Senate erred on takeover of Edo assembly, say lawyers, others
Adopting a report presented by its ad hoc committee, which investigated the development in the state assembly, the Senate claimed that the process leading to the June 17, 2019 inauguration was improper and a breach of global parliamentary practices.
It also mandated the governor to properly inform all the 24 members of the assembly through adverts in print and electronic media.
“In the event that a new proclamation is not issued as stated above within a period of one week, the National Assembly is at liberty to invoke Section 11(4) of the Constitution of the Federal Republic of Nigeria as amended,” the Senate declared.
But according to renowned constitutional lawyer James Ezike, the lawmakers have no right to interfere in the matter unless there is a complete breakdown of law and order necessitating the president to declare an emergency in the state.
To him, the order indicates Nigeria is yet to embrace true democracy, staggering instead under a military dictatorship where anything happens.
“If I were the governor, I will continue governing and go to court until everything goes down. I don’t see it as a matter of emergency; it is a matter of the majority of the house. Remember what happened between Saraki and Buhari. If they had the required number, as stipulated by the rule, that is the end of it. But if they did not, then they should do it again,” he said.
The National President, Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, also expressed doubts if the Senate has any such supervisory powers over the governor or the assembly.
To the prominent rights lawyer, if there is such an order on the governor, then the Senate has acted ultra vires their powers under Section 11(4)&(5) of the 1999 Constitution.
“This particular section of the constitution, which vests powers in the National Assembly as a whole to take over the affairs of a state House of Assembly, can only be activated in instances when the assembly of a state is unable to meet or sit.
“Clearly, they cannot order the governor to re-proclaim the house, just as they can’t exercise the powers of the state House of Assembly to remove the governor. In the event, the unilateral action of the Senate beside the House of Representatives is illegal and unconstitutional in my view.”
Senator Adeseye Ogunlewe, who represented Lagos East (1999-2003), said: “The Senate has no constitutional power to intervene in the affairs of an existing legislative arm of a state that is constituted constitutionally except there is a crisis. And in the situation on the ground, there is nothing like that in the Edo Assembly.
“The governor should head for the court because it is not possible under the present 1999 Constitution for him to issue another proclamation unless the court quashes the first one. Even where the Senate has oversight functions on the state assembly, it has no such constitutional right over a governor.”
On his part, Mr. Sentonji Koshoedo, who represented Badagry Federal Constituency (2003-2007), called for the matter to be referred to the judiciary for an appropriate interpretation.
Koshoedo’s view aligned with that of Mr. Wale Oshun, a former Chief Whip of the House of Representatives, who said: “It is indeed a constitutional matter, which only a lawyer can interpret.”
Some lawmakers had also urged caution, but Senate President Ahmed Lawan stood his ground, throwing out a constitutional point of order by Emmanuel Okerjev (PDP, Benue State) which had sought to advise the chamber against the resolution.
Okerjev cited Section 105 of the Constitution, saying it never mandated the governor to sponsor newspaper advertorials to publicise his proclamation.
He quoted the section: “Subject to the provision of this constitution, the person elected as a governor of a state shall have the power to issue a proclamation for the holding of the first session of the state House of Assembly immediately he is being sworn in.”
He said: “There is nothing in this constitution that indicates that the proclamation should be published in the media. So, the fact that it has not been done does not infringe the constitution.”
Okerjev, therefore, warned: “As a lawmaker and a lawyer, I am always worried about the implementation of whatever comes out of any legislative house. If you allow these orders, there would be chaos.”
Former Imo State Governor Rochas Okorocha (APC, Imo State) also expressed his reservation, saying: “I have listened to the report so far submitted and I wonder if the National Assembly is not overreaching itself and interfering in a matter it shouldn’t interfere in.
“From what I have heard here, it looks like we are eager to take over the Edo State House of Assembly as it is. Looking at the report of both the party, the clerk and all that you could see, it looks like a family affair of the APC. The leadership of the APC should have found a way to resolve it, and not us stepping in the matter. I think we do not have jurisdiction to do so.”
He continued: “We have had cases here or even the Federal House where the mace was taken away, and no other National Assembly came from anywhere to take over our duty. This matter should not go within the Senate. But the APC caucus here should come together to resolve it like a family matter rather than making it a National Assembly matter.”
But ordering that the resolution be sent immediately, Lawan submitted: “As far as this issue is concerned, this has been laid to rest. The Senate has taken a decision and it is in conformity with that of the House two weeks ago. I believe that our colleague, Jev, can bring this point of order on an appropriate day if it would do any good.
“The National Assembly must insist the right thing is done even by state governors. This is the home of democracy; it is the highest legislative chamber. The National Assembly queries decisions by the president. I don’t see the reason why when there is an error or misjudgment or something undemocratic the National Assembly should stay away from it.”
The Edo State government meanwhile described the resolution as unconstitutional and a flagrant disregard of the principle of separation of powers. A statement by Secretary to the State Government Osarodion Ogie reads: “This illegality will not stand. I advise all-powerful persons not to be allowed to set our state ablaze merely to satisfy their thirst for power and control.
“It is unfortunate that the distinguished Senate would act in flagrant breach of various court orders and purport to come to factual and legal conclusions concerning a matter in which the parties are already before the courts and therefore subjudice.
“We are also concerned that the members of the Senate appear to have very scant regard for the principle of separation of powers as enshrined in our constitution which is manifested by their taking over the functions of the judiciary in dispute resolution and giving directives to a state governor who is certainly not subject to the supervision of the National Assembly.”
Also, the Speaker of the Edo House of Assembly, Francis Okiye, yesterday reaffirmed that there was no crisis in the house as insinuated. Okiye who made this known during plenary in Benin said the house was carrying out its constitutional business of legislating for the good governance of the people.
“Granted that upon proclamation of the house by the Governor Godwin Obaseki and invitation by the clerk, nine members were available to be inaugurated as provided for by section 105(3).
“The nine members took the oath of office. Other members did not give reasons for not being available for the inauguration. To avoid a constitutional crisis, the house had to be inaugurated on June 17, 2019 as stated in the proclamation letter.
“The quorum needed by the house to carry out its legislative business was met and the clerk of the house inaugurated the members who were present. Anyone in doubt of the constitutionality is free to seek redress in court instead of manipulating the National Assembly to exercising the powers they do not possess,” Okiyie said.
According to him, the only condition under which NASS can take over the functions of a state house of assembly is clearly and unambiguously stated in sections 11(4) and 11(5) of the constitution.
“These conditions do not apply here in Edo assembly as the house has been performing legislative business in a peaceful atmosphere with me presiding as the speaker,” he added.
The speaker advised members of NASS to face their duties and leave Edo assembly alone. He said since inauguration, three other members-elect had completed documentation and had subsequently been inaugurated.
“Since the inauguration, the house has adopted the business calendar, constituted statutory committees, cleared commissioners and passed several resolutions.
“I advised my colleagues who have refused to be inaugurated to present themselves for documentation and inauguration in order for them to give quality representation to the people who elected them,” Okiye said.