The Directives of the House of Representatives To Shut-Down Edo State House of Assembly is Unconstitutional And Ultra-Vires Section 11 of The Constitutions- Dr. Kayode Ajulo
On Wednesday while adopting the report of an ad-hoc committee, the House of Representatives made the following resolutions:
i. That the Governor of the State is mandated to issue a fresh proclamation for the Edo State House of Assembly within one week;
ii. That all actions taken by the current assembly in Edo should be declared null and void pending proper inauguration;
iii. That the Inspector-General of Police (IGP) and the Director-General (DG), Department of State Service should shut down the Edo State House of Assembly and provide adequate security to allay further fears of intimidation and threat as alleged by Members-elect,” the recommendations read.
On the heel of the above resolutions of the House of Representatives, it is imperative to beam the search light on the constitutional powers of the National Assembly in instances of this nature. Section 11 places the toga on the National Assembly to make laws for any state House of Assembly where the latter is unable to perform its functions by reason of the situation prevailing in the state.
For the sake of emphasis, the section 11(4) & (5) provide that:
At any time when any House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in that State, the National Assembly may make such laws for the peace, order and good government of that State with respect to matters on which a House of Assembly may make laws as may appear to the National Assembly to be necessary or expedient until such time as the House of Assembly is able to resume its functions; and any such laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the State: Provided that nothing in this section shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the State from office.
(5)For the purposes of subsection (4) of this section, a House of Assembly shall not be deemed to be unable to perform its functions so long as the House of Assembly can hold a meeting and transact business.
Flowing from the above, it is succinct to state that the section only envisages situations where the House of Assembly is unable to perform its functions and the National Assembly can only assume the position of the state House of Assembly and make laws for the state only in such circumstance.
Literal Interpretation of The Constitution:
It is general principle of law of great antiquity to the effect that where the words of the Constitution or statue are not ambiguous, they are to be given their literal interpretations. See Skye Bank v Iwu (2017) LPELR-4259 (SC); Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50.
The Apex Court in Tanko v State (2009) LPELR 3136 (SC) on the supremacy of the Constitution held inter alia that:
It is by it (the Constitution) that the validity of any laws, rules or enactment for the governance of any part of the country will always be tested, It follows therefore, that all powers; be they legislative, executive and judicial, must ultimately be traced or predicated on the Constitution for the determination of their validity.
The Unlawful Directives:
It is therefore unequivocal that the directives given by the House of Representatives are unconstitutional and ultra vires the powers conferred on the National Assembly by that section.
The poser then is: is the Edo State House of Assembly unable to perform its functions in order to validly invoke the powers conferred on the National Assembly pursuant to section 11(4) of the Constitution?
It is pertinent to note that pursuant to Section 96 of the Constitution, the 9 members of the Edo State House of Assembly validly constituted the one-third quorum required for the sitting of the House and as such, the National Assembly is precluded from making laws for the State as provided by section 11(5) of the Constitution.
The Joint Sitting of The Senate & The House of Representatives:
On the second limb, Assuming but without conceding that the National Assembly has the powers to give such directives, the law provides for a joint sitting of the “the National Assembly” not solely The Senate nor the House of Representative as provided by section 11 of the Constitution and the required quorum shall be one-third of all the members of both Houses pursuant to section 54(2) of the Constitution.
On the validity of the proclamation made by the Governor Obaseki pursuant to section 105(3) of the Constitution and the Inauguration of the 8th Assembly.
It is left for the court of law to determine the validity or otherwise of the proclamation by the Governor pursuant to section 6 of the Constitution. The directives of the House of Representatives only amount to placing the cart before the horse.
There is no gain saying that the House of Representative by its directive is assuming the role of the judiciary which is against the cardinal principle of separation of power.
The House of Representatives under the supervision of Rt. Honorable Femi Gbajabiamila, a progressive, seasoned parliamentarian and a lawyer can not assume the toga of a National Assembly without the joint or concurrent nod of the Senate.
It should be noted that Nigeria is not a banana republic but a democratic society where rule of law must take its full course.