Divided House: Discordant tunes over validity of minority decisions

Factionalising parliaments is not new in Nigeria, but the legal effect of the resolutions passed by the party that are not able to form a quorum in its sittings has not been comprehensively tested, as such conflicts persist.
(From left to right) Composite image of Godswill Akpabio, Bola Tinubu, and Tajudeen Abbas.
(From left to right) Composite image of Godswill Akpabio, Bola Tinubu, and Tajudeen Abbas.

When there is conflict in a parliament resulting in factions, party support by the executive usually proceeds with legislative duties and its decisions accepted by the executive. This also happens when many lawmakers habitually absent themselves from sittings, in which case, the resolutions passed by the minority are binding on them. JOSEPH ONYEKWERE, in this report, interrogates the effect of the resolutions of a parliament without a quorum.

Factionalising parliaments is not new in Nigeria, but the legal effect of the resolutions passed by the party that are not able to form a quorum in its sittings has not been comprehensively tested, as such conflicts persist. The latest in this scenario is the fracas at the River State House of Assembly that split the lawmakers into two – 27 in support of the former governor of the state, Nyesom Wike, and five supporting the incumbent governor, Sim Fubara, in a 32-member House.
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Before this development, the Edo State House of Assembly was in 2020 factionalised with nine lawmakers that were loyal to the state governor, Godwin Obaseki holding the parliament, while 14 that supported former governor of the state, Adams Oshiomhole “begged” to be inaugurated endlessly.

In effect, the nine, who are in the minority, continued to sit and make laws for the entire state.

Interrogating this process, Prof. Edoba Omoregie (SAN) argued that a quorum is required for the plenary sitting of the legislature. If that quorum is not met, he insisted that whatever resolution reached by those who sat is null and void.
“It doesn’t matter what made the majority who were absent to be unavailable. Under the 1999 Constitution, what constitutes a quorum varies and depends on the matter being considered. It could be a certain percentage of all members of the legislature, or a percentage of a certain number,” he submitted.

An Abuja-based lawyer, Elias Offor thinks without the appropriate quorum, any decision or resolution reached by the minority will contravene the Constitution.
“According to Section 54 (3) of the 1999 Constitution, whether in a single or joint sitting, if a bona fide member of the National Assembly objects to the number of members present in a sitting falling below the one-third prescribed by the Constitution for a particular period of the sitting as may be contained in the Order of Proceeding, the presiding officer is bound to adjourn the sitting.
“However, it does seem like the legislative houses could go ahead with their businesses without the minimum number of members attending the proceedings if there is no objection coming from any eligible person as stated in Section 54(3),” he said.

Offor recalled that the Red Chamber under Senator Bukola Saraki had conducted plenary without the required number of members. According to him, from the phraseology of the whole subsection, the propriety of a decision taken while members fall below the legal minimum depends on an objection from the floor of the house as to whether the required number of members are attending. In the UK, quorum, he noted, is not mandatory as common debate could continue with one MP and the speaker.

Constitutional lawyer, Evans Ufeli believes that major decisions of either the National Assembly or State House of Assembly are reached by a two-thirds majority. Referring to the conflict in the Rivers State House of Assembly where 27 members of the People’s Democratic Party (PDP) defected to the All Progressives Congress (APC) and their seats were declared vacant, he argued that it was done in compliance with Section 109 (1) (g) of the 1999 Constitution.
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His words: As long as the Independent National Electoral Commission (INEC) is yet to conduct an election to fill up the shortfall of lawmakers, the few as presently constituted can take a valid decision on behalf of the state as governance cannot be put in abeyance just because fewer lawmakers are present.

“In the case under reference, the lawmakers present are all that the state has got at the time and decisions are valid.

“However, the decisions of fewer members will not be valid if other members are still valid lawmakers but had been deceived or outsmarted or made to believe nothing was going on in the house, for a few to surreptitiously take advantage of that to reach a majority decision with two-third of those present.
“In Rivers State, the decisions of the five lawmakers passing the budget, however quick it took, is valid. The rest are no longer members of the house and there is no specific time under the law within which a budget must be passed.”

River state assembly

He argued that considering the agreement reached in the meeting with President Bola Tinubu regarding the re-presentation of the Appropriation Bill, the State Assembly as an independent entity can either reject the agreement or accept it, in which case, the River State House of Assembly may have to repeal the first Appropriation Act with the incoming one.

Explaining that Parliaments are creations of law, former publicity secretary of the Nigerian Bar Association (NBA), Kunle Edun, argued that their composition and how they conduct their businesses are also dictated by statutes. According to him, the 1999 Constitution, as (altered), made sufficient provisions on the composition of a House of Assembly and how members can validly pass resolutions.

He said: “The 1999 Constitution recognises the different kinds of resolutions that a House of Assembly can pass. There are some resolutions that the Constitution requires a two-thirds majority of members of the House to pass. Some require a simple majority. These provisions are strict and failure to obtain the constitutionally required number of members to pass a resolution may nullify the resolution passed.
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“The parliament is representative of the people of a country or State. Therefore, the law requires that for any decision to be made by a parliament, the representatives of the people from the various constituencies must partake in such a decision. Few members of a parliament cannot lord it over the majority. However, there may be instances when the law may permit minority members to pass resolutions.
“This may occur where the resolutions passed are not those that require a two-thirds majority or simple majority. They are mostly inconsequential resolutions. The Supreme Court of Nigeria seemed to agree with this position when it held in the case of Diapolong v Dariye (2007) 27 WRN 1, per Tobi JSC) that, ‘It is my view that until the vacancies created by the carpet crossing members are filled by the process of by-election, the Plateau State House of Assembly can only transact such legislative duties that require the participation of less than 2/3 majority of all the members of that House, which duties definitely excludes impeachment proceedings.”

The fact that the majority of the members of a legislative House, he said, have decamped to another political party automatically leads to their seats being declared vacant except they can establish that there is a division in the national leadership of the party. This situation, he maintained, mandates INEC to conduct a by-election in which the decamped legislators may also contest if their new political party fields them. “The reason being that the Constitution wants to discourage election theft by political parties and to re-emphasize the fact that power resides with the electorate,” he pointed out.

Edun insisted that a legislative house that has only a few of its constitutionally required number of members may only be able to perform very limited legislative functions. Citing the Rivers State House of Assembly imbroglio, Edun said there is already a court order recognising the defection of the 27 legislators that decamped to APC and the remaining five PDP members who are now seen by the law by the court order as the properly constituted Rivers State House of Assembly.

“The Court recognised Speaker of the House of Assembly has already written to INEC declaring the 27 seats of the decampees vacant. That’s what the law requires. It is now incumbent on INEC to conduct a by-election for the 27 seats so that the Rivers State House of Assembly can function fully.
“It is important to state that attempts to curtail or negotiate a compromise of mandatory provisions of the Constitution is unpatriotic and should not be encouraged. The Constitution is the grund norm. All activities and conducts of government and its officials must trace their validity to the provisions of the Constitution.
“Public officials who swore an oath of allegiance to the Constitution should not betray the Constitution they swore to uphold. Doing so is an impeachable offence. The 27 members of the Rivers State House of Assembly publicly declared that they have decamped to the APC. They were not forced. No public official can change that fact, not even the Governor,” he stressed.

Citing the case of Ogbuoji v. Umahi (2022) 8 NWLR (Pt. 1832) 323, Edun said the Court of Appeal was very clear when it held that “The consequence of loss of a seat for defection from the political party which sponsored a legislative member is for by-election to be conducted and not for the vacated seat to be allocated to either the political party or the runners up at the election.”

According to him, if INEC refuses to conduct a by-election into the vacant 27 seats, then the people and electorate in Rivers State have been robbed of their votes. It will now be up to the members of the various constituencies that are affected to decide how to seek redress in respect of their stolen votes. This, he said, is because the electoral laws only recognise political parties on the ballot papers, not the individual candidates. He added that the APC cannot by any contraption or compromise take the votes of the PDP.
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