Lawyers flay NASS over Edo Assembly crisis, declares takeover threat illegal

Some senior Nigerian lawyers have criticised the threat by the National Assembly to take over proceedings in the Edo State House of Assembly if the governor refuses to make another proclamation to inaugurate the Assembly afresh. Governor Godwin Obaseki had earlier inaugurated the Assembly with 12 of the 24-member lawmakers absent.

While examining the issue yesterday, Lagos-based lawyer, Dr. Abiodun Layonu, said the National Assembly could only intervene when it had become impossible for a state House of Assembly to function, citing section 11 (4) (5) of the 1999 constitution as amended.

“The truth of the matter is that it is only a court of competent jurisdiction that can declare the proclamation of the governor as illegal and order for a fresh one,”

“If they were invited and they neglected to attend, then they have waived that right. Therefore, it is the court that would ultimately resolve the issue. If the court finds out that the proclamation was not properly done, it would order for a fresh one. It is high time we began to test these matters in court; let the courts provide direction and guidance against future occurrence so we would be properly guided. It would be constitutionally and legally wrong to do it twice unless the court declares it a nullity based on the fact that some people were not there and order a fresh one.”

Layonu maintained that there must be a basis for a fresh proclamation, adding that such could not be done by anyone’s directive, noting, “In matters like this, it is for the judiciary to hasten up and decide it as quickly as possible.”

Also, a professor of Comparative Constitutional Law at the University of Benin, Benin City, Edoba Omoregie, said he believes the provisions of section 11 (4) and (5) of the 1999 Constitution could only best be interpreted in the following context, legally:

“By looking at the entire section 11, and its entire five subsections. Section 11 deals with public safety and public order, and essential supplies to maintain and secure normalcy. Therefore, section 11 (4) and (5) only relates to when law and order have broken down in a state, which situation prevents the House of Assembly from meeting and engaging in legislative business. Is this the situation in Edo State today? The reports seem not to suggest this as the case. On the contrary, the House of Assembly of the state has been sitting and engaging in legislative business.

“Section 11(4) and (5) has no link with the issue of the propriety of the inauguration of a state assembly. The two subsections presuppose that there’s an existing assembly that has been prevented from functioning due to a breakdown of law and order in the state, not just in the assembly alone (section 11 (4)).

“Looking beyond the foregoing, but closely at section 11 (2), it will be immediately obvious that even a state House of Assembly that can hold legislative business actually shares unabridged concurrent powers with the National Assembly in “maintenance and securing public safety and public order…”

According to him, from the language of subsection 11(2), it is perhaps the only portion of the Constitution where the state assembly is not subordinate even in concurrent powers to the National Assembly. Therefore, to maintain public order and public safety for the purpose of meeting and conducting legislative business, the state assembly, he said could make necessary provisions for the maintenance and security of public order within its parliamentary prescient in order to hold meetings and conduct legislative business.

The law scholar explained that he was unable to see where the National Assembly derived powers to issue directives to the Edo State governor or to seek to take over the affairs of the state assembly.

According to him, “In any event, if the National Assembly is threatening to take over the state assembly, it presupposes that there’s an existing assembly which it wishes to takeover. As I said, from what we gather in the media, the Edo State House of Assembly has been sitting peacefully.”

He advises that since the matter is before the courts, it should be allowed to resolve the issues one way or the other, rather than any directive being issued by the National Assembly.

His words: “It is curious that the National Assembly is of the impression that it can issue a directive to a state governor. This is a novel action, which is avoidable. A state governor is under the supervisory authority of the House of Assembly (for purposes of oversight), and definitely, the courts when the exercise of executive power is being judicially reviewed. Aside from these instances, no other public or private institution can direct the governor of a state to act one way or the other.

“I think the National Assembly may not have been advised on the historical root of the power conferred on it in section 11(4) and (5) of the 1999 Constitution. It dates back to the First Republic when there was a violent scuffle on the floor of the Western Regional Assembly between feuding parliamentarians – a faction supporting Chief Obafemi Awolowo and the other supporting Chief Ladoke Akintola. It was a proxy political conflict, which was brought to the floor of the regional assembly.

“The response of the Federal Government to the scuffle was to declare emergency rule over the entire region; removal of the premier and appointment of Dr. Moses Majekidunmi as Sole Administrator. These actions were later deprecated as ultra vires the powers of the prime minister under the 1960 Constitution.”

Omoregie pointed out that constitutional drafters were careful to plug the loophole in the 1960 Constitution, which enabled the prime minister to take those steps, adding, “Thus, in drafting the 1979 Constitution and now the 1999 Constitution, care was taken to insert restrictions on the extent the Federal Government can go in interfering with the functioning of state governments.

“That’s why the proviso to section 11(4), prohibits the removal of the state governor whenever there’s a breakdown of law and order in the state preventing the state assembly from functioning, and necessitating federal intervention. That’s also the reason why section 11(5) limits the prevailing situation necessitating federal intervention only to when a state assembly is unable to hold a meeting and transact (legislative) business.”

In his view, Kano-based legal practitioner, Abubakar Sani, said even though the constitution is supposed to be interpreted liberally, it is obvious that not even the most liberal construction of the whole constitution justifies the attempted brigandage and overreach being contemplated by the Senate in relation to the goings-on in the Edo State House of Assembly.

He said: “Section 11(5) of the Constitution has said it all. It specifies in clear language the circumstances, which cannot be construed as the inability of a House of Assembly House to “perform its functions”. Can the assembly be honestly said to be in such a situation? That is the question.

“I submit that it is a misuse of language and gross abuse of its constitutional powers for the Senate to construe the situation in Edo State in that way. It violates one of the hallowed principles of constitutional interpretation espoused by the Supreme Court in ATT-GEN. OF BENDEL STATE VS ATT-GEN OF THE FED. (1982), per Obaseki, JSC, to wit, that a constitutional power should not be used to achieve an unconstitutional result.

“What the Senate is trying to do is simply to give a dog a bad name in order to hang it. I suspect foul play in the sense that the Senate might be merely doing the bidding of the chairman of the majority party – you know who that is.”

Similarly, Lagos lawyer, Stephen Azubuike, argued that the constitution indeed envisaged that certain circumstances might arise where the National Assembly might step in to make law(s) for a particular state, citing section 11(4) of the constitution.

“It must be strictly mentioned that the constitution does not encourage any takeover or undue interference in the affairs of a state House of Assembly by the National Assembly. Under Section 4 of the 1999 Constitution (as amended), legislative powers of the Federal Republic of Nigeria is vested in the National Assembly while legislative powers of the States of the Federation are vested in the Houses of Assembly of states. This underscores the whole idea of federalism.

“Now, in stepping in to make laws, the constitution is looking at ensuring stability in the state as the law envisaged is for the peace, order and good government of that particular state with respect to matters within the legislative competence of that state. The situation must be such that, in the discretion of the National Assembly, it is necessary or expedient until such time as the House of Assembly is able to resume its functions.”

According to Azubuike, the emphasis is on the inability of a state House of Assembly to perform its lawmaking functions. In other words, if the state House of Assembly is still able to perform its lawmaking functions, he noted, it is immaterial that the house is facing some internal challenges.

His words: “The National Assembly cannot takeover lawmaking functions of a state House for the purpose of playing a judge over an internal dispute in the House of Assembly. The power given to the National Assembly is to enable it to make a law where there is an urgent situation in the state. There is nothing in Edo State that currently suggests that the House of Assembly in that state is absolutely unable to perform its functions.

“According to the constitution, so long as the state House of Assembly can hold a meeting and transact legislative business, it cannot be said to be unable to perform its functions. The alleged constitutional breaches by Governor Obaseki in the politics of the state are matters that can be judicially resolved. It is not for the National Assembly to invoke its emergency powers under the constitution to coerce the state.”

By Joseph Onyekwere

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