Whether It Is “Illegal” To Suspend And Withhold Entitlements Of A Law Maker; Recent Phenomena In Kano And Lagos States By Abdurrahman Nasir Salis Esq,

INTRODUCTION:

It is still fresh in the minds of those who keep abreast of the happenings in Nigeria’s political landscape that, the Kano and Lagos states Houses of Assembly on 16^th and 10^th days of March 2020 respectively, suspended some members of the houses (5 members in kano and 2 in Lagos), citing the Houses Standing Orders as justification for the suspension. It could also be recalled that similar or same episodes such suspension occurred repeatedly at both the National Assembly and other state Houses of Assembly. Generally, when such suspension occurs, the aftermath witnesses an outcry as an exhibition of dismay from the people of the constituency of the suspended member.

It is a at this point pertinent to decipher the term “Suspension” in order ease understanding of the piece to the reader. The word means:

“The temporary deprivation of a person’s powers and privileges especially of office or profession”.

 Black’s Law Dictionary 7^th Edition page 1460.

The word equally received a blessed judicial definition in the case of THE SPEAKER BAUCHI STATE HOUSE OF ASSEMBLY v HON. RIFKATU SAMSON DANNA (2017) 49 W.R.N P95 as:

“Temporary withdrawal of privileges and rights from either an employment or an office pending the happening of certain events”.

It is clear from the aforesaid definitions that any suspension in the House of Assembly will cause a vacancy within the period of the suspension and will deprive the suspended member from enjoying the rights, powers and privileges conferred upon members of the house. The nagging question now is what will be the fate of the member and the constituents in a democratic system like ours.

It is against this backdrop that this piece intends to examine the relevant laws on the matter and figure out the stance of Nigerian Law on the Legality or Illegality of the said suspension.

SUSPENSION ILLEGAL OR LEGAL:

In delving into the heart of the matter, it is worthy to underscore the fact that the House of Assembly is an entity established by the Constitution of the Federal Republic of Nigeria 1999 (as amended), section 90 of the constitution specifically provides:

“There shall be House of Assembly for each of the state of the federation”.

The constitution further enunciates the number of members the State House of Assembly shall have; it even provides the minimum and maximum threshold of 24 and 40 members respectively under section 91 CFRN 1999.

It is therefore in line with the above that, the constitution vested the power in the House of Assembly to adopt rules that will govern the house proceedings and which shall bind every member in the House. Section 101 CFRN 1999 provides:

“Subject to the provision of this constitution, a House of Assembly shall have power to regulate its own procedure, including the procedure for summoning or recess of the House”.

The above referred section is the proviso that empowers the House of Assembly to enact STANDING ORDERS (rules governing the house) in order to conduct hitch-free proceedings by regulating the conduct of its members.

Hence, one need to know that both Kano and Lagos states Houses of Assembly in justifying the position taken by them have cited Order IV (4) (a) (b) (d) (e)  and Order 10 (6) (8) respectively of their Standing Orders as the basis for the suspension.

However, the key phrase to look out for in section 101 CFRN 1999 cited above is Subject to the provision of this Constitution. This undisputedly suggests that, the Standing Orders of the House of Assembly must conform with the constitution, else the inconsistent rule shall to the extent of its inconsistency be void. Section 1 (3) CFRN 1991 is instructive. The court have reiterated the weighty nature of constitutional supremacy in the case of OBASANJO v YUSUF (2004) 9 NWLR (PT 877) 144 @183. The question that needs to be addressed now is;

ARE THE STANDING ORDERS IN RESPECT OF SUSPENSION INCONSISTENT WITH THE 1999 CONSTITUTION?

In response to the above poser, one need to know that the CFRN 1999 mandates that each constituency established by the Independent National Electoral Commission (INEC) in line with the dictates of the provisions of sections 112-115 CFRN 1999 must have one member representing each constituency in the House of Assembly. Section 117 CFRN 1999 provides thus:

“Subject to the provisions of this constitution, every State constituency established in accordance with the provisions of this Part of this Chapter shall return one member who shall be directly elected to the House of Assembly in such manner as may be prescribed by an Act of the National Assembly”.

By way of adumbration, the writer posits that the usage of the word “SHALL” in the above section connotes an obligation and not discretion. In order to lend credence to the above submission, the decision of the court in the case KATTO v CBN (1991) 9 NWLR (pt 214) 126 at 147 had to be resorted to, the court says:

“Generally the term “SHALL” is a word of command and denotes obligation and give no room to discretion, it imposes duty”

See also the case of ALHAJI OLOYEDE ISHOLA v MEMUDE ADIBODE (1994) 6 NWLR (Pt 356) 506.

Therefore, it is evident that the import of the constitution is that each constituency must have a member representing them in the House of Assembly, for a period of (4) four years.  The provision of section 105 CFRN 1999 fixes a four -year tenure for the members in the House. Hence, any attempt to shorten or curtail the period will amount to a tyranny upon the sacred mandate given to the member by his people to represent them in line with the constitution.

CONSTITUTIONAL CONTEMPLATION:

The constitution of Nigeria did not contemplate suspension of a member of a House, rather it only contemplates Recall; a process through which a member may be removed through petition by his people to the INEC. Section 110 CFRN 1999 had extensively dealt with the procedure.

It will be apt to say that failure to contemplate the suspension by the constitution is an indication of its unconstitutionality. To substantiate this argument, the aid of the Latin maxim which says: EXPRESSIO UNIUS EXCLUSIO ULTERIUS can be invoked. The maxim means; “express mention of one or more things of a particular class may be regarded as silently excluding all other members of the class”. See A.G ABIA V A.G FEDERATION (2003) ALL FWLR (Pt 275) 414.  It is therefore the submission of the writer that, Recall and Suspension are things of same class. Hence, the exclusion of suspension in the constitution points its unconstitutionality out.

Moreover, suspension of a member will be an outright violation of the guaranteed rights of the member and the people he is representing. Article 13 of the African Charter on Human and People’s Right (Ratification and Enforcement) Act provides:

“Every citizen shall have the right to participate freely in the government of his country either directly or through freely chosen representative in accordance with the provisions of the law”.

Therefore, any attempt to thwart or frustrate that freedom will be like a robbery of the sacrosanct freedom enshrined and guaranteed by the law.

THE SPEAKER BAUCHI STATE HOUSE OF ASSEMBLY v HON. RIFKATU SAMSON DANNA (2017) 49 W.R.N

This cited case is the locus classicus decided by the Court of Appeal on the issue of suspension of a member of a House of Assembly. Briefly, the fact of the case was that a member of was indefinitely suspended. She filed an action the High Court of Bauchi State challenging the resolution of the House. Judgment was entered in her favor, the House appealed and the Court of Appeal reaffirmed the decision of the High Court.

The court of Appeal states that the law maker, not being an employee of the House can neither be suspended nor withheld of his entitlements i.e salary and other allowances. The court while making decision on the provision of section 111 CFRN 1999 states:

“The fixing of salaries and wages of the respondent lies within the province of the Revenue Mobilization Allocation and Fiscal Commission under section 111 of the constitution, certainly not the 1^st and 2^nd appellants. The 1^st and 2^nd appellants have no right to interfere with the salaries and allowances of the respondent serving as a member of Bauchi State House of Assembly. No Rules or Standing Order of Bauchi State House of Assembly can derogate these rights and privileges conferred on an elected member of the House of Assembly…”

Finally, the court further had this to say about the illegality of the suspension:

“Any member of the Bagoro constituency could have timeously challenged the indefinite suspension of their choice representative in the Bauchi State House of Assembly on the grounds that their accrued rights had been violated or breached by the appellants. The conduct of the appellants is the tyranny of the majority against an elected minority of the Bauchi State House of Assembly”.

CONCLUSION:

The idea behind democracy is for people to govern themselves directly or through privies. Owing to that it will be against the foundation of the system to suspend or deny a particular group of people from enjoying this right of participation in the governance of their country or state.

The above piece had succeeded in effectively analyzing the position of the Nigerian law on the issue of suspension of a legislative member; it is now crystal clear that the suspension is not known to our laws and therefore, illegal and unconstitutional.

Abdurrahman Nasir Salis Esq, abdurrahman00800@gmail.com