EDO STATE HOUSE OF ASSEMBLY IMPASSE: SECTIONS 91 AND 11(4) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 APPLICABLE.
SAMSON R. OSAGIE, ESQ.
I have read and listened to so many legal arguments concerning the current impasse that currently beset our own Edo State House of Assembly.
I was a member of the Edo State House of Assembly between 1999 and 2007. I ascended to the House of Representatives up until 2015, all after training as a lawyer at Ile-Ife and the Nigerian Law School, Lagos 24 years ago.
Some of the beneficiaries of the legal hiatus relating to the Edo State House of Assembly just now are close friends but the arguments are very compelling that I cannot resist contributing to the debate about the constitutionality or otherwise of the goings on in my dear State- Edo. I therefore wish to do so in very strong terms.
Many of the arguments, seek to underplay the centrality and applicability of the provisions of Sections 91 and 11(4) of the Constitution of the Federal Republic of Nigeria 1999(as amended) hereinafter called “the Constitution “) to the current situation with the Edo State House of Assembly.
While some have argued that Section 102 of the Constitution is the operating provision applicable to the prevailing situation in the Edo State , others have canvassed the view that the objective conditions of the Edo State House Of Assembly today does not warrant the exercise of the powers of the National Assembly as contained in Section 11(4) of the Constitution.
On the contrary I submit from the very beginning that the relevant provisions of the Constitution applicable to the situation in the Edo State House of Assembly are these two provisions, to wit: 91 and 11(4).
Let me deal with the first issue regarding Section 102 and for the avoidance of doubt I reproduce the section hereunder:
“102. A House of Assembly may act notwithstanding any vacancy in its membership, and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate such proceedings”.
The contention of those who posit that this provision provides legitimacy for the current composition of the House of Assembly in Edo State is that the house having in their own view been inaugurated , it has a quorum to carry out legislative business and that those members who have not been sworn in are merely absent, whose absence cannot invalidate the proceedings of the Assembly in view of the above quoted provision and that Section 91 of Constitution does not have any relevance at all.
With profound respect I disagree with this position wholeheartedly and I will give my reasons hereafter, but what does Section 91 of the constitution say?. I also reproduce same verbatim hereunder:
“91 A House of Assembly of a State shall consist of three or four times the number of seats which that State has in the House of Representatives divided in a way to reflect, as far as possible nearly equal population:
• Provided that a House of Assembly of a State shall consist of not less than twenty-four and not more than forty members”
Having stated the provisions of the constitution,what are the facts on ground today as regards the composition of the Edo State house of Assembly vis-a-vis the requirement of the constitution.
On the 17th of June , 2019, Nine members were conscripted at night for swearing in at the chambers of the Edo State House of Assembly, the other 15 members were not part of the swearing in. Subsequently, two other members who were originally not part of the nine joined them to be sworn in, while two of those who were originally sworn in have since dissociated themselves from what they regard as a contrived oath taking against their will and established procedures known for the convening of a new parliament. In other words, while 10 members have accepted the Swearing in regardless of the flaws which the others have complained of, 14 members have refused to accept same.
Now assuming but not conceding that the inauguration was regular, only 12 out of 24 members are currently members of the Edo State house of Assembly who have taken oath, albeit under questionable circumstances.
Now one may ask , under the Constitution what constitutes a House of Assembly ? In this connection it must be stated that a House of Assembly is not the physical structure or building, but it is defined by its composition of members elected by different constituencies to make Laws for the peace, order and good governance of a geographical entity called a State. See Section 4(7) of the Constitution.
A glance through the entire gamut of the Constitution will reveal that the only Section that defines a House of Assembly by its composition is Section 91 quoted above. Section 102 only tend to give validity to certain proceedings of the Assembly where some members are absent or strangers are present, and that is only after such an Assembly has been properly constituted in terms of its membership as defined in Section 91.
Consequently, I submit, that there has to exist a House of Assembly first before it can perform any Legislative function. And for there be a House of Assembly under the Constitution it must have a membership of not less than 24 members and not more than 40 members.
Now , if the current composition of the Edo State House of Assembly were to be acceptable (and I do not think it is legally acceptable) it means that it has 12 members less than the minimum number of members required by the constitution. Note that, Edo State is not a Local Government Council Area in Nigeria, where you can have 10, 12 or 13 wards with each being represented by a Councillor. It
is a State defined and recognized by the Constitution.
Fortunately, the framers of the constitution envisaged this scenario hence section 91 is FIRST before section 102. In carrying out the business of the Legislature the Assembly has to be properly constituted first by the constitutionally allowed number of members before a forum can be determined. It is unlikely if not impossible to determine a quorum of a legislative assembly having less than the required membership in accordance with the constitution. This can only be the best interpretation of these provisions as it will smack of mischief to interpret it otherwise. In Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 365 the court held that it is duty of Court, particularly the Apex Court, to interpret the statute in accordance with the intention of the law makers. It cannot be the intention of the framers of our constitution to give validity to the kind situation prevailing in Edo State today.
Against the backdrop of the foregoing I submit that in Edo State today, there is no Legislature or House of Assembly properly so called that can legitimately exercise legislative powers for and on behalf of Edo people particularly the 24 constituencies that make up the State because if only 12 members have taken oath (even though two out of the 12 have resiled from the oath) 10 members cannot form a House of Assembly in any part of Nigeria under the 1999 Constitution.
If 10 or 12(as the case may be) members cannot constitute a House of Assembly, how can any one contend that such a group (not been a House of Assembly) can perform legislative functions under the guise that the others( who are technically not members) are absent from proceedings by relying on Section 102?. It is legally impossible! The mandatory provisions of Section 91 of the Constitution must first be complied with before Section 102 can ever apply. You cannot put something on nothing and expect it to stand, it will fall (See Lord Denning in Benjamin Leonard Mcfoy v United Africa Company Ltd Appeal No.67, 1960 ). Constitutionally, the act of non compliance with the required number of members of a House of Assembly is void and all its acts and actions emanating therefrom are a nullity. In the above case , Alfred Thomas, Lord Denning while distinguishing between void and voidable acts stated that:
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”
It is for the same reason I find the arguments of those who argue that so long as a quorum of the house is formed, the inauguration and plenary sessions of the same house can be held as laughable. You cannot have a quorum of a house whose membership falls short of the constitutional requirements and I submit further that only a recourse to a proper composition of the House of Assembly of Edo State such that it can have it’s full membership sworn in can bestow legitimacy on the 7th session of the Edo State House Assembly.
This brings me to the second issue, which is whether the National Assembly can exercise its constitutional powers under Section 11(4) of the Constitution in the light of the current impasse in the Edo State House of Assembly What does it say?:
“11(4) 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 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 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.”
From the above provision it is clear that the National Assembly has the powers to take over the legislative functions of a state house of Assembly under certain circumstances, which is ” …by reason of the situation prevailing in that state..”
Having regard to the facts of the non existence of a properly constituted House of Assembly (Legislative Arm) in Edo State as argued earlier, the prevailing situation in Edo State at the moment is that while the Executive and Judicial arms of the State Government are in a position to perform their functions, same cannot be said of the Legislative arm of the Edo State government. The obvious implication of that scenario for the entire governance structure of Edo State is that the Government of Edo State is incomplete.
That been so, it should and must NOW appear to the National Assembly NECESSARY or EXPEDIENT pursuant to Section 11(4) for it to assume the law making functions of the state House of Assembly (which is constitutionally non existent at the moment) for the purpose of making laws for peace, order and good governance of Edo State UNTIL such a time the Edo State House of Assembly is properly constituted in accordance with the law to resume Legislative functions.
It is incontrovertible that this provision does not afford the National Assembly the power of impeachment and so the Governor has nothing to worry about if it is difficult for him to ensure that the Legislative arm of his government is properly and constitutionally constituted. He is protected and may choose to prefer to seek legislative approvals for the several loans he wants to take, or approval for the State budget or other legislative imprimatur he may have to seek from time to time. Indeed , it will be cheaper for him because he will not be expected to pay salaries of National Assembly members. So let him relax and allow National Assembly to do its constitutional assignment. No sentiments, it is not an invitation to invade Edo State as he would want to make the world believe, rather it is the result of the situation currently prevailing in Edo State which himself in collusion with the Clerk of the House of Assembly created by shutting out majority of members elect from the nocturnal inauguration, the type the Supreme Court in Balonwu vs Attorney General of Anambra State said was not acceptable.
However, Section 11(4) does not envisage an unduly long time intervention by the National Assembly in the State, rather it is an interventionist provision to enable stakeholders put their house in order so as to have the duly elected representatives of the various state constituencies perform the functions of lawmaking for the state.
Against the backdrop of the foregoing analysis two questions comes to mind.
a. Why will a Governor who is the Chief Executive and Chief Security officer of a State allow a situation in his state to degenerate to a level that will compel other stakeholders to want to intervene in the governance of his State? In my humble opinion, the answer is ego and incapacity on his part to strike a balance between governance, Legality and politics. This was alluded to by no less a person than the State Chairman of the All Progressive Congress, Mr. Anselm Ojezua on Politics Today, a Program on Channels Television on Sunday 21st July,2019.
b. Between those who reject the way and manner the House of Assembly of Edo State was clandestinely and nocturnally inaugurated against parliamentary practice and norms and those who condoned the irregularity/illegality which is currently the prevailing situation in Edo State today, who should submit to the Law and Constitutionality? Again, I hold the view that illegality and unconstitutional behaviour cannot and should not be condoned no matter who is guilty of it, otherwise it will result in the Hobbessian state of nature when life is short ,nasty and brutish. I submit that it is in the interests of all the elected members of the Edo State House of Assembly to toe the path of constitutionality so that the State Legislature can enjoy legitimacy and wear the cloak of Constitutionality. Anything short of this, will engender injustice and a breach of the rule of law. It is also important for those who aspire to position of leadership in the house to strive to enjoy legitimacy too so that they can lead appropriately and in accordance with the rule of law rather than the barrel of the gun as it currently seem.
The consequences of the current impasse without recourse to the law are dire and portends grave danger to the social, political and economic health of the Edo State
It therefore behoves on all those who exercise suzerainty over the affairs of the State just now to reverse this trend by heeding the voice of reason and respecting the law without further delay.
~Samson R. Osagie Esq, is a Lawyer, Corporate Executive, Former Minority Whip of the House of Representatives and a Chieftain of the All Progressives Congress writes from Benin City.