11th April, 2016
The Attorney General of the Federation, Abubakar Malami, has called on the Inspector General of Police, Solomon Arase, to unseal the Kogi State House of Assembly Complex, which has been under siege over the directive of the National Assembly.
Malami, in a legal opinion letter addressed to Mr. Arase, said a mere legislative misunderstanding between the legislators should not be taken to be a major crisis envisaged by the constitution, which can lead to the action be taken by the National Assembly. He said all legal avenues must be exhausted in an issue involving impeachments, adding that, the National Assembly is to act as an advisory in the matter since the issue does not directly affect the security of the state that may amount to the declaration of a State of Emergency.
The Minister said the legal Opinion is proffered pursuant to the request contained in IG’s letter No.3383/IGP.SEC/ABJ/VOL.40/779 dated 18th March, 2016 in respect of the subject matter.
He further stated that after careful reading of the factual situation envisaged under Section 11(4), which can give rise to a “Take-over” decision by the National Assembly in respect of the affairs of a State House of Assembly reveals that it must be by “reason of the situation prevailing in the State”. This therefore, means that the conditions must go beyond the “situation prevailing within the House of Assembly” itself.
“The Constitution, in my opinion, presumes that the general security situation in the State should have deteriorated to the extent that the House of Assembly finds it difficult or impossible to operate or exercise its normal legislative activities. Section 11(4) is therefore, not meant to address mere issues of disagreement between legislators within the State House of Assembly, since it is recognized that such disagreements or disputes are normal incidences within the democratic governance space. The 1999 Constitution therefore never presumed that every disagreement within a State Legislature would be visited with the sanction of National Assembly legislative oversight.
“It is instructive to note that Section 11(4) is part of the general Section 11 of the Constitution which is titled ‘Public Order and Public Security.’ It must therefore be read within such a context and not merely in relation to the situation within the House of Assembly.”
He added that: “In view of the foregoing, the next question would be: Was there a security situation in Kogi State at the time in question which made it impossible for the State House of Assembly to exercise its legislative functions? From information available to me, it would appear that the answer to the question is “No” as there was no such alarm raised by the relevant security agencies or by the Federal Government itself.
The statement further stated that “Without prejudice to the above issues, it is further necessary to interrogate the legal status of a Resolution of a House of the National Assembly. It is a notorious fact that Parliamentary Resolutions are merely persuasive and not binding in law adding that its lack legal efficacy and cannot become the basis to compel Executive action such as the present directive to the Nigeria Police Force to seal off the House of Assembly.
A close reading of Section 11(4) further suggests that if the National Assembly is expected to ‘make laws’ for the peace, order and good government of a State in crisis, it cannot make such laws on the basis of a Resolution.
It s to me according to the Attorney General that the determination by the National Assembly that the alleged impeachment of the Speaker of the House of Assembly by ‘5 members of the House of Assembly’ was ‘null and void was like usurping the function of the judiciary.
In view of the foregoing, I am of the considered opinion that sufficient legal basis has not been established for the consequent directive to the Inspector-General of Police by the House of Representatives to “Seal the Kogi State House of Assembly Complex until the matter is resolved”.