Election

Rivers State Political Crisis: Constitutional Matters Arising

INTRODUCTION

The recent events in the Rivers State Politics have become a trending discourse in Nigeria’s political and legal landscape. Our concern is not the major causes of this crisis but the legal implications that this crisis portends. The brief facts of this crisis are known to all and sundry, but the most recent events are capable and have indeed, raised the eyebrows of legal pundits, political analysts, and the general public. It is submitted with respect that, it behooves our political leaders to foster the best approach in resolving this crisis, and the courts to make pronouncements as the events unfold.

THE CRISIS

The political crisis between H.E Nyesom Wike, and his predecessor, H.E Siminalayi Fubara, has been on our daily headlines – a crisis that drew the attention of all, due to the political antecedents of the state. The crisis led to the attempted impeachment of the incumbent Governor, by 24 members of the House of Assembly. Luckily, same was heavily opposed by some honorable members and this was before an attempt was made to burn down the state Assembly by unknown political thugs.

Fast forward to the almighty defection of 27 members of the House of Assembly from the People’s Democratic Party (PDP), to the All Progressive Congress (APC), this was yet, another political tsunami. How come, 27 lawmakers decamped from the ruling party of the State? What on earth could have made Gov. Fubara fall apart with H.E Nyesom Wike? This question is more intriguing, because, borrowing from the words of my learned brother, Umar Sa’ad Hassan, Esq, “Fubara looked like someone who would ask the FG to forward his state’s allocation to Wike for his blessings first.” However, this is not our concern in this vista.

GOV. FUBARA’S BUDGET PRESENTATION: THE CONSTITUTIONALITY OR OTHERWISE.

It is no news that the annual budget of Rivers State was presented by the Governor to four (4) members of the House of Assembly. It also no news that the seats of the 27 decampees were declared vacant, and a call was made to the Independent National Electoral Commission (INEC), to conduct a fresh election.

The presentation of the budget has caused a constitutional conundrum, and garnered the attention of renowned legal sages. In condemning the event, the cerebral legal sage, Edwin Clarke, SAN, said, “It is sheer ‘rascality’ and something Nigerians must unite to resist for the sanctity of democracy.” The renowned lawyer added that “failure to stop it could mean repeating the same anomalies for 20 more years.”

The position of the law on this issue is settled by section 96 of the 1999 Constitution of the Federal Republic of Nigeria, as altered. For purposes of clarity, we replicate the same:

  • The quorum of a House of Assembly shall be one-third of all the members of the House.

This section as regards quorum also applies to quorum for passing of budgets. The section even made provisions for circumstances of lack of quorum. Sub-section 2 of the same section provides thus;

  • If objection is taken by any member of a House of Assembly present that there are present in that House (besides the person presiding) fewer than one-third of all the members of that House and that it is not competent for the House to transact business, and after such interval as may be prescribed in the rules of procedure of the House, the person presiding ascertains that the number of members present is still less than one-third of all the members of the House, he shall adjourn the House.

It should be noted that, in the Rivers State Assembly, One-third (1/3) of 31 minus the deceased member is 11, and only 4 members were present. Therefore, any sitting without satisfying constitutional requirements is illegal and null, and penalties apply accordingly. Section 99 of the Constitution provides thus;

(99). 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.

Today, we have a situation where only four (4) members passed the annual budget of a state in Nigeria. What precedence do we want to create? I would allow the constitutionality or otherwise of the budget presentation to linger in your minds if the answer is not obvious. Oh, Demon-crazy, sorry, Democracy!

THE DEFECTION OF 27 LAWMAKERS:  WHAT IS THE LAW?

The defection of the 27 lawmakers has raised dust on the fate of the retention of the seats by the decampees. The law is trite that a member of a House of Assembly shall lose his seat if he decamps from the political party of which he was previously a member… as a result of division. For purposes of clarity, the section is replicated in the extension:

(109) (1)A member of a House of Assembly shall vacate his seat in the House if –

(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…

This section has received judicial blessings from a plethora of cases, more recent is the SPEAKER, CROSS RIVER HOUSE OF ASSEMBLY & ANOR v. EKOM & ORS (2021) LPELR-55738(CA). In that case, almost all the members of the house defected with the former Governor from the People’s Democratic Party (PDP), to the All Progressive Congress (APC). The Court of Appeal, Per MUHAMMED LAWAL SHUAIBU, JCA (Pp 17 – 18 Paras B – F), analyzed the provision of the Constitution, thus:

“The pertinent provision of Section 109 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) provides as follows:- “109 (1) – A member of a House of Assembly shall vacate his seat in the House if:- (a).. (b).. (c).. (d).. (e).. (f).. (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.” In A.G FEDERATION V ABUBAKAR (Supra), the Supreme Court was emphatic that it is manifest from the provision of Sections 68 (1) (g) and 109 (1) (g) of the 1999 Constitution that the makers of the Constitution intended to and indeed made punishable the defection of a member of the Senate, House of Representatives or a House of Assembly from the political party that sponsored him to another political party before the expiration of the period for which the legislative house was elected by declaring the seat of such member vacant. However, the proviso to Sections 68 (1) (g) and 109 (1) (g) of the Constitution aforesaid in my view creates an exemption to the general rule to the effect that defection from one political party to another by a member of a legislative body is justified where there is a division in the political party of which a member won the election or where his party entered into a merger with other political party or parties or where there exist a faction within his political party on whose platform he became a member of such legislative body.” See also: DELTA STATE HOUSE OF ASSEMBLY & ANOR V. DPP & ORS (2014) LPELR-22808(CA), ADEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2014) LPELR-23683(CA).

Now, as I discussed and pondered with a colleague, the question to answer is:

Whether there was a division in the People’s Democratic Party (PDP), Rivers State Chapter, before the defection?

The answers to this question would determine the fate of the 27 lawmakers before the court. If the question is answered in the affirmative, then the 27 lawmakers would comfortably retain their seats, but if the question is answered in the negative, the 27 lawmakers would have to vacate their seats.

CONCLUSION

While more events unfold, all hands should be on deck, lessons should learnt, and the law should take its course.