RE: RESOLUTION BY THE NATIONAL ASSEMBLY TO TAKE OVER THE AFFAIRS OF THE KOGI STATE HOUSE OF ASSEMBLY

This is the legal opinion of the Honourable Minister of Justice and Attorney General of the Federation to the Inspector-General of Police posted here verbatim as written to the IGP in a letter dated 5th of April, 2016 on the Kogi State House of Assembly issues.

LEGAL OPINION
RE: RESOLUTION BY THE NATIONAL ASSEMBLY TO TAKE OVER THE AFFAIRS OF THE KOGI STATE HOUSE OF ASSEMBLY PURSUANT TO SECTION 11(4) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (As Amended) AND THE CONSEQUENT DIRECTIVE TO THE INSPECTOR-GENERAL OF POLICE TO SEAL OFF THE PREMISES OF THE KOGI STATE HOUSE OF ASSEMBLY

This Legal Opinion is proffered pursuant to the request contained in your letter No.3383/IGP.SEC/ABJ/VOL.40/779 dated 18th March, 2016 in respect of the above described subject matter. You will recall that the said letter further conveyed Letter No. NASS/CAN/105/VOL.21/166 dated 14th March, 2016 from the Clerk of the National Assembly.

OBJECTIVE OF THE LEGAL OPINION
2. This Opinion seeks to address the legal issues arising from the Resolution of the two Houses of the National Assembly (The Senate and House of Representatives, respectively) pursuant to which the National Assembly has decided to take over the affairs of the Kogi State House of Assembly, in consonance with S.11(4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter referred to as the 1999 Constitution) due to the alleged crisis within the said State House of Assembly, which in the opinion of the National Assembly, now prevents the State House of Assembly from performing its normal functions.
3. Furthermore, this Legal Opinion examines the directive of the National Assembly to the Inspector-General of Police requesting the Nigeria Police Force to seal off the premises of the Kogi State House of Assembly in Lokoja, in order to prevent the Assembly from conducting any business during the period of take-over of it business by the National Assembly.
4. The fundamental issues to be addressed hereunder include the following:
(i) Whether the fatual situation envisaged under S.11(4) of the 1999 Constitution entitling the National Assembly to exercise the powers contained therein, existed in Kogi State at the time of the Resolution(s) by the National Assembly purported to take over the affairs of the State House of Assembly.
(ii) Whether the National Assembly validly exercised its powers as aforesaid, particularly in relation to the doctrine of lis pendens in adopting the aforesaid resolution(s) to tak over the affairs of the House;
(iii) Without prejudice to the determination of the above, whether the Resolution of the National Assembly as aforesaid has the force of law to actually amount to a take-over of the functions of the House.
FACTUAL BACKGROUND
5. The factual situation which the Resolution of the National Assembly seeks to address is contained in the Resolution as set out in the letter of the Clerk of the National Assembly herein before referred to as follows:
(i) In view of the fact that the Kogi House of Assembly cannot perform its legislative functions due to the intractable crises and the volatile security situation in the State, the National Assembly hereby invokes the powers conferred on it by Section 11(4) of the Constitution of the Federal Republic of Nigeria to take over the legislative functions of the State House of Assembly pending the restoration of normalcy in the Assembly.
(ii) declared that the impeachment proceedings embarked upon by 5 members of the Kogi State House of Assembly is null and void.
(iii)  condemned the action of the 5 members of the Kogi State House of Assembly as a clear violation of Section 92(c) of the 1999 Constitution (as amended);
(iv)  condemned the role played by the Nigeria Police in subverting the provision of the Constitution by providing cover for only 5 members out of the 20 members of the Kogi State House of Assembly to commit illegalities.
6. A distillation of the Resolution as contained will however indicate that the following factual situations were apparently meant to be addressed by the House of Representatives Resolution:
(i) The inability of the Kogi State House of Assembly to perform its legislative functions;
(ii) The inability was caused by the intractable crises and the volatile security situation in the State;
(iii) 5 members of the Kogi State House of Assembly had embarked on impeachment proceedings against the Speaker of the State House of Assembly.
(iv) The said impeachment proceedings were null and void; and
(v) The Nigeria Police Force had acted unconstitutionally in providing cover for the said 5 members.

The Constitutional basis for the intervention by the National Assembly
7. S.11(4) and (5) of the 1999 Constitution (as amended) which provide the Constitutional foundation for intervention by the National Assembly are set out as follows:
“ At any time when any House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in the State, the National Assembly may make such laws for the peace, order and good government of that State with respect to matters on which a House of Assembly may make laws as may appear to the National Assembly to be necessary or expedient until such time as the House of Assembly is able to resume its functions and any such laws enacted by the National Assembly pursuant to this Section shall have effect as if they were laws enacted by the House of Assembly of the State.
Provided that nothing in this Section shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the State from office.
(5) For the purposes of Subsection (4) of this Section, a House of Assembly shall not be deemed to be unable to perform its functions so long as the House of Assembly can hold a meeting and transact business.”

Determination of the Issues:
Issue I
8. Comment: A 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.
9. 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.
10. 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. Kogi State is currently not under a State of Emergency or any situation close to it. At best, what was playing out in Kogi State was an internal dispute within the Kogi State House of Assembly from which the majority of its citizens have been immune as normal activities continue to take place. The said dispute was also of a character which was ultimately capable of being resolved by requisite judicial intervention, in line with the Constitution.
Issue 2:
10. Comment: The rules of procedure of the National Assembly preclude it from taking a decision on a matter/adopting a Resolution where such a matter is pending before a Court of Law. In this case, it would appear to me that this rule of procedure was observed in the breach by the National Assembly as it is on record that both parties to the dispute in the Kogi State House of Assembly had already filed actions in Court at the time the decision of the National Assembly was taken.
11. A notable example of pending legal action in the above regard was Suit No. FHC/LKJ/CS/16/16 (KOGI STATE HOUSE OF ASSEMBLY & 3 ORS V. NATIONAL ASSEMBLY & 2 ORS), which to the best of my knowledge is on-going. It is therefore my considered view that the Resolution of the House of Representatives on the matter breached its own rules and would therefore face a grave test of validity.

Issue 3:
12. Comment: 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. While they may convey the thinking and philosophy of a House in respect of a matter, Resolutions however 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.
13. 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. The legal maxim that ‘you cannot build something on nothing’ will be applicable here. It is submitted that the National Assembly in the appropriate circumstances, where it validly exercises its powers under Section 11(4), would need to back up its Resolutions with a Bill, which when ultimately passed into law would create the necessary legal basis for its take-over of such legislative functions.
14. In addition to the above issues, it appears to me 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 an exercise of judicial power by the Legislature, contrary to Section 6 of the 1999 Constitution (as amended) as it is a matter that should be determined judicially on the application of the affected persons. The same evaluation will attend its description of the alleged action of the Nigeria Police Force in purportedly providing protection for 5 persons as an act that was tantamount to ‘subverting the provision of the Constitution’ as matters of Constitutionality are issues for judicial determination.
CONCLUSION
15. 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”.
16. I hereby advise that you take all necessary action within the law to continue to ensure the safety of lives and property in Kogi State and ensure that the necessary public peace and order continues to be maintained appropriately.
17. The above is for your guidance and further necessary action, please. Be assured of my warm regards and high esteem always.

ABUBAKAR MALAMI, SAN
Honourable Attorney-General of the
Federation and Minister of Justice.