Former NBA National General Secretary, Afam Osigwe, Offers Legal Advice To Edo State Governor

Former NBA National General Secretary, Afam Osigwe, Offers Legal Advice To Edo State Governor

Former National Bar Association (NBA), National General Secretary, Afam Osigwe has in a press release, referred to as ‘’Unconstitutional’’ the directive from the House of Representatives members to the Nigerian security agencies, asking them to shut down Edo state House of Assembly.

Recall that anaedoonline.ng reported the threat from the house of reps to take over the functions of the Edo State house of assembly if the Governor of Edo state and the Lawmakers fail to meet three conditions, the Federal Lawmakers went ahead to ask the Inspector General of Police (IGP) , Mohammed Adamu and the Director-General Department of state Security services (SSS) to shut down the house of assembly.

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You may also recall that among the three conditions given to the Edo State state Governor and members of the House of the of Assembly by the Federal Lawmakers , is an instruction that the Governor must issue a proclamation within one week in line with section 105(3) of the constitution of the federal republic of Nigeria 1999 as amended, stating the date, and venue must be published in any National daily and Television station.
Barrister Afam Osigwe in response to the threat from House of representatives members have declared that Issuance of a proclamation by the Governor is at the discretion of the Governor and not a compulsory activity.

Below is the Full Text of the Press Release ;

A Governor Does Not Issue A Proclamation Before The First Sitting Of A House

I’m at a loss whether the House of Reps sought legal advice before resolving to advise and or direct the Governor of Edo State to issue another proclamation. First, the Edo State House of Assembly does not need a Proclamation for its first sitting since the issuance of a Proclamation is not a condition for it to sit. The issuance of a Proclamation by a Governor is discretionary, not mandatory for the sitting.

Secondly, their resolution acknowledges that the House had commenced sitting after a Proclamation issued by the Governor. Having so commenced sitting, the Governor lacks the power to issue another Proclamation so the House can commence sitting afresh.

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On the discretionary nature of a Proclamation by the State Governor, this is what the Supreme Court had to say in BALONWU V. GOV., ANAMBRA STATE 4-12-2009 (2009) 18 NWLR (Pt. 1172) 13, Per MOHAMMED, J.S.C.(P.36, paras. B-

“Starting with the provisions of Section 105 (1) of the Constitution which I had earlier quoted in this judgment, the subsection is quite plain and clear. The section means exactly what it says. That is, a House of Assembly including the Appellants’ House of Assembly, shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House. All that is required in applying the provisions of the subsection, is to ascertain the date of the first sitting of the House in determining its tenure of four years prescribed by the subsection.

In other words, whether or not there had been proclamations for the holding of the first session of the House of Assembly or for its dissolution by a person elected Governor of a State, that House stands dissolved at the expiration of a period of four years commencing from its first sitting. Proclamation for the holding of the first session of the House under Section 105(3), is not a condition precedent to the date of the first sitting of the House under Section 105(1) of the Constitution. It is indeed not true as argued by the Appellants that without proclamation by the Governor under Section 105(3) of the Constitution, the House of Assembly cannot function. The Constitution does not say so.

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It is my considered view that the House of Assembly does not need the proclamation of the Governor before it commences sitting, provided that the members have taken their Oath of Allegiance, Oath of office, and disclosed their assets.

It is to be noted that these Oaths are administered by the Clerk of the House and not by the Governor. If the provision of Section 105 (3) is compulsory and mandatory before a House commences sitting, a Governor faced with hostile House of Assembly where the opposition is in majority may frustrate the sitting of the House. Again, it is my considered opinion that the power conferred on the Governor by virtue of Section 105(3) of the 1999 Constitution is only used when necessary. I completely agreed with the decision of the lower court that this appeal lacks merit.

One couldn’t have said it better. APC needs to deploy political skills to solve the problem in the Edo House of Assembly. The directive that the House be sealed by security agencies is not only unconstitutional but also ultra vires the powers House of Reps.