There seem to be a large mutation of arbitrariness and unholy desecration of party politics in Rivers State and also by implied extension in Nigeria.
The unfolding political actions and counter-actions in Rivers State is expected, but insulting to our presumed senses of democratic maturity in our journey to greatness.
I wish to state it herein copiously, that I have no dog in the fight. However, it is within my constitutional rights to so hold, if I desire to do such in expression and thought.
It is becoming clearer that orchestration of deception is the hallmark of party politics in Nigeria. An axiomatic fact must be made that, a country is governed and driven in an uncompromised adherence to the Constitution, which is the grundnorm pursuant to Section 1 of the 1999 Constitution of Federal Republic of Nigeria and with this uncompromising position, any behavioral disposition in whatever form that is at variance with the Constitution, the Constitution shall prevail, and that other law shall to the extent of the inconsistency be void pursuant to Section 1 (3) of the Constitution.
The Constitution is described as the grundnorm and the fundamental law of the land. All other legislations in Nigeria and their hierarchy are from the provisions of the Constitution. It is an organic instrument which confers powers and also creates rights and limitations.
It regulates the affairs of the Nation State and defines the powers of the different components of government as well as regulating the relationship between the citizens and the State. NWOKEDI VS. ANAMBRA STATE GOVT. {2022} 7 NWLR (pt.1828).
To this extent, it is interesting to bring it to our consciousness the imbroglio in Rivers State House of Assembly.
House of Assembly for each of the States of the Federation are established pursuant to Section 90 of the 1999 Constitution. It therefore depicts the law that the Houses of Assembly legislative obligations shall be in strict compliance with the provisions of the Constitution.
Flowing from the foregoing, this brings the Rivers State House of assembly macabre dance to the discourse. Party defection took place at the Rivers State House of Assembly, where 27 members defected from PDP to APC and the members confirmed such to the House of Assembly. In my humble opinion, this itself is an affront to Section 221of the 1999 Constitution which provides that votes belong to political party.
It must be made known to the public that defection is a constitutional right of any member of the National Assembly or States Houses of Assembly pursuant to Section 109 (1) (g) and Section 40 of the Constitution. However, there are implications/ gains/and or consequences that goes with it pursuant to section 109 (2) of the Constitution.
Sequel to the above, some commentators have postulated various arguments or interpretation of the defection.
However, it is my humble opinion that, once a member(s) changes his/her political party before the expiration of the period for which that House was elected, and such defection was communicated to the Speaker of the House and the Speaker duly gave effect to it in line with sub section 2 of section 109 of the Constitution, that position or seat is legally declared vacant.
It is important to note the caveat therein of the Constitution before the Speaker can declare such seat vacant. The provisor to such is that, ‘provided that such person 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 a merger of two or more political parties or factions by one of which he was previously sponsored’, (as it concerns this piece) The Constitution does not make the declaration of the Speaker to a defected member inchoate.
The remedy for a defected Legislator in such a situation is to approach the court to argue, if he so wishes to ventilate his dissatisfaction, that his seat was unlawfully declared vacant pursuant to section 6 (6)(b) of the Constitution. It is a matter of facts and law.
See the case of Abegunde vs. Ondo state House of Assembly.[2015] LPELR-24588. It must be pointed out that in the above cited case, the Supreme Court in this landmark decision held that a division in any branch (State, Local Government, etc) of a political party cannot justify an elected member of the House of Representatives (a fortiori the Senate and the House of Assembly) to defect without losing the privilege of his seat. In view of the above, it is a matter for a judicature as they may deem it fit.
Furthermore, on the issue of the budget passed into law by the House, it is the Speaker’s constitutional responsibility to prepare and lay before the House of Assembly the State budget estimates for year 2024.
The legal conundrum in Rivers State House of Assembly situation at hand is on the number of members left in the face of present reality of which 27 members defected to another political party (although it is the public space that two members retraced their way back to the PDP, however, can the two members just stroll or walked back to the House whimsically without legal implications having had their seat declared vacant? Well, I shall deal with the legal implications of such later thereon).
It is a constitutional truism that, it behooves on the Governor of Rivers State to fulfil such constitutional obligation. However, there is a conundrum of absurdity as regards the five members’ composition of the House of Assembly. This smoke screen situation ignited the issue of quorum.
This brings to my mind the maxim of ‘Ubi Jus Ibi Remedium’. According to Section 96(1) of the Constitution, the quorum of a House of Assembly shall be one-third of all the members of the House. This requirement is a constitutional mandate on the number of members of the House in conducting legislative businesses at every session.
This is not in doubt, however, this I believe also applies to the five members that passed the budget. This is because as at the time they passed the budget, the five members were the entire members of the House Assembly. (It sounds absurd, but it is the law) This, in my modest opinion satisfied the requirement of quorum. Loud enough, this present House has membership of five and the budget was presented before them, which thereafter was passed into law within 48 hours.
Jurisprudentially speaking, Section 102 comes to mind in addressing the wrongly perceived illegality of the above. Section 102 of the Constitution provides, thus: A House of Assembly may act notwithstanding any vacancy in its membership, and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate such proceedings’’.
The law envisages vacancy in the House of Assembly at any point, however, the law did not envisage this magnitude of defection. However, ‘any’ as used in the provision (section 102) means, the number could be few or many as in this case) I have taken my time to look through the sections of the Constitution and none has remedy apart from Section 102 of the Constitution which I copiously cited above.
It was mandatory to pass the prepared Rivers State budget estimates into law, because the activity of the State must not be stunted. This is because there is no vacuum in governance. It should be noted, that budget presentation is time bound and it cannot be put in abeyance.
It is the law as held in the case of Ogheneovo v. Gov. Delta State [2023] 2 NWLR (pt. 1868) para 2, p. 368, that, ‘’the time limited for doing anything by the 1999 Constitution (as amended) is constant or permanent and cannot be enlarged or extended.
The time lines provided by the Constitution are like rock of Gibraltar or Mount Zion that cannot be moved’’.
To take the argument further, where a statute prescribes a particular manner or method of doing an act or exercising of authority, no other method will be allowed as substitute. This means all other methods are excluded and discretion is taken out of the equation. UNION BANK PLC VS. IGALA CONSTR. CO LTD {2021} 10 NWLR (pt. 1785).
The discomfort that occasioned the passage of the budget by five members of the House is sentimental vide political interest or moral consideration. In all, the law is the law.
It is with the above reasoning; I believe the passage of the budget is in harmony with the law. However, the reality is riddled with complexities.
Another flip to the argument, could be, the budget should have been presented before all the members of the House of assembly, including the 27 members who defected as at then to scrutinize and maybe pass the budget.
It probably may have been sweet to the ears of some people but not all the people. In my opinion, such would have been an illegality because, having had their seats declared vacant as an affront against section 109 (1)(b) of the 1999 Constitution, and the Speaker had given effect to it pursuant to section 109 (2), It will take a court to invalidate the pronouncement of the Speaker. And this was not the case as at the time the budget was passed into law.
Let me assume without conceding that the budget was laid before the House of Assembly, while having the defected 27 members in attendance having declared their seat vacant. Their presence at the session would have constituted an offence pursuant to Section 99 of the Constitution.
The sections provide, thus: Any person who sits or votes in a House of Assembly of a state knowing or having reasonable grounds for knowing that he is not entitled to do so commits an offence and is liable on conviction to such punishment as shall be prescribed by a Law of the House of Assembly.
In view of the above, it would have been difficult to present the budget before the House of Assembly with inclusion of the defected 27 members.
Another discomfort in the public space is that, was the budget properly passed having done so in 48 hours?
First and foremost, I need to point out a legal principle of the presumption of regularity pursuant to section 168 of the Evidence Act 2011.
Presumption of regularity is where it has been proved that an official act has been done, it will be presumed to be properly done in harmony with the law, until the contrary is proved. This favours the budget as properly passed into law by the House of Assembly.
To buttress this, may we humbly take a journey through the below Sections accordingly; Section 100 (1) The power of a House of Assembly to make laws shall be exercised by bills passed by the House of Assembly and, except as otherwise provided by this section, assented to by the Governor.
And sub 2 says, a bill shall not become Law unless it has been duly passed and, subject to subsection (1) of this section, assented to in accordance with the provisions of this section.
Sub 3 says: Where a bill has been passed by the House of Assembly it shall be presented to the Governor for assent.
And sub 4 says: Where a bill is presented to the Governor for assent he shall within thirty days thereof signify that he assents or that he withholds assent.
A perusal of the above shows, there is no minimum time frame to attend to budget estimates when it is laid before the members of the House.
Furthermore, the word used in sub 4 of the above is that, having passed the bill by the House, ‘’the Governor shall assent to it WITHIN thirty days thereof signify he assents or that he withholds assent’’. The operational word is ‘within’ thirty days. It can be within a day, two days, three days, as long as it is not more than thirty days.
Flowing from this, I humbly dispel the argument that, the passage of the budget and assents within 48 hours is not an aberration of the law. Sentiment is not the law. I hold bold to say, this is another complexity.
In conclusion, I respectfully submit that the various diverse arguments, discomfort and complaints should be targeted at the National Assembly in agitation or call for amendments of all the identified lacunas, rather than strengthening conjecture and sentiment. In all, Democracy is a marathon and not sprint. May God bless Nigeria.
VICTOR OZIEGBE ESQ
victoroziegbeandassociates@gmail.com
