Rivers Crisis: Tinubu’s Intervention Breach Of Constitution – SANs
The intervention of President Bola Tinubu in the crisis between Governor Sim Fubara of Rivers State and FCT Minister, Nyesom Wike has generated ripples with some Senior Advocates of Nigeria (SANs), including a human rights lawyer, Femi Falana, expressing concern that the truce brokered by the president might have breached the provisions of the 1999 Constitution of Nigeria.
In an eight-point peace agreement brokered between Governor Simi Fubara and his predecessor, Nyesom Wike in Abuja on Monday, the parties had reportedly agreed, among other things, to withdraw all the pending court cases immediately and also drop the impeachment notice on Fubara while the leadership of Martin Amaewhule (a Wike loyalist) and the remuneration for assembly members and staff to be reinstated.
By implication, the return of Amaewhule as speaker of the state house of assembly means the incumbent speaker, Ehie O. Edison, who is loyal to Fubara and had the backing of the court, will step aside.
It was Edison, who declared vacant the seats of 27 lawmakers that defected to the All Progressives Congress (APC) from the Peoples Democratic Party (PDP).
At the meeting with President Tinubu, the contending parties also agreed that the names of all commissioners in the Rivers State Executive Council who resigned their appointments because of the political crisis be resubmitted to the House of Assembly for approval.
But despite its state chairman being a signatory to the agreement, the national leadership of the PDP, on Tuesday rejected the truce and insisted that the Independent National Electoral Commission (INEC) conduct fresh polls for the 27 state assembly seats already declared vacant after the defection of the lawmakers from the party to the All Progressives Congress (APC).
‘Tinubu has no constitutional role in Rivers crisis’
Falana said President Tinubu had no constitutional role in the Rivers State crisis and so his intervention was advisory.
“I agree with former Governor Tunde Fashola SAN, who has said that President Tinubu has no constitutional role to resolve the political crisis in Ondo and Rivers States. Therefore, the intervention of the president in both cases is purely advisory,” he said.
Falana said the presidential reinstatement of the 27 cross carpeting lawmakers is alien to the constitution in every material particular.
“In the case of Abegunde v Labour Party (2015) LPELR 24588 (SC), the Supreme Court held that a legislator who abandoned the political party that sponsored him and decamped to another political party has automatically lost a seat in the parliament.
“However, the cross carpeting legislator can only retain his seat if he can prove that the political party that sponsored him is divided into two or more factions,” he said.
“It is also necessary to point out that until a by-election is conducted by INEC to fill the 27 vacant seats, the remaining members of the House are competent to conduct legislative business except the impeachment of the governor , which can only be carried out by the two thirds of the entire members of the House of Assembly,” he added.
Similarly, Dayo Akinlaja (SAN) said the agreement was not proper for democracy in the country because it attempts to replace constitutionality with political compromise.
“I think the matter is beyond political settlement. Once the speaker has made the pronouncement that the seats of the lawmakers were vacant, I think it is not amenable to political compromise,” he said.
An associate professor of Public Law from the Rivers State University, Richard Wokocha, said what might make the crisis linger was the legal implication of the actions that had been taken before the truce was brokered.
He said if the national leadership of the PDP was not involved in the truce, the issue they had commenced (request for conduct of fresh polls) is a constitutional issue that cannot just be waved away.
“Between the parties that have agreed, they cannot proceed (with legal process) but third parties who have acquired interest or who have been affected by acts and actions that took place during the crisis will reserve the constitutional rights to continue with their struggles,” he said in an interview with Channels TV.
He also said the agreement between the parties does not supersede existing legal situations, adding that “That of re-presenting the budget may raise a legal issue because they may have started implementing the budget and that is a legal issue. Recognising the members who have taken actions, which in the constitution amounts to resignation from the house, will also raise constitutional issues.”
Impasse more political than legal – Yadudu
But a renowned constitutional lawyer, Professor Auwalu Yadudu, said the whole issue was more political than legal.
“It is within the realm and competence of a third party to mediate political disputes. As for the court cases, nothing prevents parties to an ongoing dispute to report an out-of-court settlement for the court to endorse at its next resumed sitting,” he said.
PDP insists on fresh elections
Addressing a press conference at the party headquarters in Abuja, the acting national chairman of the PDP, Umar Damagum, asked the “former lawmakers” not to be deceived by those in Abuja, insisting that they had willingly vacated their seats.
Damagum noted that the right thing for the 27 lawmakers, who defected to the APC, to do was to prepare for fresh elections under any political party they want as the PDP had already written to the Independent National Electoral Commission (INEC) to prepare for fresh polls in their constituencies.
The acting chairman, flanked by other members of the National Working Committee (NWC) said, “That INEC should, in line with Section 109 (1) (g) of the 1999 Constitution (as amended) and Section 84 (15) of the Electoral Act, 2022, fix a date for the conduct of fresh election into the state constituencies in Rivers State where vacancies have occurred by reason of the defection of the now former members of the Rivers State House of Assembly, pending the determination of any suit in any court.”
He said: “Our party insists that having now vacated and lost their seats, the only option available for the former lawmakers, if they wish to return to the House of Assembly, is to seek fresh nomination and re-election on the platform of any political party of their choice in line with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2022.
“For the avoidance of doubt, there is no division in the PDP at the national or any other level for that matter to justify the defection of the 27 former members of the Rivers State House of Assembly from the Party. They, therefore, vacated their seats for reasons best known to them and cannot return to the House of Assembly without passing through a fresh electoral process in accordance with the provisions of the 1999 Constitution (as amended) and the Electoral Act, 2022.
“Moreover, the Speaker of the Rivers State House of Assembly Rt. Hon (Barr) Ehie O. Edison DSSRS officially declared the seats of the defected now former members vacant in line with Section 109 (1)(g) of the 1999 Constitution (as amended). The Rivers State House of Assembly, having become Functus Officio on the matter, cannot re-admit the former lawmakers unless through the channel of a fresh election.
“Our party, therefore, counsels the former members of the Rivers State House of Assembly not to be deceived by anybody giving them the false hope and impracticable assurances in Abuja that they can return to the Rivers State House of Assembly without a fresh election or that the INEC can be stopped from conducting fresh election into the 27 Rivers State Constituencies where vacancies have occurred by reason of their defection.”
