By Obioma Ezenwobodo
Introduction
Recently, the Benue and Zamfara States Houses of Assembly have been enmeshed in political crises that have led to the suspension of 13 of the 32 members and 10 of the 24 members, respectively. By way of intervention, the National Assembly, via the House of Representatives, has issued summons to the Governors and the Speakers of the Houses of Assembly of both States as a prelude to eventual takeover of the functions of both Houses by the House of Representatives.
This write-up is not an endorsement of the actions or inactions of the different political actors in both States, nor is it a justification of the suspension of the legislatures, but an attempt to shed light on the extant constitutional provisions to streamline public opinion and actions of stakeholders for the sustenance of democracy. It is admitted that the National Assembly’s intervention might have been spurred by good faith to forestall the breakdown of law and order in the affected States. Despite this, the National Assembly cannot go outside or beyond the Constitution in executing its functions, as the Courts will pronounce such actions unconstitutional, null, and void. See A-G., Abia State v. A-G Federation (2002) 6 NWLR (Pt. 763) 264.
Extent of the Federal and States’ Legislative and Executive Powers
Nigerian constitutional democracy is anchored on a Federal system of government that consists of the Federal Government, States Governments, and Local Government Areas. Section 2(2) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as altered) provides that Nigeria shall be a Federation consisting of states and a Federal Capital Territory. Further, section 4(1), (2), (3) and (4) vests legislative powers of the Federal Republic of Nigeria on the National Assembly, with absolute powers to legislate on matters included in the Exclusive Legislative List as set out in Part 1 of the Second Schedule of the Constitution and also, with discretionary powers on matters included in the Concurrent Legislative List set out in the first column of part II of the second Schedule to the Constitution.
The notable exceptions to these provisions are as provided in section 11(3) and (4), which provide that when the Federation is at war, the National Assembly can make laws for matters not included in the Exclusive List, and also when a State House of Assembly is unable to perform its functions. On the other hand, section 4(6) and (7) vests the legislative powers of a State on the House of Assembly of a State with powers to legislate on matters not on the Exclusive Legislative List, matters on the Concurrent Legislative List that have not been covered/legislated by the National Assembly and any other matter which it is empowered to make laws on. By Section 4(8), the legislative powers of both the National Assembly and the States are subject to the Courts’ jurisdiction and reviewing powers. Deriving from the above, it is wrong for the House of Representatives to assume jurisdiction in internal wrangling or disputes escalating in both States’ Houses of Assembly in complete disregard of the review powers bequeathed on the courts by the Constitution. See Government of Plateau State & Ors v. Nwaokorie (2014) LPELR-23368(CA).
The Federal structure of the country is further deepened by the provisions of section 5(1) and (2) which distinctively delineated and conferred executive powers of the Federation on the President while subject to laws made by the National Assembly, and executive powers of the State on a Governor equally subject to laws made by the House of Assembly of the State. The literal implication being that the National Assembly has supervisory jurisdiction to check and balance the executive powers of the President through its power to conduct investigations and oversight as provided by section 88. On the other hand, the House of Assembly of a State has a similar supervisory jurisdiction to check and balance the executive powers of a Governor through its power to conduct investigations and oversight as stated in section 128.
The National Assembly cannot summon a Governor
Deducting from the federal system of government enunciated above, it is clear that the idea of the National Assembly summoning an executive Governor of a State that is subject to laws made by his State House of Assembly is without basis. The public discourse had hitherto centered on whether the National Assembly could summon the President and not whether they could summon a Governor. To crystallize the proposal for the National Assembly to acquire powers to summon the President, the Assembly had through some constitutional alterations, sought enact such powers which is yet to materialize. It is therefore needless to argue in favour of the National Assembly summons on the States’ Governors as there is no constitutional provision to support same.
By the provisions of Section 108, the question of a Governor attending a meeting of the House of Assembly is totally within his discretion and choice, devoid of any summons or invitation. For better appreciation, section 108 (1) and (2) read thus:
“(1) The Governor of a State may attend a meeting of a House of Assembly of the State ether to deliver an address on the State affairs or to make such statement on the policy of government as he may consider to be of importance to the State.
(2) A Commissioner of the Government of a State shall attend the House of Assembly of the State if invited to explain to the House of Assembly the conduct of his Ministry, and in particular when the affairs of that Ministry are under discussion.
A careful perusal of the above provision indicate the use of the discretionary/permissible term ‘may’ in subsection 1 and the use of the compulsory/mandatory term ‘shall’ in subsection 2. The implication is that the duty to attend a House of Assembly meeting is at the discretion of a Governor, while the duty is mandatory on his Commissioner to attend when invited by the House of Assembly. In other words, it is only a Commissioner who can be invited, while a Governor can exercise his choice of attending the meeting of the House of Assembly.
These provisions are specific to the right of attendance of a Governor to a meeting of the House of Assembly vis-à-vis any other legislative House as against the general provisions of sections 88 and 89 that deal with the powers of the National Assembly to compel attendance of any person to give evidence in an investigative hearing. Section 88 is not just a general provision but a subjective one at that, as it starts with the phrase, ‘subject to the provisions of this Constitution’. It is a well-settled principle of law that where an issue is governed by general and specific provisions, the latter will prevail in the interpretation of the issue before the court. This is because a specific provision will be deemed to have anticipated the issue as against the general provision. See Jack v. University of Agriculture Makurdi 2024 LPELR-SC. 262/2000 and Ibori v. Ogburu (2004) 15 NWLR (Pt. 895) 154.
A similar provision to section 108 is section 67 which equally gives the President the discretionary right to attend meetings of the National Assembly. These provisions imply that there is a parallel between the functions of the National Assembly and the President and between the House of Assembly of a State and a Governor. It is therefore an anathema for the National Assembly to summon a Governor under any guise, same as it would be for a House of Assembly of a State to summon the President under any guise.
It is worth noting also that the provisions of section 308 that confer immunity on the President and Governors against criminal/civil proceedings, or arrest, act as a shield against summons by the legislative houses, which could be enforced by way of arrest of the defaulting party or person.
The National Assembly cannot summon the Speaker or Members of a State House of Assembly in the Exercise of their Legislative Duties
By appreciating the concept of federalism and its provisions in the Constitution, the Leadership of the National Assembly has no constitutional basis for summoning the leadership of another legislative house operating at the State level, as the same summons cannot be extended to it. Section 110 provides for the regulation of the procedure of the State House of Assembly by providing that a House of Assembly shall have the power to regulate its procedure, including the procedure for summoning and going on recess. Thus, the actions, proceedings, happenings, and businesses of a House of Assembly are regulated and managed by itself and not those of the National Assembly, subject to the reviewing authority of the courts as provided by section 4 (8). It therefore follows that the proceedings or businesses of a House of Assembly are not subject to the supervision or review by the National Assembly but rather by the Courts.
The National Assembly cannot take over a Functioning State House of Assembly
The Constitution only permits the National Assembly to take over and make laws for a State when the state’s House of Assembly is unable to function. Section 11 (4) provides thus:
“At any time when a 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.”
Gleaning from the above provision, the situation that would warrant a State House of Assembly to be deemed to be nonfunctional must be such situation that is prevalent in the State and not necessarily limited to political crisis within the House. To this effect, the situation in the State must be such that makes it impossible for the House of Assembly to perform its functions. It is safe to deduce that such a situation could be a natural disaster, war, a terrorist attack, or more.
In an attempt to provide clarity on when a House of Assembly could be deemed to be non-functional and therefor rip for the National Assembly to take over its functions, section 11 (5) provides that for the purposes of subsection (4), 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. The textual explication is that a House of Assembly that sits and transacts business is immune from being taken over by the National Assembly. The question of when a House of Assembly is deemed unable to perform its functions lies in the House forming a quorum to meet for business. Section 96 provides that the quorum of the House of Assembly shall be one-third (1/3) of all the members of the House. It therefore implies that when a House has quorum of 1/3 of all the members of the House to meet and perform its functions, the National Assembly would have no legal justification to take over or assume the functions of the House.
This issue has been judicially decided and acted upon by the Federal High Court in 2019 in an unreported case between the then Deputy Speaker of Edo State House of Assembly against the National Assembly where Omotosho J. held that nothing before it shows that the House is unable to sit as the House has been carrying out its legislative duties and thus the National Assembly lacks the power to take over the Edo State House of Assembly.
Conclusion
Gleaning from the enunciated authorities and facts of the extant events unraveling in both the Benue and Zamfara States Houses of Assembly, it is without doubt that both Houses still have the requisite quorum of 1/3 of all the members to continue transacting legislative business pending the amicable resolution of the crises by concerned political actors or through the instrumentality of the Courts. Therefore, any attempt to take over the businesses of both functional Houses of Assembly by the National Assembly would amount to a forceful takeover of government contrary to section 1(2) and exercise of legislative powers in utter breach of the Constitution. In the case of Edo State House of Assembly & Ors v. Igbinedion & Ors (2021) LPELR-55990(CA) (Pp 93 – 93 Paras E – F), the Court, per Ekanem JCA, sounded a note of warning against such an action by holding thus:
“The legislative powers of the Legislature cannot be exercised inconsistently with the Constitution and when it is so exercised, it is invalid to the extent of such inconsistency. See Section 1 (1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and INEC V. Musa (2003) 3 NWLR (pt. 806) 72.”
It is therefore apposite that the National Assembly should tow the path of law and reason by not meddling in the affairs of sub-regional States’ Houses of Assembly as that would amount to deliberate usurping and forceful takeover of the functions of a Constitutional body.
Obioma Ezenwobodo LL.M
Managing Partner, Resolution Attorneys
Executive Director, Policy & Legislative Advocacy Network (PLAN)
Pioneer Chairman, Nigerian Bar Association, Garki Branch, Abuja (2022/24)
