By Awa Kalu, SAN

The worrisome developments in the Ogun State House of Assembly have sent shivers of discomfort down the spines of all those who have interest in deepening democracy in our dear country moreso, having regard to the fact that this is the year of our jubilee!

Only a few years ago, the penchant and inclination of several States Houses of Assembly to remove unlawfully, not only their principal officers but Governors and Deputy Governors alike, compelled the Ikemba Nnewi, Chief Chukwuemeka Odumegwu Ojukwu, in exasperation, to describe members of a particular House of Assembly (Anambra State) as rascals.

A rascal according to the New Lexicon Dictionary of the English Language is an “endearingly mischievous person”. But not ready to be undone by such harsh criticism, the House members claimed that they were only discharging their constitutional responsibilities. The question that has arisen from such recent events is whether our impeachment-hungry legislators do understand their responsibility to those who elected them or to the survival of our tottering nation?
Another question which is also considered worrisome indeed, is whether many of such persons who seek to ignore constitutional provisions really understand that the constitution is not just a charter of government but has legal consequences? The conclusion that the constitution as a charter of government is different from its character as law is now taken to be beyond dispute.

As Professor Ben Nwabueze has emphasized in several books dealing with constitutionalism, “A constitution is a mode of organizing a state and its government. It is, in other words, a body of fundamental principles according to which a state is organized. This emphasizes its character as essentially a political act; its authority and sanction are primarily political. This was its original meaning and function. Even today this approach to the purpose and function of a constitution still has its adherents.

There are many countries in the world, perhaps a majority, that still consider the appropriate function of a constitution to be that of a political charter of government, consisting largely of declarations of objectives or directive principles of government and a description of the organs of government in terms that import no enforceable legal restraints”.
Certainly, recent trends which clearly indicate the willingness of operators of the constitution to ignore its clear provisions, confirms the fear that the constitution may afterall, compel no solemnity in those who choose to avoid the duties and obligations created therein. It has been argued that a constitution which is nothing but a political charter “has no more than a political existence; its provisions are political, not legal, serving merely to exhort, to direct and inspire governmental action, and to better upon them the stamp of legitimacy”.

However, it must be said loud and clear that the Nigerian Constitution, for the avoidance of doubt, is not only a political charter, but a law giving document. This is so for several reasons. In the first place, the constitution in its very first section declares itself supreme and “its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”.

In addition, in section 1(2) thereof, the constitution provides that “The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this constitution”. The last subsection of section 1 is rather emphatic.

It provides that “if any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void”. These are very weighty provisions. So, as has been argued with great force, “the idea of a constitution as a formal document having the force of law, by which a society organizes a government for itself, defines and limits its power, and prescribes the relations of its various organs inter-se and with the citizen” acquired a new, stirring dimension with the establishment of the U.S Constitution in 1787. It is also said that ‘The U.S Constitution’, “reads like law, its language is the spare legal language of command and prohibition, indistinguishable at most points in texture and tone from the language of ordinary statute law, it neither argues nor exhorts, but lays down as law lays down, what is to be”.

Surely, the Nigerian Constitution lays down what is to be. For this reason, the constitution has been dubbed our grundnorm, the ‘fons et origo’ and ‘the anchor of all laws’. Karibi-Whyte, JCA, as he then was, goes farther and emphasizes that “The Constitution is therefore not only the charter of government, but is also the anchor and ultimate refuge of the citizen” and that “No rights or duties can be enjoyed or enforced except insofar as the constitution allows…” (see Alhaji Abdulkardir Balarabe Musa Vs Auta Hamza (1982) 3 NCLR 229). I
f this is so, why then are our elected representatives in different Houses of Assembly behaving as if they are Law Givers of old? That is, ‘The King who must be obeyed’.

All followers of the recent developments in the Ogun State House of Assembly will be hard pressed to concur with Chief Odumegwu Ojukwu in his characterization of certain legislators as rascals. Let the story begin with the news headline
(The Guardian, vol. 28, No. 11,577, Tuesday , September 7, 2010) ‘Fresh Crisis in Ogun, nine lawmakers oust Speaker, 14 others’. As narrated by the Guardian, ‘Nine members of the Ogun State House of Assembly yesterday gave the country another dose of the peculiarly Nigeria politics as they impeached the Speaker, Mr. Tunji Egbetokun and 14 other lawmakers.

The lawmakers allegedly named Soyemi Coker as the new Speaker. Those who carried out the suspension were said to have used the Mace of the Abeokuta South Local Council as they did not have access to the one in the State Assembly. The indefinite suspension of Egbetokun and his loyalists, carried out hurriedly in the early hours of yesterday, added another dimension to the worrisome political crisis, which before now was between the Legislature and the Executive arms of government.’ The controversy in the Ogun State House of Assembly has not abated but is still festering like a sore.

The Daily Sun (vol. 6, No. 1870, Wednesday, September 15, 2010) screams very loudly: ‘Ogun: State of emergency looms – Stakeholders lobby Jonathan – Assembly faction passes vote of no confidence on Gov’. the accompanying story is stranger than fiction and according to the Daily Sun, ‘In what appeared like a counter-coup, the “suspended” members of the Ogun State House of Assembly led by Hon. Tunji Egbetokun yesterday held a “plenary” outside Abeokuta, the State capital and the seat of the Assembly.

The group led by Egbetokun was said to have held the plenary at Terelu-Imodi in Ijebu East Local Government Area of the State at about mid-day and passed a vote of no confidence on the state governor, Otunba Gbenga Daniel.

According to them, they were passing the no-confidence vote on Daniel because of his alleged aiding and abetting of illegality in the state and for mismanaging public funds and for allegedly sponsoring violence and violent gangs in the state and for not complying with the state laws and the constitution of the Federal Republic of Nigeria.’

Embedded in the Guardian story and the aftermath as narrated by the Daily Sun are obvious infractions of legislative procedure and the desecration of settled constitutional principles. These will be examined in greater detail in due course

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