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23.07.2019 Feature Article

The House Of Representatives ‘Resolutions’ On Edo State House Of Assembly Are Ultra Vires

The House Of Representatives ‘Resolutions’ On Edo State House Of Assembly Are Ultra Vires

The House Of Representatives ‘Resolutions’ On Edo State House Of Assembly Are Ultra Vires

The House of Representatives recently set up an Ad-hoc committee to probe the ‘crisis’ wrecking the Edo State House of Assembly. The Abdurazak Namdas-led probe panel has completed its assignment and submitted its report with the following recommendations:

(1) That the Governor of Edo State, Mr. Godwin Obaseki, in the interest of peaceful coexistence of the state, should issue a fresh proclamation within one week in line with Section 105(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), stating the date, time and venue (of the inauguration), and publish in any national daily and television station.

(2) That all actions taken by the 7th Assembly members should be declared null and void pending proper inauguration.

(3) That all members of the Edo State House of Assembly, including those who have been inaugurated and those who have not been inaugurated, should dissolve their factions in the interest of peace and stability of the House, with the view to moving the state forward.”

(4) It also recommended that the that the Inspector-General of Police, Mohammed Adamu; and the Director-General of the Department of State Security, Yusuf Bichi, should seal off the Edo Assembly until a proper inauguration was conducted to provide adequate security to allay fears of intimidation and threat as alleged by members-elect.

(5) The House of Representatives threatened that the National Assembly would take over the affairs of the Edo State Legislature if the ‘resolutions’ were not complied with.

In my candid opinion, the aforementioned “resolutions” by the House of Representatives amounts to gross misdemeanor and Legislative rascality to the extent of the parliamentarians directing an elected governor of a federating unit in a Presidential System of Government to comply with its “resolutions”. My argument is anchored on the fundamental principles of the Rule of Law, the Doctrine of Separation of Powers and the tenets of Constitutional Democracy which are intrinsic values and practice in a Presidential System of Government.

I shall attempt to holistically juxtapose these “resolutions” vis-à-vis the Rule of Law, the Doctrine of Separation of Powers and 1999 Constitution of the Federal Republic of Nigeria as amended as my analytical trajectory.

The 1999 Constitution of the Federal Republic of Nigeria (as amended) is the fundamental norm and the sacred symbol as far as our constitutionalism and democracy is concerned. Any act that violate the Constitution will certainly be declared as unlawful and of no effect by the court of law on whose Constitutional responsibility lies the task of interpreting the Constitution without ambiguity. The established principle of law is that no part of the Constitution should be read in isolation. See Inakoju v. Adeleke, wherein the Supreme Court of Nigeria held “that to invoke a session of the Constitution, you must comply with the entire section in totality, a section of the Constitution cannot be read in part.”

  1. Issuance of a Fresh Proclamation Letter

According to Section 105(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) inter alia “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 section”. The role of Governor Godwin Obaseki of Edo State as envisaged in Section 105(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was to issue a Letter of Proclamation, which he did on June 17th 2019 and his constitutional duty ended there in view of the subject matter. The Constitutional duty of the Clerk of the Edo State House of Assembly, Alhaji Yayaha Audu Omogbai commenced thereafter and he did the needful with the Letter of Proclamation issued to him by the Governor Godwin Obaseki which culminated to the inauguration of the 7th Edo State House of Assembly. Nine out the of 24 members-elect were present after invitation were duly sent out to all members-elect. A quorum was formed (one-third of the members) to be able to sit, and Rt.Hon Frank Okiye was elected a Speaker. The Nigerian Constitution never provided for the re-issuance of Letter of Proclamation. A Letter of Proclamation is issued once in a life time of a Legislative Assembly and not twice, just like the University Degree Certificates. The one already issued by Governor Godwin Obaseki on June 17th 2019 is still subsisting and valid till date. Therefore, the Governor cannot issue another Letter of Proclamation so as not to set a dangerous precedent.

  1. The Voiding of the Laws and actions taken by the Edo State 7th Assembly

The House of Representatives “resolutions” which states “that all actions taken by the Edo State 7th Assembly members should be declared null and void pending proper inauguration amounts to abuse of powers and arrogating the Constitutional duties of the Judiciary to its self which negates the Doctrine of the Separation of Powers. It’s only a competent Court of Law (Judiciary) that is empowered by our Statute to interpret the Constitution as well as nullify and void any actions or laws that are inconsistent with our Constitution. Section 1(3) of the 1999 Constitution as amended states that “if any other Law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other Law shall to the extent of the inconsistency be void”. The supremacy of the Constitution as provided by Section 1(1) of the Constitution is binding and sacrosanct.

On July 2, 2019, a Federal High Court sitting in Benin City, Edo State, ordered the National Working Committee of All Progressives Congress, APC; the Inspector General of Police (IGP); the Commissioner of Police in Edo State, Mallam Lanre Issa-Onilu, who are defendants in an ex-parte motion of the Plaintiffs/Applicant suit filed by Alhaji Yayaha Audu Omogbai, Clerk of the Assembly and the Edo State House of Assembly on June 28, 2019. The Federal High Court order restrained the defendants, their servants and agents, not to interfere, disrupt or obstruct the constitutional duties of members of the Edo House of Assembly. The trial judge, Justice M.G. Umar ordered: “That an interim order of injunction is hereby granted restraining the defendants by themselves, their servants, agents, officers or privies from interfering with, obstructing or harassing, in any manner whatsoever, the plaintiffs in the performance of their constitutional duties as the legislative arm of the Edo State government pending the hearing and determination of the motion on Notice for interlocutory injunction. Justice M.G. Umar also barred them from further publishing in any newspaper or other media, any inciting publications concerning the inauguration of the 7th Assembly of the Edo State House Assembly and the election of the Speaker and Deputy Speaker which took place on 17th June, 2019 in the Edo State House of Assembly. The case was adjourned to 9th October 2019. The various ad-hoc committees set up by the National Assembly for the purpose of the Edo State House of Assembly is sub-judice of Justice M.G. Umar court’s order.

  1. The ‘Resolution’ Of The National Assembly To Seal And Take Over The Affairs Of The Edo State House Of Assembly.

On the House of Representatives “resolution” that the National Assembly would take over the affairs of the Edo State Legislative Arm of Government, if their “resolutions” were not complied with, is not only illegal but ultra vires and unconstitutional. Indisputably, Section 11 subsection 1, 2, & 3 of the Nigeria 1999 Constitution as amended make clearly on that the National Assembly may make laws for the Federation or any part thereof but with a proviso. Furthermore, Section 11 subsection 4 of the Nigeria Constitution, clearly states the prevailing circumstances wherein the National Assembly can perform the functions of the House of Assembly of a state. Explicitly, It states inter alia: “At any time when the 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 laws for the peace, order and good government 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 session shall have effect as if they were laws enacted by the House of Assembly of the State: Provided that nothing in this session shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the State from office.” In addition, Section 11(5) states inter alia: “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.” Consequent upon the forgoing, it is imperative and constructive to categorically affirm that the state of affairs in the Edo State House of Assembly and in Edo State in general in comparison to what was envisaged by Section 11 subsection 4 & 5 of the 1999 Nigeria Constitution as amended, is no doubt completely different. Simply put, within the confines of our Constitution, neither the Abdurazak Namdas-led House of Representative Ad-hoc committee’s recommendations nor the Senate Ad-hoc committee’s recommendations can stand the test of legal challenge for the proposed ‘take- over’ of the Legislative functions and duties of the Edo State House of Assembly by the National Assembly, as it being ignorantly speculated. The Edo State House of Assembly has been holding official meetings and transacting of its statutory Legislative business. To buttress the functionality of the Edo State House of Assembly, few days after June 17th 2019, the date of the inauguration of the 7th Edo State House of Assembly, Lawmakers in the Edo State House of Assembly on Monday, 22nd of July cut short their long adjournment to admitted new members-elect. The speaker, Rt. Hon. Frank Okiye sworn in two members-elect. They were Hon Emmanuel Okoduwa (Esan North East II) and Hon Sunny Ojiezele (Esan South East). Subsequently, Hon. Emmanuel Agbaje, member-elect representing Akoko-Edo Constituency II was sworn-in on Wednesday, July 3, 2019, as honourable member, bringing the total number of the inaugurated members of the 7th State Assembly to (12) twelve.

On July 10th, 2019, the Legislative business, official meetings and transactions of the Edo State House of Assembly included the constitution of a five-man ad-hoc committee to screen the six Commissioner nominees sent to the House by Governor Godwin Obaseki for confirmation. The six Commissioner nominees were Hon. Damian Lawani; Felix Akhabue; Moses Agbakor; Joe Ikpea; Momoh Oise Omorogbe and Marie Edeko. The five-man ad-hoc committee was chaired by the leader of the House; Roland Asoro has the Deputy House Leader, Marcus Onobun, Ephraim Aluebhosele, Emmanuel Agbaje and Uyi Ekhosuehi as members. Another Legislative transaction of that day included the first reading during plenary of a bill to establish the Edo State College of Agriculture and Natural Resources. The Speaker of the Edo State House of Assembly, Rt. Hon. Frank Okiye, thereafter appointed a former member of the House of Assembly, representing Owan West Constituency, Hon. Blessing Agbebaku, as his Chief Of Staff. All these are Constitutional duties carried out as members of the Edo State House of Assembly.

Again on Monday, July 15, 2019, the Edo State House of Assembly (EDHA) cleared six commissioner-designate whose names were sent to the House by Governor Godwin Obaseki. During its plenary session at the Anthony Enahoro Assembly Complex, in Benin City, the Speaker, Rt. Hon. Frank Okiye, introduced the commissioner-designate to the House after Chairman of the Screening Committee, Hon. Roland Asoro, reported that the House of Assembly Ad-hoc Committee has screened the Commissioners-designate as nominated by Governor Godwin Obaseki for confirmation. The six commissioners-designate were Hon. Damian Lawani; Felix Akhabue; Moses Agbakor; Joe Ikpea; Momoh Oise Omorogbe and Marie Edeko. This is also the Constitutional duty performed as the Legislative Arm of Edo State Government. Consequent upon these obtrusive evidence of the functionality of the Edo State House of Assembly in the performance of its Legislative business, official meetings and statutory transactions, the contemplated reasons as envisaged by Section 11 of the 1999 Nigeria Constitution as amended, to empower the National Assembly to take over the functions of the Edo State House of Assembly is not applicable. There is no doubt as to whether the Edo State House of Assembly is able to perform its statutory functions and duties because the House of Assembly is holding regular meetings and transacting Legislative business as stipulated by the Constitution of the Federal Republic of Nigeria. Therefore, the Constitutional functions and duties of the Edo State House of Assembly cannot be taken over by the National Assembly; otherwise there will be an infraction on the Constitution which will precipitate political anarchy and the breakdown of law and order that will do no one any good.

Finally, a judicial interpretation of Justice M.G. Umar will not be a bad option if the Defendants can maintain status quo pending the determination of the suit on the 9th of October, 2019. Otherwise, the remaining twelve (12) members-elect elect should perfect their documentation and present themselves before the Speaker of the Edo State House of Assembly for inauguration in the interest of the overall peace and development of Edo State.

CLIFFORD OGBEIDE
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Clifford Ogbeide
Clifford Ogbeide, © 2019

The author has 14 publications published on Modern Ghana. Column Page: CliffordOgbeide

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