Rivers and Scorched Earth Governance Model

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Governor Fubara v Rivers State House of Assembly 

What’s that saying about the ground suffering, when two elephants fight? The  ground in this context being Rivers State, her infrastructure, the people of the State, effective governance and development of the State. So much time and resources are being expended on the disagreement between Governor Siminalayi Fubara and the Rivers State House of Assembly (RSHA), that onlookers are wondering whether these arms of government are actually getting any work done. This is detrimental to the State. Their main concern should be the security and welfare of the people of Rivers State, which is the primary purpose of government – see Section 14(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution).

People are appalled, horrified really, by the arbitrary demolition of the Complex that housed the Rivers State House of Assembly (RSHA), built with State funds and tax payers’ money. What procedure was adopted, before the building was demolished? Was the procedure made public? Where is the assessment from the agencies and bodies empowered so to do, to decide that a public building constructed barely 20 years ago is no longer structurally sound, and required total demolition, not even partial renovation of the areas that may have been damaged by a fire, which apparently conveniently broke out during the same period when Nigerians heard that there was a plot by the RSHA to impeach the Governor? Was the demolition a political decision, which has no place in civil and structural engineering matters? While I prefer to stick to facts and evidence, we cannot ignore the fact that in Nigeria, it is not an entirely unknown phenomenon for public buildings to be set ablaze for suspicious reasons.

If it is the latter, this kind of bizarre, wasteful, destructive and out-of-control behaviour by those in authority must not be allowed to thrive in Nigeria, because the last time I checked we were in an ostensibly democratic dispensation, and not a military dictatorship. It appears that many Governors have turned themselves into tin gods and military generals, and have placed .themselves above the Constitution because of the immunity from suit and legal process they enjoy under Section 308 of the Constitution. 

Legislators’ Defection: Vacant Seats or Not? 

Being the provision that has been incessantly cited as the basis for insisting that the seats of the 27 Rivers Legislators who defected from PDP to APC are now vacant, I’m sure that if Section 109(1)(g) of the Constitution and its Proviso had ears, they would be buzzing, since they must now be permanently ingrained in the minds of many, particularly either of the two conditions that must be fulfilled for a State Legislator to be able to successfully defect from the Party on whose platform they were sponsored and elected into office, to another party, before their tenure is over, failing which such defecting Legislator shall vacate their seat: 1) that there’s a division in the previous political party; or 2) that there’s a merger of two or more political parties or factions by one of which the Legislator was previously sponsored. See the case of Abegunde v Ondo State House of Assembly & Ors (2015) LPELR-24588(SC). 

Section 109(1)(g) of the Constitution is not self-executory. It is obvious that the Constitution doesn’t contemplate a situation where Nigerians can sit at home, debate the defection of Legislators and decide whether their seats have automatically become vacant or not, or that the Executive would be the one to decide whether the reasons provided for a defection fall within the scope of the aforementioned constitutional exceptions that will not necessitate the vacation of a seat, if a Legislator defects. On the contrary, the Constitution envisages an issue for determination arising from such defection, because by virtue of its Section 272(3), it provides that the Federal High Court (FHC) has jurisdiction to hear and determine inter alia, the question as to whether the seat of a House of Assembly member has become vacant. For one, it appears that the courts must decide what amounts to ‘fractionalisation, fragmentation, splintering or division’ in the various cases of Legislators’ defection, as one size does not necessarily fit all – see Abegunde v Ondo State House of Assembly & Ors (Supra). Also see the case of INEC v DPP & Anor (2014) LPELR-22809(CA) per Helen Moronkeji Ogunwumiju, JCA (as she then was); INEC v DPP & Anor (2015) LPELR-24900(CA) per Ugochukwu Anthony Ogakwu, JCA. 

As Lawyers, it is obvious that because Section 109(1)(g) of the Constitution is not self-executory, by virtue of Section 272(3) thereof, it is the FHC that decides on the question as to the whether either of the two conditions in the said Proviso of Section 109(1)(g) has been fulfilled or not; and, until then, the seats cannot be declared vacant on the say-so of PDP or Governor Fubara, the people of Rivers State, or you and I. It is a misconception that the defection of a Legislator to another Party during their tenure, automatically translates to their seat becoming vacant. There is a constitutionally laid down procedure, for the process to declaring a seat vacant, because everyone has a different story as to why they defected from their previous Party, and it’s for the court to decide if the story is cogent or not. Consequently, the case must go through the proper channel, from the FHC to the Court of Appeal, and finally, the Supreme Court, if the parties go on appeal. In INEC v DPP & Anor (2014) (Supra), the Court of Appeal held inter alia that, it is only the Federal High Court that can determine the question as to whether the seat of a House of Assembly has become vacant. Also see the case of Ofobruku v DPP & Anor (2015) LPELR-24899(CA) per Ugochukwu Anthony Ogakwu, JCA. 

Abuse of Court Process

Governor Fubara’s ‘three-man House of Assembly’, going to the Rivers State High Court (RSHC) last week to obtain an ex-parte order that the House of Assembly members who defected to APC shouldn’t parade themselves as Legislators, is an abuse of the court process. There is an interim order dated 15/12/23 made by the FHC, which inter alia, restrains INEC and the RSHA from declaring the seats of the 27 Lawmakers vacant, pending the hearing and determination of the motion of notice. See the case of Ogboru v Uduaghan 2013 13 NWLR Part 1370 Page 33 at 53 per Clara Bata Ogunbiyi, JSC on the definition of abuse of court process. It is the improper use of the judicial process by a party in litigation, aimed on targeting on interference with due administration of justice. The acts of the minority members going to the RSHC to obtain orders, is simply to interfere with the due administration of justice in this matter. The RSHC also cannot sit as an appellate court over the decisions of the FHC, granting orders to counter the judgement of a court of competent jurisdiction in this matter (see Suit No: FHC/ABJ/CS/1613/2023 Rivers State House of Assembly & Anor v NASS & 16 Ors). The proper process, is to file an appeal at the Court of Appeal. But, the now popular unwholesome practice of forum shopping (in this case, of the highest order, I might add), was chosen instead. 

Lawyers who engage in such nefarious activities, should face disciplinary sanctions before the Nigerian Bar Association. Knowingly filing a multiplicity of actions when they can be consolidated with the action touching on the same subject-matter that was instituted first in time, if such matter was properly brought before a court of competent jurisdiction; knowingly filing matters before courts that obviously lack jurisdiction to hear and determine matters, but will flout the law to give favourable decisions – both constitute  abuses of court process. The actions of the Counsel to the minority Rivers Legislators fits like a glove into these two types of abuses, because the Constitution clearly provides in this case that such matters concerning the vacation of House of Assembly seats must be brought before the FHC and not the State High Court as they have done; and, the matter was already before the FHC before they started running to the RSHC continuously to secure all sorts of orders to override that of the FHC. 

Similarly, Judges that grant ex-parte motions recklessly, issuing interim orders in matters they shouldn’t, knowing fully well that their courts have no jurisdiction to hear and determine them, or that they are an abuse of court process in one way or the other, and they proceed to breach their oath of office to resolve disputes judicially and judiciously by instead, handing down decisions that are bound to cause more harm and confusion than resolution, should also face disciplinary sanctions from the National Judicial Council (NJC). 

It is time to start injecting some sanity into our legal system, where it is required. If Counsel and Judicial Officers who engage in abuse of court process are sanctioned immediately, it will serve as a deterrent to others who have no regard for the rule of law and prefer to make a mockery of it instead.

Governor Fubara: A Meddlesome Interloper

It is crystal clear that, in this particular circumstance, Governor Fubara appears to  be a meddlesome interloper, poke-nosing in how a separate arm of government, the Legislature, should be run, thereby arrogating unto himself powers which he doesn’t have, seeing as the Constitution doesn’t donate any such authority to a Governor concerning a State Legislature. Unfortunately, he’s certainly not alone in this type of autocratic behaviour, as many Governors have turned themselves into overlords, lording it over their State Legislatures and Judiciaries. Their words are law, in their States.

Concluding that the House of Assembly members who defected from PDP to APC have automatically vacated their seats, is not the place of Governor Fubara or any other person or agency  to decide, but a question for the FHC to determine – so says the Constitution. And, trying to run the State with a three member Legislature is not only ridiculous, but unconstitutional. Section 91 of the Constitution provides that a House of Assembly of a State shall have not less than 24 and not more than 40 members. RSHA has 32 members, one deceased, leaving 31. By virtue of Section 96(1) of the Constitution, a quorum of a House of Assembly must not be less than eight or more than 13.33 members (to the nearest whole number would be 13), that is, one-third of all the members. RSHA’s quorum is 11 members, not three. 

Nowhere in the Constitution is there a provision donating power to a Governor to determine where the Legislature should sit to conduct its affairs. Governor Fubara or any other Governor cannot command their State Legislators to hold their sittings in Government House; he doesn’t have such powers. Moreover, according to the principle of separation of powers, the three arms of government are meant to act as checks and balances on each other, not that the other two should be appendages of the Executive – see Sections 4,5 & 6 of the Constitution. 

Conclusion 

Be that as it may, this is one of those cases that requires expeditious hearing up to the final arbiter, as it concerns the seats in an elective office that is tenured, and unnecessary delay may end up turning litigation in this matter into an academic exercise, if the final decision of the courts is not handed down timeously. It is also affecting effective governance, in Rivers State, because by virtue of the provisions of the Constitution, any law purported to be enacted by a three member House of Assembly, be it the budget appropriation law or any other law, or any action, for instance, screening of nominees for official positions which require a quorum, would be null and void and of no effect, if they emanate from an improperly constituted House that did not form a quorum to pass the Bill into law or conduct the screening. 

Sometimes, I wonder why Nigerians are expected to be law abiding, when our public officials in the highest positions of authority can be quite lawless! As Pentecostal Christians like to say, anointing flows from the head; what appears to be flowing down from this Rivers State imbroglio that I described above, is a blatant disrespect and disregard for the rule of law on the part of the Governor and the minority House Members. Thank God for people like Donald Trump and Benjamin Netanyahu! Of, course, I say that scornfully, with tongue in cheek. At least, we can point to those two, when first world countries condescendingly allege that some African so-called leaders or senior public officials are lawless, since they appear to be no better!