Understanding The Intricate Issues In The House Of Assembly In Nigeria, By Douglas Ogbankwa Esq
THE House of Assembly of a State is an independent institution, with it’s Leadership and as such is it is not a department of any other Institution of Government. The Governor heads the Executive, the Chief Judge heads the Judiciary, while Speaker heads the House .There Heads are co-heads of there organs of government, no one should boss it over the other .Check Sections 4,5 &6 of the Constitution of the Federal.
The first issue is that House of Assembly hold its activities inside the hallowed chambers of the House and within Parliamentary Hours. in the case of Danladi v. Taraba State House of Assembly (2014),11,SCNJ,134, the Supreme Court stated per Olubode Rhodes-Viviour (JSC,as he then was ),that a House of Assembly is not a secret cult,where you hold proceedings at nocturnal hours of the day ,that Proceedings of a House of Assembly must be held in the hallowed chambers of the House and nowhere else ,at parliamentary hours (10am to 4pm) , in public ,to allow for public participation and public scrutiny.In the case an Impeachment of a deputy governor the took place in a hotel was set aside as it was not done inside the House of Assembly, just like it was done at night, outside parliamentary hours .
2.A speaker cannot purported to declare seats of a House of Assembly vacant , where there is a suit pending over the matter. Following the Rules of Lis Pendis . The only scenario envisaged by the Constitution for the declaration of seats vacant is for a member of the House not to sit for a particular time within a legislative years. cause Legislative Year ,for the purpose of determining the number of days the said Members have been absent from Meetings of the House and the declaration of the Seat of a Member of a House of Assembly vacant is a process that requires ,giving the Member Notice in Writing in advance of the intention of the House to declare his seat vacant ,allowing the Member to defend himself,a physical examination of the Attendance Register of the House with the Member and his legal representative (if any ) ,Setting up of a Committee to ascertain the allegations against the Member ,the Committee reporting back to the House its findings ,a consideration of the Findings of the House by a Committee of the whole and votes being taken thereafter on the issue and an issuance of the Hansard of the House on the issue is what completes the Process.This is in keeping with the Constitutional threshold of fair hearing ,which ensures due process and not leaving the fate of an elected representative of the people to the vagaries of Political expediency and intrigues.The Law is always a guide. On the above proposition of law ,See Usman v. Kaduna State House of Assembly.
(2007) 11 NWLR,(Part 1044) 158,C.A.
If the constitutionality of any activity of the House is being challenged, can you declare any seat vacant? This is following in the time honoured principal of lis pendis-parties are to stay action in a Matter pending the Hearing and Determination of a Matter . See Chief Emeka Odumegwu Ojukwu v Military Governor of Lagos State (1989) 2 NWLR (Part 10)
Section 91 of the Constitution says a House of Assembly of a State shall consist of of not less than 24 Members and not more than 40 Members .
Section 91 of the Constitution of the Federal Republic of Nigeria ,1999 (As Amended ),provides this :
Subject to the provisions of this Constitution, 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
When ever the word “shall”,,is used ,it indicates compulsion and a mandatory obligation that can not in any way be derogated from.Section 91 (1) of the Constitution of the Federal Republic of Nigeria,1999 (As Amended), provides thus :
“The Quorum of a House of Assembly,shall be one-thirds of all Members of the House “.A Quorum is only activated upon inauguration.You can not have a quorum of a House not inaugurated and the Clerk of the House stated on record that no notice of inauguration in writing was given to the inaugurated Members .There three types of Notices in Law,viz:
▪︎Actual Notice, constructive notice and implied notice
9.In the Section relating to the declaration of the Seats Vacant ,the Constitution talks about Members and not Members Elect .
Section 109(1)(f) of the Constitution of the Federal Republic of Nigeria ,1999 (As Amended,) provides thus :
…A Member of a House of Assembly shall vacate his seat in the House, if without just cause, he is absent from Meetings of the House of Assembly for a period amounting in the aggregate to more than one third of the total number of days during which the House meets in any one year.
Separation of Powers, properly delimits the Executive ,Legislative and Judicial Powers of the State as enshrined in Sections 4,5 and 6 of the Constitution of the Federal Republic of Nigeria,1999, (As Amended), by the 4th alteration , activities of the House are within the province of the Internal Affairs of the House that borders on Political Question,that is not amenable to the control of the executive ,but the Moderation of the Courts vide Judicial Review .See Balonwu v. Governor of Anambra State (2009) 18 NWLR (PT. 1172) 13,SC.
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