Lawyers have disagreed over the legality of budget presentation to a five member House of Assembly while expressing divergent views over the current political tension Twenty Seven members of the Rivers State House of Assembly allegedly loyal to the former Rivers State governor, Nyesom Wike, had during the week defected from the Peoples Democratic Party (PDP) to the All Progressive Congress (APC). After the defection, Governor Siminalayi Fubara presented the 2024 budget to the remaining five members of the House of Assembly. But lawyers are divided over political developments in the state.
While some of the lawyers gave backing to the development in the state, others described the entire process as a nullity. A Senior Advocate of Nigeria (SAN), Wahab Shittu, declared that the presentation of the N800 billion 2024 budget estimates to four Rivers State lawmakers at the Government House by Fubara, is illegal and remains null and void because, according to him, under Section 96(1)(a), 98(1), 98(2), only one-third majority of the members of the law-making body could effectively transact any lawful business.
He said: “So, one-third of 31 members is above 10, and less than eleven. So, it must be above 10 members who could form a quorum to transact business.
“Four members of the state House of Assembly are not even competent, and their actions are beyond legal power or authority; it is null and void.” On when the National Assembly is expected to step in, Shittu, who said that it is when the state legislative body is unable to function or incapacitated that the National Assembly could take over, arguing that “Such like what has happened now, the legislative assembly has been demolished, that is a demolition of the very essence of the legislature.
“So, there is no law-making body able to perform legislative functions now in Rivers State. Under these circumstances, the National Assembly can take over.”
On the legal implication of what is happening in the state, the SAN stated that “Our democracy is supposed to be democracy by rule of law. “What is happening in Rivers State is democracy by the rule of a jungle.”
But for another SAN, Mba Ukweni, there is nothing illegal in the action of Governor Fubara who presented his budget proposal to four members of the state House of Assembly.
According to him, “the other 27 members said they have left the PDP for the APC, and the Speaker, who is the presiding officer in whom the power resides, declared their seats vacant and requested INEC to conduct election into those constituencies.
“So, from that moment that their seats were declared vacant, there were no people representing those constituencies. “Those were the extant members of the House of Assembly at that material time, except we are saying there is no more House of Assembly in Rivers State.
“But as of the moment, there is a House of Assembly in Rivers State, now made up of four or five members. Though I learnt that about two members of the House have returned, that is another constitutional or legal issue altogether.
“If after declaring their seats vacant, they now say they have come back when they no longer have seats in the House, as far as I’m concerned, they no longer have seats in the House.
“So, the House is properly constituted, and the governor can present his budget to them because those are the members of the House of Assembly at that time.”
Ukweni insisted that it has not got to the stage where the National Assembly would step in, adding that it is only when there is a constitutional crisis that cannot be resolved or if there is an emergency, then, the National Assembly can intervene.
“So, for now, there is a House of Assembly. What is to be done is for INEC to conduct elections in those vacant constituencies.
“The situation is not beyond what could be handled in Rivers State,” he added.
On the legal implication of what is happening in the state, Ukweni argued that “It is a political and constitutional issue. What is happening is purely politics. It is the problem between the current and former governor that has given rise to the crisis in the area.
“Wike has to come to terms with the situation on the ground that he is no longer the governor of Rivers State. “As the sitting governor of the state, he would not have tolerated what he wanted Fubara to do for him.
“There is a sitting governor, who by the constitution is the governor of Rivers State, and he has to govern the state.
“The governor should stand firm and run the affairs of the state, taking full control of happenings in his state.”
Also reacting, a former Special Prosecutor, Special Presidential Investigation Panel for Recovery of Public Properties, Tosin Ojaomo, said the 27 former members of River State House of Assembly that defected from the PDP whose ticket they contested and won the election to the APC can be termed as an act of political suicide.
“They might have acted on a wrong proposition of the law, apart from the fact that Section 109 of the Constitution of the Federal Republic of Nigeria (As Amended) is very clear that the only ground upon which a member of the National Assembly or State Houses of Assembly can defect to another political party is when there is a division in the party whose ticket they were elected.
“The question begging for answer is; can the crisis rocking the River State chapter of the PDP be termed as a division in that political party?
“The answer is No, the courts have held in a plethora of cases that a political party is one, the River State chapter of the PDP is an administrative creation of the PDP as a political party and not the party itself.
“The question is can the division at the local government level of a political party be termed as a division in the political party, the answer again is No.
“Let’s take Benue State for example, the current crisis rocking the state chapter of the party cannot be deemed as a division in the APC.
“Let’s take a look at the Provision of Section 109 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) Section 109 (1)(a-h) provides thus: A member of a House of Assembly shall vacate his seat in the House if – (a) he becomes a member of another legislative house; (b) any other circumstances arise that if he were not a member of that House, would cause him to be disqualified for election as such a member; (c) he ceases to be a citizen of Nigeria; (d) he becomes president, vice president, governor, deputy governor, or a minister of the government of the federation or a commissioner of the government of a state or a special adviser; (e) save as otherwise prescribed by this Constitution, he becomes a member of a commission or other body established by this Constitution or by any other law.
(f) 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; (g) being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected:
“Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored; or [h) the Speaker of the House of Assembly receives a certificate under the hand of the Chairman of the Independent National Electoral Commission stating that the provisions of section 110 of this Constitution have been complied with in respect of the recall of the member.
“The Provision of Section 109 (1) (g) of the 1999 CFRN (as amended) has been subjected to judicial interpretation in the case of Hon. Sunday Ifedayo Abegunde vrs. Ondo State House of Assembly which travelled all the way to the supreme Court of Nigeria, the court clearly pronounced that where none of the exceptions which can allow a legislator to defect occurs, any parliamentarian in Nigeria who flout the provision automatically loses his membership of the State House of Assembly or National Assembly.
“I think what the constitution wants to prevent is the issue of indiscriminate movement of Honourable members of our National Assembly and State Houses of Assembly from jumping from one political party to another, we must not forget that the parliament is the bastion of democracy.
“Even though where a legislator decides to defect to another political party it is not the end of the road for the person to return back to the same house of assembly, he or she can decide to contest for the same position with the ticket of his new political party when INEC organise a new election and if he/she is successful at the election he or she goes back to the said house of assembly as a member of his new political party.
“With regards to budget presented to five members out of the 32 members original members of the River State House of Assembly, the 27 members who defected to the APC at the peril of their political career have clearly created a vacancy in their seats at the House of Assembly which means there constituencies are no longer represented at the River State House of Assembly.
“Do the five remaining members form a quorum? The question is how many members are now validly elected members of the River State House of Assembly after the vacancy created by the new members of the APC who are formerly members of the state House of assembly?
“The five members are in unison in passing the budget so the budget was validly passed by the five members who are to form a quorum in passing the budget.
“The National Assembly can only intervene to take over functions of a state House of Assembly where it becomes impracticable for the state House of Assembly to make law for the state, can that be said in this situation?
“The answer is No; the same River State House of Assembly just passed a budget for the state.
“Without being immodest on this matter, the 27 members of APC, who left the PDP can approach the court to see if their defection to the APC was formally done to amount to vacation of their seats because there must be a letter to the Speaker which must be read on the floor of the house or a cogent evidence of their membership of the APC before their seats can be deemed to have become vacant in the eye of the law.
“For those who are canvassing a different proposition of the law, when the Supreme Court makes a pronouncement on a subject matter, it becomes binding on all persons and authorities in Nigeria until the same court decides to set it aside.
“This should serve as a warning to other persons who are planning to follow the same path. “We all saw how the River State former Attorney General, Prof. Adangor, resigned from the cabinet based on principle; that is how a politician who has integrity should do, not a do or die politics.
“Politicians in Nigeria must learn how to blend principles with politics so that they can have their names intact even when they are playing politics”.
Having a different opinion, another Lawyer, Biodun Olugbemide submitted that, “It is not legal to present a budget to just 4 or 5 members in an assembly of 31 or 32 members. “According to Section 96(1) of the Constitution of the Federal Republic of Nigeria,
“The quorum of a House of Assembly shall be one-third of all the members of the House.
“This is the express provision of the Constitution, and according to Section 1, “This Constitution is supreme, and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”, while S1(3) of the same Constitution provides inter alia that, “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law, to the extent of the inconsistency, be void.”
“So, immediately there is a reflection of inconsistency with the provision of the Grundnorm, the appropriate authority should step in. “
As regards other legal implications of what is happening in Rivers State, unfortunately, Nigeria is yet to get it right in so many areas. When Obaseki of Edo State, ran the State with a similar pattern, working with less than required law makers, what came out of it? “For Fubara to order the demolition of a whole structure so that the House would not sit to effect his removal but hinged the demolition on the fact that the building did not pass integrity test; that structure will be rebuilt by the taxpayers’ money.
“I do not see any reasonable thing playing out than the poor masses being more impoverished, and at a point, both the godfather and his son reconcile, and ‘peace’ restored to the State.
“In all, the rule of law must always be allowed to prevail, if we must be considered as truly a civil society”.
