Call for by-election divides lawyers – TheNigerialawyer

The Edo State House of Assembly has always been in the news
since June 17, 2019 when 11 out of the 24 members- elect were
inaugurated by the clerk, Alhaji Yahaya Ogmogbai, Daily Trust
reports

The Assembly was inaugurated after Governor Godwin Obaseki
issued a proclamation letter to the clerk, amid crisis.

The 24 seats in the House of Assembly were won by the All
Progressives Congress (APC), a feat that has not been achieved in
the state since 1999.

The crisis rocking the APC in Edo State and the state House of
Assembly emanated from the primary election to pick the party’s
candidates for the 2019 general elections, following the supremacy
battle between the national chairman of the party, Comrade Adams
Oshiomhole and his political ‘godson’, Governor Obaseki.

The state party executive, it was gathered, had concluded the
state House of Assembly’s primary election. But the national
leadership of the party cancelled the primary and held a fresh one,
in which the national chairman was alleged to have hand-picked
majority of the Assembly’s members-elect.

After the state Assembly’s election, the supremacy battle
between the ‘godfather’ and ‘godson’ rekindled as the two key
political figures wanted to produce the Speaker.

Oshiomhole wanted a former Speaker and Deputy Speaker, Victor
Edoro while Governor Obaseki preferred Frank Okiye, also from the
same senatorial district with Edoro.

Daily Trust on Sunday learnt that the state executive of the
party met and picked the leadership of the House with Okiye
emerging as the preferred Speaker. After the meeting, 16
members-elect said the decision was not binding on them.

The state party chairman, Aslem Ojezua, said the party
leadership and other stakeholders in the state had a meeting with
members-elect and a decision was taken on the leadership of the
House without any objection.

Ojezua said, “We were surprised when the members-elect later
said they were not in agreement with the decision unanimously
reached during the meeting.”

Thereafter, 16 members-elect, who were dissatisfied with the
development, held a press conference and urged the governor to
issue a proclamation letter for the inauguration of the House,
saying he could not force leaders on them.

Notably, the governor issued a proclamation letter to the clerk
of the House after the members-elect’s briefing and nine
members-elect were inaugurated. Two other lawmakers were
inaugurated few days later, bringing the number to 11.

The 13 members-elect, who had not been inaugurated, described
the swearing in ceremony of the 11 legislators as ‘nocturnal
inauguration.’ They relocated to Abuja and called for a fresh
inauguration of the House.

They approached the National Assembly to intervene by asking the
state governor to issue a fresh proclamation, a request the
governor declined, on the basis that he could not issue two
proclamations for one House. The governor accused the National
Assembly of doing the bidding of the APC national chairman.

Last month, the crisis in the House took a new dimension as the
seats of the 12 members-elect, who had refused to come for
inauguration, were declared vacant by the Speaker, Okiye.

The concerned members-elect, whose seats were declared vacant
were Uhiagbe Dumez (Ovia North-East constituecy I); Vincent Uwadiae
(Ovia North- East constituency II); Washington Osifo (Uhunmwode
constituency); Michael Ohio (Ezomo-Owan West constituency); Victor
Edoro (Esan Central constituency) and Kingsley Ugabi (Etsako East
constituency).

Others are Sunday Aghedo (Ovia South-West constituency); Crosby
Eribo (Egor Ego constituency); Oshamah Ahmed (Etsako Central), Gani
Audu (Etsako West constituency I); Seidu Oshiomhole (Etsako
constituency II) and Chris Okaeben (Oredo West constituency).

The Speaker also declared the seats of two lawmakers vacant –
Uyi Ekhosuehi (Oredo East constituency) and Henry Okaka,
representing Owan East constituency – for abandoning plenary for
six months after the inauguration of the Assembly.

While declaring their seats vacant, the Speaker said the 12
members-elect defiantly refused to process the necessary
documentation as part of the condition for their inauguration while
the others did not meet the mandatory sitting requirement.

Okiye said the House declared their seats vacant in accordance
with Section 109, sub section 1F of the constitution, and urged the
Independent National Electoral Commission (INEC) to conduct a
by-election in the affected constituencies within 90 days.

Meanwhile, the spokesperson of the concerned members-elect,
Osifo, said the House didn’t have the power to declare their seats
vacant.

“Our seats were not occupied because we are challenging them in
court. We have been in court since June and no position was taken
on it. The court forbids any party to the case to do anything on
the matter before it. That is the position of the law. Whatever
step the House took as it relates to declaring our seats vacant is
a nullity, just the same way the inauguration of the House on June
17, 2019 was illegal.

Lawyers disagree

Reacting to the new twist, with regard to the call for a
by-election, a constitutional lawyer, Olayiwola Afolabi said, “If
we are to talk legally, the plan is in the right direction because
there is a judgement by a Federal High Court in Port Harcourt which
declared that the House was properly inaugurated, and no other
superior court has set aside the judgement.”

“Section 108, subsection 1F of the constitution states clearly
that a member of the House of Assembly shall vacate his or her seat
if, without just course, he is absent from meetings of the Assembly
for a period amounting to the aggregate of more than one third of
the total number of days they met in any given year.

“Legally, the Speaker is right because there is a judgement from
the Supreme Court that if a member fails to come to the House for a
certain number of months, the Speaker can declare the seat vacant,
and once there is communication from the Speaker to the INEC, they
can conduct a by-election for the seat. When you take it from the
Port Harcourt Federal High Court, that settled the matter,” he also
said.

He recalled that the embattled members-elect had not even come
to the House for inauguration, let alone sit in the chamber.

“I think what we need to talk about is how to settle the matter
and work for the state. I will advise the lawmakers to come back.
For now, there is no court barring them from coming for
inauguration, and if they come to the House today, the Speaker will
inaugurate them,” he added.

He said the crisis rocking Assembly arose from ego between the
national chairman and Governor Obaseki. He also recalled that when
Chief John Odigie-Oyegun was the national chairman of the APC,
there was no Assembly crisis in the state.

He pleaded with Oshiomhole to cooperate with Obaseki, adding
that he nominated the governor among many other candidates because
he believed in him.

Some lawyers, however, said the action against the embattled
members-elect of the Assembly was determined outside the provisions
of the constitution.

Speaking to Daily Trust on Sunday, the lawyers advised the
affected lawmakers to challenge their case before a court of
law.

E.M.D Umukoro said the procedure stipulated in Section 109 of
the constitution, which listed circumstances that would get a
legislator disqualified from occupying his/her seat, did not exist
in Edo, except for paragraph F, which provides that such member
would vacate his seat if, “without just cause’’ he is absent from
meetings of the state legislature for a period of 1/3 of the total
number of meeting days in a given year.”

Umukoro explained that the procedure is that the Speaker shall
give effect to the said provision “so long as he, or a member
presents evidence satisfactory to the House that any of the items
has become applicable with respect to any of the member.”

Hamid Ajibola Jimoh also said the action of the House did not
comply with the rules, and that was why the INEC refused to conduct
the by-election. He added that the matter is now a subject for the
courts.

“The INEC, in its reaction, maintained that it is bound by the
provisions of Section 109 of the 1999 constitution, which
stipulates those conditions or grounds for by-election to be
conducted in the State House of Assembly; therefore, there is no
action or by-election conducted by INEC.

“I totally, I agree with the INEC on its position. Also,
considering the careful use of the constitution while using
‘vacate’ in Section 109(1), which in my humble view, means that for
a legislator to vacate his seat means that he was duly elected in
the first place. So, suspension in my view, is not enough to compel
their vacation of their constitutional seats in the House yet,” he
said.

The APC national chairman had, at different occasions, called
the inauguration of the Edo Assembly an illegality.

Last year, Oshiomhole insisted that Okiye was not the Speaker as
he would not close his eyes to ‘illegal decisions and actions’
capable of derailing the nation’s democracy.

The APC boss, who said he could not support ‘illegality’ to make
Governor Obaseki happy, however, added that he had no personal
quarrel with him.

He said that to produce the Speaker of the House, the governor
should have lobbied the 24 members, who are all members of the
APC.

He said inaugurating the House at 9:30pm with nine members was a
rape of the country’s democracy.