The Edo State House of Assembly has been enmeshed in a crisis reminiscent of a lybarinth .The discussion begins for me whether or not as a democratic ,you will support an inauguration of the minority , with the exclusion of the majority in the deep of the night , after which you unleash an atmosphere of terror and then turn around to state that those who ran for their safety and security has absconded .The discussion that also permeates the issue , is whether indeed there is a properly constituted and inaugurated House of Assembly in Edo State , in view of the fact that the current membership of the Edo State House of Assembly does not conform to the minimal constitutional threshold of not less than 24 Members and not more than 40 members , for which no derogation or proviso whatsoever is provided for , by the same Constitution and the decided authorities on the matter vis a vis the positive deposition on oath of the leadership of the House that the seats of those Members Elect of the House , not inaugurated have not been declared vacant .
The Following are the factual and legal matrix on the matter :
1. The suit on whether or not the House was properly inaugurated was pending at the Edo State High Court ,Benin City ,as at December, 2019,when the then Speaker purported to have declared some seats vacant , without allowing the Court to determine the legality or otherwise of the purported inauguration done with minority of the members at the thick of the night outside parliamentary hours ,which is an illegality ab initio.See Danladi v. Taraba State House of Assembly (2014),11,SCNJ,134, where the Supreme Court stated per Olubode Rhodes-Viviour (JSC,as he then was ),that a House of Assembly is not a secret cult,where you hold proceedings at nocturnal hours of the day and that Proceedings of a House of Assembly must be held in the hallowed chambers of the House and nowhere else ,at parliamentary hours (10am to 4pm) , in public ,to allow for public participation and public scrutiny.It is trite Law that you can not pick and choose which procedure suits your aim,if you want to insist on due process ,insist on due process all the way .
2. When in December, 2019, the then speaker purported to have declared those seats vacant, a suit was filed at the Federal High Court,
Abuja: FHC/ABJ/CS/1582/19 filed by D.D. Dodo SAN on behalf of the 14 Law Makers, joining INEC as a party to the suit since the Edo State House of Assembly, albeit illegally, directed INEC to conduct fresh Elections to fill the seats of the members not inaugurated .
3. A motion exparte for injunction filed by the Members not inaugurated ,was moved midway and the court directed the Defendants to come and show cause, INEC came to court to say orally , it would await the outcome of the cases. The court directed INEC to put those facts in an affidavit form which was done and duly filed.
4. Upon becoming aware of INEC’s position , the other Defendants filed their affidavit to show cause and brought the votes and proceedings for the day they purportedly declared the seats vacant , to say that they declared only two seats vacant, and that they did not declare the seats of those not sworn in vacant.Even at that , those two Seats can not be declared vacant,because ,from June,2019 to December,2019 ,is not up to One Legislative Year ,for the purpose of determining the number of days the said Members have been absent from Meetings of the House and the declaration of the Seat of a Member of a House of Assembly vacant is a process that requires ,giving the Member Notice in Writing in advance of the intention of the House to declare his seat vacant ,allowing the Member to defend himself,a physical examination of the Attendance Register of the House with the Member and his legal representative (if any ) ,Setting up of a Committee to ascertain the allegations against the Member ,the Committee reporting back to the House its findings ,a consideration of the Findings of the House by a Committee of the whole and votes being taken thereafter on the issue and an issuance of the Hansard of the House on the issue is what completes the Process.This is in keeping with the Constitutional threshold of fair hearing ,which ensures due process and not leaving the fate of an elected representative of the people to the vagaries of Political expediency and intrigues.The Law is always a guide. On the above proposition of law ,See Usman v. Kaduna State House of Assembly.(2007) 11 NWLR,(Part 1044) 158,C.A
5. On the strength that those seats were not declared vacant, PDP and its candidates who contested against those members elect, who have not been inaugurated and lost in the general election , initiated a suit at the Federal High Court,Benin City asking that the court should declare them winners as the members elect had refused to subscribe to their oaths of office.
6. PDP did not join the members who took oath but acted on the false assumption that the seats of those members were already vacant,which assumption is neutralized by the analysis on the issue above .The Members came out to repudiate their inauguration ,one of them stating on Oath ,that he was kidnapped .
7. If the constitutionality of the inauguration of the House is being challenged, can you declare any seat vacant?This argument is apposite , following the time honoured principal of lis pendis-parties are to stay action in a Matter pending the Hearing and Determination of the Matter .See Chief Emeka Odumegwu Ojukwu v Military Governor of Lagos State (1989) 2 NWLR (Part 10)
8. The suit determined by the Federal High Court,Port Harcourt in Suit No. FHC/PH/CS/159/2019: Hon Yekini Idiaye & Anor V. Clerk of The NASS & 5 Ors, only validated the proclamation of the House by the Governor , it did not touch on the inauguration of the House as claimed. It prevented the Governor from issuing another proclamation but never validated the purported inauguration done at night.
9.Can you declare an unoccupied seat vacant ?For a seat to be declared vacant ,it must have been occupied in the first place .Section 91 of the Constitution says a House of Assembly of a State shall consist of of not less than 24 Members and not more than 40 Members .
Section 91 of the Constitution of the Federal Republic of Nigeria ,1999 (As Amended ),provides this :
*Subject to the provisions of this Constitution, 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*
When ever the word “shall”,,is used ,it indicates compulsion and a mandatory obligation that can not in any way be derogated from.Section 91 (1) of the Constitution of the Federal Republic of Nigeria,1999 (As Amended), provides thus :
“The Quorum of a House of Assembly,shall be one-thirds of all Members of the House “.A Quorum is only activated upon inauguration.You can not have a quorum of a House not inaugurated and the Clerk of the House stated on record that no notice of inauguration in writing was given to the elected Members not inaugurated.There three types of Notices in Law,viz:
Actual Notice ,constructive notice and implied notice
None of the three notices were done and the House of Assembly was inaugurated as the Bible says Like the coming of a thief in the night I begin to doubt any person’s democratic credentials ,if he or she supported the impunity that was done on the 17th of June ,2019,just after 9pm as stated in a deposition on Oath by the then Edo State Commissioner of Police ,Now DIG Dan Mallam Mohammed and also the Intelligence Report on the issue by the Secret Service.
9.In the Section relating to the declaration of the Seats Vacant ,the Constitution talks about Members and not Members Elect .
Section 109(1)(f) of the Constitution of the Federal Republic of Nigeria ,1999 (As Amended,) provides thus :
…A Member of a House of Assembly shall vacate his seat in the House, if without just cause, he is absent from Meetings of the House of Assembly for a period amounting in the aggregate to more than one third of the total number of days during which the House meets in any one year.
There is no ambiguity whatsoever..It is trite Law that the express mention of a subject is the exclusion of another and no matter how beautiful your argument is ,your argument can never take the place of the Law .The Law is clear and unambiguous on this score .Members Elect are not Members.It is the inauguration of a Member Elect that makes him a Member.How can a Member that has not been inaugurated be taken as a Member for the purpose of declaring his seat vacant .
The Federal High Court ,Port Harcourt Judgment is of the Authority that Proclamation can not be done twice .Once the House is proclaimed, flowing from the theory of separation of Powers, which properly delimits the Executive ,Legislative and Judicial Powers of the State as enshrined in Sections 4,5 and 6 of the Constitution of the Federal Republic of Nigeria,1999, (As Amended), by the 4th alteration , activities of the House are within the province of the Internal Affairs of the House that borders on Political Question,that is not amenable to the control of the executive ,but the Moderation of the Courts vide Judicial Review .See Balonwu v. Governor of Anambra State (2009) 18 NWLR (PT. 1172) 13,SC.
Nigeria is a Society governed by Laws and not on the whims and caprices of one man.Plurality of Opinion is the hall mark of a Constitutional Democracy .Conflict itself is a part of Democracy.The Majority will have their way ,while the Minority will have their say.But to shut out the majority and by extension the people from by represented smacks of a partial suspension of the House and hijacking of the mandate of the people .A situation ,where a small proportion of the Minority seizes the Sovereignty of the people ,is akin to the Hobesean State of Nature ,where life was nasty ,solitary and short .
14 Constituencies have remained unrepresented for two years.Democracy is on trial in this matter and where you stand actually indicates whether you are a Democrat or not.
A State thrives on the balance of power and the vagaries of alternative choices .Where you have a State with a diminished House of Assembly,no commissioners and advisers ,an acting Chief Judge ,what you have in that State is not a Governor , but an Emperor.You might be the Governor ,but you are not God .This is a dangerous precedent being set in Edo State and I tell you ,today you might be a beneficiary today , tomorrow you will be a victim!
History does not repeat itself ,at best it rhymes
-Mark Twain,America Writer .
If the Constitution mandates that there must be at least 180 sitting days in a year (which is one calendar year). It is impossible to have declared those seats vacant early in December 2019 because from 17/6/2019 to early December, 2019, you do not even have 180 days!
Let us build Institutions that will outlive our stay in office ,so that those institutions ,will build us, when we leave office .
My name is Douglas Ogbankwa and I am a Democrat!
ABOUT THE AUTHOR:
Douglas Ogbankwa Esq., @ email@example.com ,is a Benin Based Lawyer ,who is the Convener of the Vanguard for the Independence of the Judiciary and the President of the Benin Writers’ Society.