plaintiff by the 7th and 8th defendants”.

However, an Enugu-based legal practitioner, Evang. Chinenye Orji, has faulted Onyema, saying the lawsuit flies in the face of the laws of Nigeria, including the Electoral Act, noting that Section 68 of the Constitution expressly lists the grounds and processes for declaring a Senator’s seat vacant.

He said that even if a vacancy occurs for any reason, the seat wouldn’t be inherited by anybody, as Section 76 of the Constitution provides that INEC must conduct a fresh election within 30 days to fill such vacancy.

“Section 68 (1) provides, among others, that 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 he becomes a member of another legislative house; 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; he ceases to be a citizen of Nigeria; without just cause he is absent from meetings of the House of which he is a member for a period amounting in the aggregate to more than one-third of the total number of days during which the House meets in any one year; being a person whose election to the House was sponsored by a political party, he becomes a member of another political party without a division or a merger affecting the party that previously sponsored him; or the presiding officer receives a certificate under the hand of the INEC Chairman stating that the provisions of Section 69 of the Constitution in respect of the recall of a lawmaker have been complied with.

“But even at that, Section 68 (3) provides that a Senator or House member shall not be deemed to be absent without just cause from a meeting of the House 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’.

He said none of these applies to Senator Ekweremadu yet, as he had not been absent for no just cause or for one-thirds of the total number of sitting of the Senate in 2022.

“A year is 365 days, but remember that Senate sits for only three days in a week, that if from Tuesday to Thursday. Ekweremadu was arrested in the UK around 22nd June and Senate on recess in July and returned on 20th September. So, there is no way he could be absent from session for one-thirds of the seating between now and December because the Senate will only sit for a maximum of 42 days. When you take the Christmas it will be much less. And if you add New Year and 2023 election recess, there is no way he could have absented himself from plenary for the remaining part of the lifespan of the Senate, which will most likely end in May 2023”, he stated.

“Besides, Onyema placed third in the said primary, not second and even if he came second, he would still not inherit Enugu West seat because the Constitution Section 76 of the 1999 provides that where a vacancy exists in the National Assembly, such vacancy shall be filled within 30 days vide an election on a date to be appointed by INEC.

“Also, the Electoral Act 2022 provides that you cannot occupy an elective position without participating in al the processes leading to the election. So, did O.A.U Onyema contest the senatorial election in 2019? The answer is ‘No’.

“We know Onyema has always wanted to be in the Senate, being a perennial senatorial aspirant. But must not be through the backdoor”, Orji concluded.