Legislative suspensions: Why practice may be unconstitutional

The Nigerian legislative landscape is facing intense debates over the constitutionality of its powers to suspend members and how such suspension impacts the tenure of members as well as their constituents. This debate raises questions about the balance of power, legislative rules and democratic governance, reports AMEH OCHOJILA.

The Nigerian legislative landscape has been rife with debates regarding the extent of its authority to suspend its members. The debate intensified following the recent suspension of Senator Abdul Ningi on March 12, 2024, by the Senate. He was suspended for alleging that the 2024 budget was padded by N3.7 trillion. Ningi, a member of the Peoples Democratic Party (PDP) representing the Bauchi Central Senatorial District, was suspended for three months after a contentious and prolonged session in the Senate.

The core of this controversy lies in whether the legislative houses possess the constitutional mandate to suspend its members and, by extension, influence the duration of their tenure. This issue raises pivotal questions about the balance of power within the Nigerian government, the interpretation of legislative rules, and the potential implications for democratic governance.

Those who argue that Parliament has the power to suspend a member said that the National Assembly operates under in-house rules, such as the Senate’s Standing Orders or the House of Representatives Rules. They emphasise that every member swore to abide by these guidelines during their inaugurations.

They asserted that any member who misconducts himself is bound to be disciplined accordingly. Such disciplinary measures, they explained, are at the discretion of the other lawmakers, based on the recommendations of the Ethics and Privileges Committee. This authority is granted by Sections 60 and 101 of the 1999 Constitution, which empowers the National Assembly to regulate its proceedings and procedures.

Those opposed to such suspension argued that Section 21 of the Legislative Houses (Powers and Privileges) Act only gives a legislative house power to suspend a member briefly, where such a member has been convicted by a court of law, for the offence of being in contempt of the authority of the house.

In the Senate alone from 1990 till date, about seven senators have been suspended. They include, Femi Okurounmu (Ogun Central) suspended in 1999 for alleging that senators were planning to impeach Obasanjo; Joseph Waku (PDP, Benue North West, 1999-2003) was suspended for one week in 2000 for allegedly suggesting a military coup over President Obasanjo’s government; Arthur Nzeribe (PDP, Imo Orlu, 1999-2003) was indefinitely suspended in 2002 for alleged N22 million fraud and plotting to impeach Senate President Anyim Pius Anyịm and Ali Ndume (APC, Borno South), suspended for six months during the 8th National Assembly for alleging that Senate President, Bukola Saraki imported a bulletproof Range Rover with fake documents.

Others were Ovie Omo-Agege (APC, Delta Central), who was suspended for 90 days after opposing the Senate’s electoral act amendment, which he claimed was a plot against President Muhammadu Buhari; Isah Mohammed (Niger Central), suspended in October 2004 for slapping Senator Iyabo Anisulowo and the latest, Ningi.

In each instance, the penalties varied. They ranged from prohibiting the fellow from attending plenary and committee meetings to blocking salary, allowances, and entitlements as well as denying the person access to his or her office and the National Assembly premises.

Similarly, at the House of Representatives, some members have been suspended for various reasons, and the same applies to the various Houses of Assembly across the states.

For instance, in the House of Representatives, some members were suspended but the decisions were nullified by the court. The court held that the suspensions were unlawful, illegal, null and void.

It maintained that the lawmakers were not granted a fair hearing before they were suspended. This, the court said, breached their constitutional right to a fair hearing.

While conceding that the National Assembly is empowered to regulate itself by the provision of Section 60 of the 1999 Constitution as well as Section 24 of the Legislative House’s Powers and Privileges, Justice Ishaq Bello declared that the maximum period for the suspension of any member of the legislature as provided in the statute is for a period not more than 14 days.

The court frowned at the imposition of an indefinite suspension on the plaintiffs and described the action of the House of Representatives as an arbitrary show of power and the tyranny of the majority.

Regardless of the powers of the various Parliaments, some argued that members are sent to the various parliaments to represent the people. They enable society to develop and prosper through the quality of the laws they make. Similarly, legislators are educators and communicators, who enlighten their constituents about government policies and communicate the progress of those programmes. The constituents are deprived of representation during the period of suspension.

Meanwhile, Chapter IV of the 1999 Constitution, specifically Section 39(1) grants every person freedom of expression, including freedom to hold opinions and to receive and impart ideas and information, without interference. This appears to conflict with Section 21 (2) of the Legislative Houses (Power and Privileges), Act 2018, which states that ‘where any member is guilty of contempt of a Legislative House, the House, may by resolution, reprimand such member or suspend him from the service of the House for such period as it may determine.”

Senior Advocate of Nigeria, Mr. Femi Falana, declared that no legislative house has the authority to suspend a member, even for a single day. He made this remark in response to the then Senate’s suspension of Senator Ali Ndume for allegedly bringing the House into disrepute and the subsequent investigation and summoning of some of its members.

The Senate spokesman acknowledged that the 1999 Constitution does not explicitly grant the Senate the power to suspend a member. However, he argued that the Senate has the authority to do so based on its internal rules.

In response, Mr. Falana said: “The Senate labours under the very erroneous impression that it can do anything, whether allowed by law or not, particularly when it purports to exercise its oversight functions.

He said: “Allegations of crime, certificate forgery, and underpayment of customs duties are criminal offences that can only be investigated by appropriate authorities such as the Police.”

He emphasised that “Section 88, which the Senate often relies on, begins with the phrase ‘subject to the provisions of this Constitution,’ meaning that the powers of the Police, the Auditor General of the Federation, the Attorney General of the Federation, and the President take precedence over the Senate’s powers to carry out investigations.”

Mr. Falana said neither the Senate nor the House of Representatives can investigate allegations of crime. That, he said, is within the constitutional jurisdiction of the Police. Regarding the suspension of members, the court has made definitive judicial pronouncements. “It held that no legislative house in Nigeria can suspend a member for even a single day, and we have a plethora of authorities on this matter,” he declared.

Interestingly, a Federal High Court in Abuja nullified the 90-day suspension imposed on Senator Ali Ndume by the Senate. Justice Babatunde Quadri ordered the Senate and its then President, Dr Bukola Saraki, to pay the Borno South Senatorial District representative all outstanding salaries and allowances.

Another senior advocate of Nigeria Douglas Pepe argued that a legislative house has no powers under the 1999 Constitution to suspend its members from legislative business, or to deny a member access to the powers and privileges of his/her office. The House Rules, he said, are subservient to the Constitution and cannot vest any power on a legislative house, which violates the Constitution.

He held further that a legislative house can neither elongate nor shorten the tenure of a duly elected member. According to him, only a competent court of law or Tribunal can remove or suspend a legislator from office. He added it was unlawful for the Senate or representative; in neither House of Assembly can suspend a member.

According to him, Section 21 of the Legislative Houses (Powers and Privileges) Act gives a legislative house power to suspend a member briefly, but only where such a member has been convicted by a court of law, for the offence of being in contempt of the authority of the house. This suspension, he said, may not last beyond the next sitting of the house. In other words, a member cannot be suspended from plenary, Pepe held.

Another lawyer, Joseph Umme, disagreed with the senior advocate. He argued that the constitution has given the parliament powers to regulate its conduct. He, therefore, asserted that the House could suspend members according to their rules and regulations.