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Godwin Tsa, Abuja, Tony Osauzo, Benin and Lukman Olabiyi, Lagos
Legal experts have expressed divergent opinions on the decisions of the two chambers of the National Assembly directing Edo State governor, Mr. Godwin Obaseki, to issue a fresh proclamation letter for the inauguration of the state House of Assembly.
The Senate had directed Governor Godwin Obaseki to comply with another resolution mandating him to issue a fresh proclamation for the ‘proper’ inauguration of the house within one week.
It claimed 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.
But a lawyer, Shola Adeyemi, said the Senate has no such powers to interfere in the matter unless and until there is a complete breakdown of law and order necessitating the president to declare an emergency in the state.
“If I were the governor, I will continue governing and I will 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.
A human rights activist, Stanley Maxwell, contended that if there was such an order on the governor, then the Senate had acted ultra vires on their powers under Section 11 (4) and (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 action of the Senate is illegal and unconstitutional in my view.”
Another lawyer, Malachy Ugwummadu, agreed that if there is such an order on the governor, then the Senate has acted ultra vires on 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,” he said.
In his contributions, a professor of Comparative Constitutional Law at the University of Benin, Edoba Omoregie, said he believed that the provisions of section 11 (4) and (5) of the 1999 Constitution could only be interpreted in the following context, legally:
“By looking at the entire Section 11 and its entire five subsections. Section 11 deals with public safety and public order, and essential supplies to maintain and secure normalcy. Therefore, Section 11 (4) and (5) only relates to when law and order has broken down in a state, and which situation prevents the House of Assembly from meeting and engaging in legislative business. Is this the situation in Edo State today? The report seems not to suggest this as the case. On the contrary, the House of Assembly of the state has been sitting and engaging in legislative business.
“Section 11(4) and (5) has no link with the issue of the propriety of the inauguration of a state assembly. The two subsections presuppose that there’s an existing assembly that has been prevented from functioning due to a breakdown of law and order in the state, not just in the assembly alone (section 11 (4)).
But Mr. Henry Idahagbon, immediate past Attorney General and Commissioner for Justice in Edo State, advised the governor to resolve the issue by complying with the decision of the National Assembly and inaugurate the Assembly. He urged Obaseki to thereafter reach out to party leaders so that all the issues would be resolved.
“We are not fighting to dismember the party. We do not have another governor. Once the issues are resolved, the party will be prepared to face election next year. This is my opinion, I hope he takes it,” he said.
One of the yet to be inaugurated lawmakers, Mr. Washington Osifo, said the decision of the National Assembly had vindicated the position of his colleagues that are yet to be sworn in.
“My advice is that, as a product of the constitution, the Edo State Government should respect the constitution. If they say the action of the National Assembly is unconstitutional, do they have the constitutional backing to inaugurate the assembly at night? So, let them listen to the voice of the law and do what the law has recommended,” he said.
But the Speaker of the State House of Assembly, Frank Okiye, is not comfortable with the decision of the National Assembly. In his view, the Edo State House of Assembly has no problem and is performing its functions.
“I still have problem with the process adopted by the National Assembly. If the National Assembly is interested in taking over the functions of the House of Assembly, it is unfortunate.
“They are not an alternative to the Assembly. A court of competent jurisdiction has restrained them. The constitution did not say that every elected member should participate in the election of a Speaker and other principal officers. Once the proclamation has been issued, the Assembly has taken off, whether members are there or not.
“Let the 12 members-elect who are still outside come and be inaugurated to do the job for which they were elected,” Okiye said, even as he warned that time was running out for them.
A Benin-based lawyer, Jefferson Woghiren also faulted the decision of the National Assembly.
“It’s now obvious that the principal officers of the National Assembly have other motives than the enthronement of peace, good governance and the sustenance of democracy and the rules of law in Edo State.
“The reliance on Section 11(4) of the constitution as a pretext for recklessness is most unfortunate. A cursory reading of the section indicates an intervention power to deal with public safety and order where the House is unable to sit. The prevailing situation in Edo State is in contradiction to the conditions precedent to the invocation of that section of the constitution. Edo State is peaceful with a functioning House,” he said.
Lawyer and rights activist, Charles Okungbuwa, said the state House of Assembly has it own independence and is the second arm of government in the state, which could not be pushed over or stampeded by any institution.
“The problem we have in this country is that we have laws but we don’t follow them. There is a law guiding every process. The Senate has not followed the law, and therefore their directive cannot stand,” Okungbowa said.
But another lawyer, Samson Osagie, insisted that the directive of the Senate was in line with the constitution. He said with the current situation, it was clear that Edo State does not have a House of Assembly and the Senate being the apex legislative arms of government, has the power to see to it.
Osagie said the Senate is empowered by the constitution to extend their legislative function to the states if the need arise, insisting that the current situation needs the intervention of the National Assembly.
