Edo State House of Assembly Crisis: The Futility of National Assembly’s Intervention
James Akhigbe writes about the All Progressives Congress’ political crisis currently rocking Edo State, vis a vis the legality or otherwise, of the ‘ultimatum’ given by the Senate to the Edo State Governor, to issue a fresh proclamation to inaugurate the Edo State House of Assembly
Introduction
The National Assembly, in purported exercise of its supervisory jurisdiction over a State House of Assembly, has by the latest resolution of the Senate, which adopted the earlier position of the House of Representatives given the Executive Governor of Edo State, HE Godwin
Obaseki a 7- day ultimatum to issue a fresh proclamation to inaugurate the State House of Assembly. The Senate has also resolved to take over the functions of the State House of Assembly in the event the Governor
fails, refuses or otherwise neglects to comply with the “Directive”.
Without any equivocation, these resolutions constitute a blatant, egregious and unmitigated assault on the concepts of federalism, democracy, the rule of law and constitutionalism. They have, rather than douse tensions, exacerbated the crisis in the Edo Chapter of the All Progressives Congress (APC). Where does the National Assembly derive its power, to issue a directive or instruction to a sitting Governor to repeat the performance of a constitutional ‘duty’? How can the resolution assist those legislators-elect, who have refused to present themselves for inauguration? These and others, are the issues to be
“IT IS PARADOXICAL THAT, THE INAUGURATION OF A HOUSE OF ASSEMBLY THAT IS 100% APC, IS ENMESHED IN AVOIDABLE CRISES FUELLED BY INTERNAL AND EXTERNAL FORCES DETERMINED TO EXERT THEIR NEW-FOUND POWER, AIMED AT APPROPRIATING TO THEMSELVES, UNDUE POLITICAL DOMINANCE”
dealt with in this article.
Separation of Powers
The National Assembly and the State Houses of Assembly are a creation of the 1999 Constitution of the Federal Republic of Nigeria (as amended). While Section 4(1) vests the legislative powers of the Federal Republic of Nigeria in a National Assembly consisting of a Senate and a House of Representatives, subsection 6 of the same section, vests the legislative powers of a State on a State House of Assembly. The Constitution has also clearly delineated the sphere of influence, in the respective exercise of these legislative powers. Section 5 vests Executive powers on the President at the Federal Level and the Governor at the State Level, while Section 6 vests on the Courts, Judicial powers.
Thus, the 1999 Constitution does not only make Nigeria a Federation, it also guarantees the doctrine of separation of powers, both horizontally and vertically. In a Federation, the central government and the federating units (in the case of Nigeria, the States) are co-ordinate with and independent of one another in the exercise of the powers allotted to them by the Constitution, which is the basic law, the grundnorm of the land. Thus, no one is subordinate or inferior to the other; each has it own sphere of influence.
The power or authority to intervene and take over the functions of a State House of Assembly by the National Assembly is contained in Section 11(4) of the 1999 Constitution (as amended). The Section provides as follows:
“At any time when any House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in that State, the National Assembly may make such law for the peace, order and good governance of that State with respect to matters on which a House of Assembly may make laws as may appear to the National Assembly to be necessary or expedient until such time as the House of Assembly is able to resume its functions; and any such laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the State”.
Provided that nothing in this Section shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the State from office. For purposes of clarity as to the intendment of these provisions, Section 11(5) states further:
“For the purposes of subsection
(4) of this section, a House of Assembly shall not be deemed to be unable to perform its functions so long as the House of Assembly can hold a meeting and transact business”.
In the State House of Assembly elections held in March this year, the APC cleared the available 24 seats in Edo State. One would have expected that the unprecedented feat would 3 provide a congenial environment for a robust legislative/ executive relationship in the State. However, events of the last couple of weeks have shown clearly that, the party’s internal dynamics and contradictions would make such expectations far-fetched, if not a mirage.
After the Presidential elections, where the People Democratic Party (PDP) won narrowly, the Governor had embarked on intensive campaigns across the State pleading with voters to return the APC candidates, so as to make the business of governance less herculean for him. Obviously, the Edo electorate heeded these gubernatorial exhortations. It is paradoxical that, the inauguration of a House of Assembly that is 100% APC, is enmeshed in avoidable crises fuelled by internal and external forces determined to exert their newfound power, aimed at appropriating to themselves, undue political dominance.
Proclamation The power of a Governor of a State to effectuate the inauguration of a State House of Assembly, is provided for in Section 105(3) of the Constitution. It states thus:
“Subject to the provisions of this Constitution, the person elected as the Governor of a State, shall have power to issue a proclamation for the holding of the first session of the House of Assembly of the State concerned immediately after his being sworn in, or for its dissolution as provided in this session”
Pursuant to these provisions, the Edo State Governor issued a proclamation for the inauguration of the State House of Assembly.
The Clerk of the House, who is the Head of the Administration, inaugurated the House upon the receipt of the Letter of Proclamation. It has been established that, only nine (9) members were present on the day of the inauguration. Three other members have since come forward, for their inauguration. Others have since refused to present themselves for inauguration, and swearing-in.
Opinions have been diverse or divided, with regard to the constitutionality or proprietary of the inauguration, with some contending that there should be a repeat of the Executive exercise of the issuance of a proclamation. The major plank of this argument, is the fact that it was “unconstitutional” for the Clerk to have inaugurated only 9 of the 24 members.
It is submitted that, once a proclamation is issued by the Governor, pursuant to Section 105(3) of the 1999 Constitution (as amended), the Governor becomes functus officio. Nobody has denied that the Governor issued a letter of proclamation, addressed to the Clerk of the House. In fact, the latter has publicly confirmed receipt of such letter. In the circumstances, the Governor has discharged his mandatory constitutional obligation. The constitution does not provide for a multiple issuance of proclamation.
Inauguration As to the second argument regarding the validity of inaugurating 9 members, reference is made to Section 96(1) of the Constitution which states thus:
“The quorum of a House of Assembly shall be one third of all the members of the House”.
One-third of members of Edo State House of Assembly is eight, and this is less than the number inaugurated by the Clerk. Some critics have contended that, the requirement of one-third is only applicable to a House that has been duly inaugurated. This may well be so. However, where there is a lacuna in a law or the Constitution, recourse is had to conventions or tradition. One-third is regarded as the quorum for all Assembly’s meetings, corporate board meetings and other social gatherings. In fact, in Saraki v FRN (2016) LPELR-40013(SC), one of the issues for determination by the Supreme Court in the interlocutory appeal by the Appellant, was whether the Code of Conduct Tribunal was properly constituted when it sat with two members, contrary to the provisions of paragraph 15(1) of the 5th schedule to the 1999 Constitution. The Apex Court held that, although the paragraph provided for 3 members, the proceedings conducted by two of the members were valid and constitutional.
We submit that, the inauguration of 17 July, 2019 conducted by the Clerk of the House is valid, and the same cannot be impeached on that ground.
We equally submit that, the “directive” to the Edo State Governor to re-issue a proclamation for a fresh inauguration is totally ultra vires the National Assembly, null and void. It borders on legislative meddlesomeness, and rascality. It is totally counter-productive, and constitutes a veritable recipe for the escalation of the crisis.
De facto, de jure, the Edo State House of Assembly is in session; it cannot therefore, be deemed to be incapable of meeting and to transact business.
Powers of the National Assembly The power conferred on the National Assembly, to perform the functions of a State House of Assembly, is not at large. It is circumscribed by the same Constitution.
It is curious that the National Assembly is eager to assume, perhaps, inadvertently, judicial functions vested in the Courts by Section 6(6) (b) of the 1999 Constitution which states thus:
“The Judicial Powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”.
It is clear from these provisions, that it is only the courts that have the constitutional power to declare any act of the Executive a nullity, and order a repeat of such action in order to bring it in line with the provisions and the general intendment of the Constitution.
Assuming without conceding, that the proclamation issued by the Edo State Governor was constitutionally defective, is it within the constitutional province or remit of the National Assembly to declare it invalid, and to order a repeat of the exercise? The answer, in our view is capital NO.
The power of judicial review, has, in a plethora of authorities, been re-affirmed by our superior courts of record. In A.G. Bendel State v A.G. Federation (1981) 4 SC, the Apex Court set aside the Allocation of Revenue (Federation Account etc) Act of 1981, as being unconstitutional. The Apex Court also in A.G Federation v Atiku Abubakar (2007) LPELR-SC set aside the decision by President Obasanjo to declare vacant, office of the Vice-President.
It is therefore, futile, infantile, reckless and totally unacceptable for the National Assembly to arrogate to itself the power to declare invalid an action done by a Governor, in the due exercise of his Constitutional duties. The purported resolution of the National Assembly with respect to the crisis in Edo State House of Assembly, is a clear manifestation of the poverty of our legislative process, and an indication that, our attempts at democratic consolidation are yet to find resonance with the relevant institutions.
Thus, it is clear that, it is only a court of competent jurisdiction that can declare invalid, the proclamation issued by the Edo State Governor. Any other person or institution purporting to set aside the exercise of an executive power is a meddlesome interloper, a busy body that should be ignored, in the interest of democracy. It is a matter of regret that, 20years into the practice of democracy in Nigeria, some people are yet to exorcise from their psyche, the spirit of military dictatorship.
More worrisome is the fact that, the National Assembly appears to treat the Judiciary with utmost contempt. This writer is aware that parties to the crisis have approached the courts to ventilate their grievances, and have, thereby submitted themselves to the jurisdiction of the Courts. A respectable institution is therefore, expected to tarry awhile for the judicial process to take its full course, and to await a just and unhindered adjudication of the issues. This precipitate action by the National Assembly will definitely escalate the crisis, rubbish the Judiciary, and destroy the integrity of the Assembly itself. There is no evidence that the Clerk has refused to inaugurate any of the 12 absentee legislators, upon presentation for such exercise. This action is part of the incipient emanations from the 9th Assembly, which are capable of eroding the credibility of the otherwise revered institution.
If one may ask: how will the action of the National Assembly enure to the benefit of the legislators-elect, who are yet to be inaugurated? The National Assembly has no power to issue a proclamation for the inauguration of a House of Assembly, a fact acknowledged by them; neither can they remove the Governor nor the Deputy Governor in the event of a take- over. So, what happens if the National Assembly passes a law or resolution consequent upon its take-over and such law or resolution is ignored by the Governor? The National Assembly lacks power of disciplinary control over a Governor, and the proviso to Section 11(4) prohibits it from removing him.
Conclusion If the National Assembly carries out its threat, the twelve legislators who are yet to be inaugurated will remain legislators-elect, and this, to this writer, is injurious to their interest. Those rejoicing that the National Assembly will soon take over the Edo House of Assembly, are merely living in a fool’s paradise; they may yet find that their desire to be called Honourable members, will remain a tall ambition.
In the circumstances, and having regard to the realities on ground, this writer appeals to the main gladiators, especially the APC National Chairman, Comrade Adams Oshiomhole and the Governor, to sheathe their swords, come together in a brotherly manner, devoid of external influences, to resolve the impasse. Positions in the House, can be shared in a manner that will result in a win-win situation. If this is not done, I’m afraid that, the APC may yet sing its nunc dimitis in Edo State in 2020.
James A. K. Akhigbe Esq, Legal Practitioner, Lagos
“.....THE “DIRECTIVE” TO THE EDO STATE GOVERNOR TO RE-ISSUE A PROCLAMATION FOR A FRESH INAUGURATION, IS TOTALLY ULTRA VIRES THE NATIONAL ASSEMBLY, NULL AND VOID”