By Femi Falana SAN
Whilst the President of the Republic may intervene in the crises rocking the states, his intervention must always be grounded in the provisions of the Constitution. 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.
With respect, the presidential reinstatement of the 27 cross carpeting members of the Rivers State House of Assembly by the Presidency is alien to the Constitution in every material particular. The seats of the cross carpeting members have been declared vacant by the Speaker known to law. To that extent, the Independent National Electoral Commission is mandatorily required to conduct the by-election once the ex parte order issued by the Federal High Court last Friday is quashed.
In the case of Abegunde v Labour Party (2015) LPELR 24588 (SC) the Supreme held that a legislator who abandoned the political party that sponsored him and decamped to another political party has automatically lost 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. The 27 members of the Rivers State House of Assembly who decamped from the PDP to APC have lost their seats because the PDP that sponsored them is not fictionalised or divided as stipulated by the Constitution.
Even if all the cases in the Rivers State High Court and the Federal High Court are withdrawn in line with the advice of the President , it is submitted that all actions taken by the Speaker recognised by the Rivers State High Court, remain valid, including his pronouncement on the vacant seats of the 27 cross carpeting members of the House. In other words, only a court of law is constitutionally competent to set aside the pronouncement of the Speaker which is anchored on section 109 of the Constitution. Furthermore, as the Speaker has not been removed by the required number of legislators, a presidential directive cannot remove him.
It is also necessary to point out that until a by-election is conducted by the Independent National Electoral Commission 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. In Diapolong v Joshua Dariye (2007) 27 WRN 1, (the Supreme Court per Tobi JSC) held:
“It is my view that until the vacancies created by the carpet crossing members are filled by the process of by-election, the Plateau State House of Assembly can only transact such legislative duties that require the participation of less than 2/3 majority of ALL the members of that House, which duties definitely excludes impeachment proceedings.”
In view of the foregoing, the President and all the parties involved in finding political solutions to the crisis in Rivers State are advised to turn to the Constitution for guidance without any further delay.
Dear readers, we really need your support to keep on serving you with authoritative, truthful, and juicy stories everyday. For your support, please reach out to the editor @gavelinternational66@gmail.com