WHY SECTION 91 OF THE CONSTITUTION 1999 (as amended) REMAINS THE FULCRUM OF THE CURRENT IMPASSE IN THE EDO STATE HOUSE OF ASSEMBLY. BY. SAMSON R OSAGIE, ESQ.
WHY SECTION 91 OF THE CONSTITUTION 1999 (as amended) REMAINS THE FULCRUM OF THE CURRENT IMPASSE IN THE EDO STATE HOUSE OF ASSEMBLY.
SAMSON R. OSAGIE, ESQ.
I have read and listened to so many legal arguments concerning the current impasse that currently beset our own Edo State House of Assembly.
I was a member of the Edo State House of Assembly between 1999 and 2007. Ascended to the House of Representatives up until 2015, all after training as a lawyer @Ife and the Nigerian Law School, Lagos 24 years ago.
I have also been constrained by my relationship with some of the beneficiaries of the legal hiatus regarding the Edo State House of Assembly, but the arguments are very compelling that it is imperative I put down my thoughts in very strong terms.
Of all the arguments, that which was recently canvassed by a Law teacher, my brother Adaze Emwanta was most attractive and deserving of my reaction, without which I will become the onlooker which Frantz Fanon described as either a coward or traitor.
First, the major plank of Adaze’s submission is that Section 102 of the Constitution is the operating provision guiding the conditions prevalent today in the Edo State House of Assembly. For emphasis I reproduce the section hereunder:
“102. 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”.
His contention is that this provision provides legitimacy for the current composition of the House of Assembly in Edo and not Section 91 of Constitution.
With profound respect to the learned law teacher, I disagree with him wholeheartedly and I will give my reasons hereafter, but what does Section 91 of the constitution say?. I reproduce same verbatim hereunder:
“91 A House of Assembly of a State shall consist of three or four times the number of seats which 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”
Having stated the provisions of the constitution ,what are the facts on ground today as regards the composition of the Edo State house of Assembly vis-a-vis the requirement of the constitution.
On the 17th of June , 2019, Nine members were conscripted at night for swearing in at the chambers of the Edo State House of Assembly, the other 15 were not part of the Swearing in. Subsequently, two other members who were originally not part of the nine joined them to be sworn, while two of those who were originally sworn in have since dissociated themselves from what they regard as a contrived oath taking against their will and established procedures known for the convening of a new parliament. In other words, while 10 members have accepted the Swearing in regardless of the flaws which the others have complained of, 14 members have refused to accept same.
Now assuming but not conceding that the inauguration was regular, only 12 out of 24 members are currently members of the Edo State house of Assembly have taken oath, albeit under questionable circumstances.
In view of the provision of the constitution, Adaze needed to let’s know what constitute a house of Assembly as distinct from the procedures for carrying out the legislative business or functions of the house of Assembly.
I dare say , that there has to exist a house of Assembly before it can perform it’s functions and the provisions of Section 91 in this regard is what defines a house of Assembly and not section 102 as posited by Adaze. Its import is that no house of Assembly shall have less than 24 and more than 40. IF the current composition of the house is accepted( I do not think its acceptable legally) it means it has 12 members less than the minimum number of members required by the constitutional. Note that Edo State is not a Local Government in Nigeria, where you can have 10, 12 or 13 wards with each being represented by a council, it’s a State defined and recognized in the fifth schedule to the Constitution.
Fortunately, the framers of the constitution envisaged this scenario hence section 91 is first before section 102. In carrying out the business of the Legislature the Assembly has to be properly constituted first by the constitutionally allowed number of members before a forum can be determined. It is unlikely if not impossible to determine a quorum of a legislative assembly having less than the required membership in accordance with the constitution.
I submit that in Edo State today, there is no Legislature because if only 12 members have taken oath(even though two out of the 12 have resiled from the oath) 10 members cannot form a house of Assembly in any part of Nigeria under the 1999 Constitution.
If 10 or 12 members cannot constitute a house of Assembly, how can Adaze contend that such a group( not been a house of Assembly) can perform legislative functions under the guise that the others are absent by relying on Section 102?. It is legally impossible!
With the greatest respect, I found his submission unhelpful in resolving the logjam, and I submit that only a recourse to a proper composition of the House of Assembly of Edo State such that it can have it’s full membership sworn in can bestow legitimacy on the Assembly.
The consequences of the current impasse without recourse to the law and parliamentary practices and procedures,(regardless of the politics) are dire and will impact negatively on the social political and economic well being of the State.
It therefore behoves on those who are in authority to reverse this trend to do so by heeding the voice of reason and respect for the law without further delay.
~Samson R. Osagie Esq, is a Lawyer, Corporate Executive, Former Minority Whip of the House of Representatives and a Chieftain of the All Progressives Congress writes from Benin City.