Time for Justice for G14 in Edo State House of Assembly not inaugurated

By Douglas Ogbankwa, Esq.@douglasogbankwa@gmsil.com

Nigerian is a Country guided by Law. Unfortunately, some brigands, which transcend all tiers of Government capture the Law and do what they like and not what is right.

I was in Court for this matter when a Lawyer for those who inaugurated the House of Assembly at night boasted in 2019 that when their tenure expired by June 2023, no witness would have been featured in their matter in Court.

That is how they have reduced the critical Institutions of the State. Another anathema is the falsehood that the Members of the House refused to submit themselves for Inauguration, whereas they were chased out of the State by armed thugs supported by State Elements.

For those who do not know the true Story, scared that he may not be able to manipulate the 24 Member House of Assembly, the then Edo State Government planned a state-sponsored coup against a democratic institution. by inaugurating the Edo State House of Assembly at about 9:30 pm in June, 3019 with 8 Members, one of they was picked up where he went buy Suya at Ihama, GRA, Benin City and he was inaugurated with knickers.

That Picture is a signpost of shame that should be laminated and tagged “How not to be inaugurated as a Member of a House of Assembly,” and the same should be put in every legislative house in Nigeria in place to be called “Nigeria’s Legislative Hall of Shame. ”

We need justice for the 14 Members of the Edo State House of Assembly not inaugurated. To start with, the Clerk of the House who did that shenanigan at night should be removed immediately, investigated, dismissed, and prosecuted. The reason we continue to do institutional evil in Nigeria is that there are no consequences for our actions. Consequences deter impunity.

The Constitution should also be amended to remove the proclamation of the House of Assembly from the Governors, or it should be stipulated that the House stands proclaimed 7 days after the swearing-in of the President of Nigeria, whether or not a Governor issues a written proclamation.

The Worst part was when they declared the Seats of Members of the House of Assembly vacant when they also claimed that the seat was unoccupied. Can you declare an unoccupied seat vacant ?.. To understand the matter more kindly read the following factual and legal position of the matter :

The suit at the Edo State High Court was already pending in December 2019, when the then House Leadership purported to declare some seats vacant in the Edo State House of Assembly (EDSHA), without allowing the Court to determine the legality or otherwise of the purported inauguration done with the 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, Per Hon Justice Olabode Rhodes Viviour (JSC):

That the House of Assembly of a State is not a secret cult, when you hold meetings at nocturnal hours of the day, outside public scrutiny and public access. The House of Assembly is a Public Institution that must hold its Sittings within Parliamentary Hours (10 am to 4 pm)“

It is a 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.

When, in December 2019, the then Speaker purported to declare those seats vacant, the suit in the Federal High Court, Abuja, was filed, joining Independent National Electoral Commission (INEC) as a party to the suit since the EDSHA, albeit illegally, directed INEC to conduct an Election to fill the vacant seats.

A motion exparte for an injunction was moved midway, and the court directed the Defendants to come and show cause; INEC came to court orally to say it would await the outcome of the cases. The court directed INEC to put those facts in an affidavit form, which was done, filed and served on Parties.

Upon becoming aware of INEC’s position, the other Defendants filed their affidavit to show cause and brought the votes and proceedings to say that they declared only two seats vacant and that they did not declare the seats of those not sworn in vacant, this is a filed Affidavit in Court.

Even at that, those two Seats can not be declared vacant, because June 2019 to December 2019, is not up to One Legislative Year, to determine 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 with the member, 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 does not leave 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
On the strength that those seats were not declared vacant, PDP and its candidates who 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 denied access to the Chambers had refused to subscribe to their oaths of office, which has been done anyways.

People’s Democratic Party (PDP) did not join the members who took the oath but acted on the assumption that those seats were already vacant, which is not true.

If the constitutionality of the inauguration of the House is being challenged, can you declare any seat vacant given the Law put in place by the Supreme Court in the case of Ojukwu v. Military Governor of Lagos State?

The suit at the Federal High Court, Port Harcourt, 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.

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 not less than 24 Members and not more than 40 Members. Any House of Assembly that consists of less than 24 Members is an illegality ab initio.

The Constitution states clearly, “Shall.” When the Word “Shall is used in Law, it does not allow any derogation from the stipulation of the Law. You must conform, or else your actions become academic. There are a plethora of Authorities on this score.

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 that 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.

Whenever 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-third of all Members of the House.”

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 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 who has not been inaugurated be taken as a Member to declare 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), 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

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.

A State thrives on the balance of power and the vagaries of choices.

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!!!!

“Peace is not just the absence of war, but the presence of Justice ”-Martin Luther King 1.

And “In Monarchy, the king is the Law; in a Democratic the Law is the King. “ -Anonymous

How can a House of Assembly that does not follow the Law, make Laws?
A painful paradox that may end up as a catharsis.

Whatever has a beginning will have an end!

Ogbankwa Esq. @ douglasogbankwa@gmail.com is a Lawyer, Writer, and Policy Analyst who is the Convener of the Security Situation Room, the Transparent Bar Initiative, and the Benin Writers’ Society.