The question of senators appointed by the outgoing President should or ought to tender their resignations to an incoming President would seem to be an issue on which there are mixed views. Some hold the view that senators should tender their resignations while others hold the contrary view.
According to Section 40 (2) (a-b) of the Constitution the President has been given the power to appoint 16 senators on the advice of the Prime Minister, six on the advice of the Leader of the Opposition while subsection 40(2)(c) empowers the President in his discretion to appoint nine senators from outstanding persons from economic or social or community organisations and other major fields of endeavour.
The President has also been vested with the power under Section 43 (e) of the Constitution with the advice of the Prime Minister and the Leader of the Opposition to declare vacant the seats of their senators at any time. The President may also under this section at his discretion declare vacant the seat of any or all of his nine senators at will.
The power vested in the President to appoint nine senators is his alone and is subject to the advice and/or direction of no one. Indeed the persons appointed by him would be deemed to be persons of integrity and competence, capable of providing the nation with detached and independent views on matters being considered by Parliament.
However, an incoming President may find no congruence with the personal characteristics and expertise of the senators appointed by the outgoing President and as a consequence he may in his discretion declare vacant the seat of any or all them and appoint a person or persons of his choice. This would seem to be the purport and intent of Section 43 (e) of the Constitution.
Indeed the Prime Minister and Leader of the Opposition have from time to time invoked the discretionary powers vested in them by Section 43 (e) of the Constitution by advising the President to remove one or more of their senators and replace him/them by others in accordance with the provisions of Section 40 (1) of the Constitution. One of the characteristics of a nominated senate is that it is constituted of a preponderance of government-nominated members in order to ensure that the Government is not disabled from governing, that members would not be able to frustrate the will of the duly elected Government.
The philosophy and rationale inherent in vesting the Prime Minister and Leader of the Opposition with the right to have senators of their choice appointed and removed is clearly to ensure that their senators conform to party directives and toe the party line of their respective political parties.
Similarly, the President may at any time declare the seat of any of his senators who in his opinion has failed to discharge his functions satisfactorily and appoint another person who in his discretion may be sufficiently qualified to serve the national interest.
Although the appointment of senators by the President is deemed to be apolitical the President's appointment would on the other hand appear to be otherwise since he owes his position to the political party with the majority in Parliament. As a consequence there has been that lingering presumption that the appointment of the President's Senators may not be without political influence. The recent request by the Prime Minister of the outgoing President not to appoint members of the Integrity Commission and his acceding to her request, a request which may or may not have been unreasonable, clearly evidences the political influence of the executive.
The Constitution, however, imposes no duty or obligation on senators appointed by an outgoing President to tender or offer their resignations to a newly appointed President during the term of a sitting Parliament nor has there been established any custom, practice or convention to that effect. On the other hand any senator may, if he so desires, offer his resignation to an incoming President, which he may accept or reject.
* Kenneth Lalla is former
chairman of the Police