By Rotimi Ogunleye

The work of a legal draftsman is onerous. He has to anticipate diverse scenario and individual or collective idiosyncrasies and make provisions for them in the legal instrument being drafted. According to the Black’s Law Dictionary (Eight Edition), the “draftsman” (also referred to as drafter) is that person who draws or frames a legal document such as a will, contract or legislative bill and that “drafting” is the practice, technique or skill involved in preparing legal documents such as statutes, rules, regulations, contract and will that set forth the rights, duties liabilities and entitlements of person and legal entities. A draftsman therefore uses appropriate words and collocation of words to construct or frame a statute and other legal instruments to meet the intendment of the instrument.

Rivers State exemplifies how the best draftsman’s intentions could be thwarted in this clime. Out of a 32-member House of Assembly, one member died shortly after election in 2023, leaving 31 members since then. By paragraph F(15)(a) in the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria as amended (hereinafter called the Constitution) Part 1, the Independent National Electoral Commission (INEC) is empowered to organise, undertake and supervise all elections into the offices of the President and Vice-President, the Governor and Deputy Governor of a State and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation. Section 2 of the Electoral Act 2022 amplifies the constitutional provision on INEC’s functions. Strangely, INEC has not conducted by-election for the vacant seat of the deceased member to date. Twenty seven out of the 31 remaining members elected Hon. Martins Amaewhule as its Speaker while the remaining four members elected Hon. Edison Ehie. The Amaewhule – led 27 members are covered by section 91 which provides that a House of Assembly of a State shall consist of not less than 24 members and not more than 40 members, section 96 (1) of the Constitution which provides that the quorum of a House of Assembly shall be one-third of all the members of the House and Diaplong v. Dariye (2007) 8 N.W.L.R. part 1036 page 332 at page 448 paragraphs G and H ratio 25 It is therefore an affront to both sections 91 and 96 of the Constitution and case law for the four-member House of Assembly led by Ehie to have cloaked itself with the garb of a legislature. Ehie’s 13th day of December 2003 declaration of the seats of the Amaewhule team vacant cannot stand judicial scrutiny.

Both parties made things worse thereafter. The 27 members including Amaewhule announced their defection to the All Progressive Congress (APC) on the 11th day of December 2023 citing division with the Peoples Democratic Party (PDP) that sponsored them. By section 109(1)(g) of the Constitution, the 27 members shall vacate their seats upon the defections Diaplong v. Dariye (2007) supra at page 435 paragraphs G and H ratio 26. It does not avail them to cite division in their party based on the proviso in section 109(1)(g) because as the Supreme Court held in Abegunde v. Ondo State (2015) 8 N.W.L.R. part 1461 page 314 at page 375 paragraph G to page 376 paragraph E ratio 1 the division in the party that is in tandem with the intendment of the Constitution must be such that affects the part’s entire structure at the centre or nationally. Where, as it is in the Rivers case, the members including the Speaker fail to vacate their seats as required by the Constitution, it is an affront to the Constitution,

In such a situation, it behooves the court to ensure accelerated hearing of the suit brought before it to invoke the constitutional provision of declaring vacant the seats of the affected legislators. The four-man House of Assembly also got depleted when Ehie resigned on the 31st day of December 2023 and was appointed the Chief of Staff to the Governor while Victor Oko-Jumbo was purportedly elected Speaker of the remnant structure. In the absence of judicial pronouncement on the status of Amaewhule and his colleagues, the unilateral decision of Governor Siminalayi Fubara to operate with an improperly constituted House of Assembly is an affront to the Constitution which paved the way for the orchestrated Proclamation of a State of Emergency under section 305 of the Constitution. Section 305(3) provides that:

The President shall have power to issue a State of Emergency only when –

the Federation is at war;

the Federation is in imminent danger of invasion or involvement in a state of war;

there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;

there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;

there is any other public danger which clearly constitutes a threat to the existence of the Federation; or

the President receives a request to do so in accordance with the provisions of subsection (4) of this section.

The use of “only” in section 305(3) before itemising the instances or conditions for the Proclamation numbered (a) to (g) is instructive. Longman Dictionary of Contemporary English 6th Edition states that “only” means:

not more than a particular number, age etc;

nothing or no one except a particular person or thing;

to say that something happens or is possible in one particular situation or place and no other or for one particular reason;

Therefore the word “only’ in the provision indicates particularity or specificity within the context of section 305(3) of the Constitution. The suspension of the democratic structures in Rivers State and the appointment of a sole administrator is contrary to section 305(3) of the Constitution. I have heard some commentators rely on sections 5(1)(3) of the Constitution to justify the action. I humbly submit that such stance would be overstretching the Constitution beyond its intendment. Moreover, the appointment of a sole administrator Retired Admiral Ibok-Ete Ibas and the latter’s consequential action of appointing administrators into the 23 local government councils of the State contrary to the principle of delegatus non potest delegare is faulty see Attorney General of Bendel State v. Attorney General of the Federation (1981) 10 SC page 1. By virtue of section 7 and the Supreme Court’s decision in Attorney General of the Federation v. Attorney General of Abia State (2024) 7 SC (Part 1) page 1 at page 38 it is an affront to the Constitution for anybody to appoint administrators, caretakers or any other entity that is not democratically elected to administer Local Government Councils in Nigeria. In Obi v. Independent Electoral Commission (INEC) (2023) 19 N.W.L.R. part 1917 page 1 at page 278 paragraph C to page 282 paragraph E ratio 37 the Court of Appeal enumerated the following guiding principles in interpreting the Constitution:

In interpreting the Constitution, mere technical rules of interpretation of statutes should be avoided so as not to defeat the principles of government enshrined therein. Hence a broader interpretation should be preferred, unless there is something in the text or in the rest of the Constitution to indicate that a narrower interpretation will best carry out the objects and purpose of the Constitution;

All sections of the Constitution are to be construed together and not in isolation;

Where the words are clear and unambiguous, a literal interpretation will be applied, thus according the words their plain and grammatical meaning;

Where there is an ambiguity in any section, a holistic interpretation would be resorted to in order to arrive at the intention of its framers;

Since the draftsperson is not known to be extravagant with words or provisions, every section should be construed in such a manner as not to render other sections redundant or superfluous;

If the words are ambiguous, the law maker’s intention must be sought: first, in the Constitution itself, then in other legislations and contemporary circumstances and by resort to the mischief rule;

The proper approach to the construction of the Constitution should be one of liberalism and it is improper to construe any of the provisions of the Constitution as to defeat the obvious ends which the Constitution was designed to achieve;

Where the intention of the lawmaker is clear, precise and unequivocal, a purposive rule of interpretation will not be resorted to;

The principles upon which the Constitution was established, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.

In Dapianlong v. Dariye supra at page 441 paragraph F to page 415 paragraph G ratio 22 the Supreme Court held that where the Constitution or statute contains general and specific provisions in respect of a matter, the specific provision will prevail over the general provision. The provision of section 305(3) should therefore be deemed to be specifically provided to create a special situation that cannot be equated to any general scenario elsewhere see Obi v. Independent Electoral Commission supra at page 206 paragraph D to page 207 paragraph B ratio 38. Section 305(6)(b) is another limitation on the President’s power on Proclamation of a State of Emergency. It provides that within two days when the National Assembly is in session or within 10 days when it is not in session, after its publication, there is no resolution supported by two thirds majority of all members of each House of the National Assembly approving the Proclamation, it shall cease to have effect. Was this constitutional requirement adhered to? In National Assembly v. The President of the Federal Republic of Nigeria (2003) 9 N.W.L.R. part 824 page 104 the court held that two-thirds means at least 73 members in the 109-member Senate and at least 240 members in the 360-member House of Representatives. The amorphous “ayes” adopted by each of the units of the bicameral legislature can be constitutionally faulted because there was no head count, recording and counting of each member’s vote to determine whether the required number was obtained in each House. In the developed democracies, the calculation would be visible to the whole world.

Therefore, section 305 should be sparingly applied. It should not become the sword of Damocles dangling above the heads of Governors waiting to be lowered. The Nigerian concept of federalism has been held by the court to be peculiar to it due to the uterine link between the Constitution and the military Attorney General of Abia v. Attorney General of the Federation (2022) 16 N.W.L.R. part 1856 page 205 at page 469 paragraph C and D ratio 63.The multiple affronts to the Constitution were midwifed and birthed by narrow pursuits of personal expediency and interests at the expense of the common good, democratic ethos and adherence to the rule of law. The draftsmen of the Constitution could not have envisioned the extent to which puppeteering has been elevated to the detriment of constitutional duties and obligations.

Rotimi Ogunleye is a Lagos based legal practitioner, notary public and arbitrator.  

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