By Okoi Obno-Obla
The recent actions of the Cross River State House of Assembly are disturbing, disconcerting, and threatening to democracy. Specifically, the arrest and suspension of an Etung Local Government Legislative Council member, for allegedly threatening public peace in Etung, Cross River State, raise concerns.
This essay will examine the Cross River State House of Assembly’s actions through a constitutional lens, analyzing whether they align with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and other extant laws.
The primary function of the Cross River State House of Assembly is to make laws for the peace, stability, and good governance of Cross River State. Section 7 (a)(b) & (c) of the Constitution states:
“The legislative powers of a state of the federation shall be vested in the House of Assembly of the state. The House of Assembly of a state shall have power to make laws for the peace, order and good government of the state or any part thereof with respect to the following matters, that is to say:-
(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”
In light of this, two critical questions arise:
1. Does the Cross River State House of Assembly have the power to arrest any citizen of the Federal Republic of Nigeria in its exercise of legislative powers under the Constitution?
2. Does the Cross River State House of Assembly have the power to suspend a member of a local government Legislative Council?
The answer to the questions posed earlier must be in the negative. The Cross River State House of Assembly has no power to order the arrest of any citizen of the Federal Republic of Nigeria. The power of arrest is exclusively vested in executive agencies of the Federal Government, such as the Police, State Security Service, Nigeria Customs Service, and Nigeria Immigration, or any body created by an Act of the National Assembly and empowered to effect arrests.
However, the House of Assembly has ancillary powers to arrest individuals in the context of its oversight jurisdiction over executive agencies, departments, ministries, and commissions of the government of Cross River State, as vested by Section 128 (1)(a)(b) & (c) of the Constitution. Section 128 (1)(a)(b) & (c) provides:
“(1) Subject to the provisions of this Constitution, a House of Assembly shall have power by resolution published in its journal or in the Office Gazette of the government of the state to direct or cause to be directed an inquiry or investigation into:
(a) any matter or thing with respect to which it has power to make laws; and
(b) the conduct of affairs of any person, authority, ministry, or government department charged, or intended to be charged, with the duty of or responsibility for:
(i) executing or administering laws enacted by that House of Assembly, and
(ii) disbursing or administering money appropriated or to be appropriated by such House.”
The powers conferred on the House of Assembly under Section 128 are exercisable only for the purpose of enabling the House to:
(a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and
(b) expose corruption, inefficiency, or waste in the execution or administration of laws within its legislative competence, and in the disbursement or administration of funds appropriated by it.
When exercising its powers under Section 128, the House of Assembly or a committee appointed by it has the power:
(a) to procure all such evidence, written or oral, direct or circumstantial, as it may think necessary or desirable, and examine all persons as witnesses whose evidence may be material or relevant to the subject matter;
(b) to require such evidence to be given on oath;
(c) to summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness and require him to produce any document or other thing in his possession or under his control, subject to all just exceptions;
(d) to issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails, refuses, or neglects to do so and does not excuse such failure, refusal, or neglect to the satisfaction of the House of Assembly or the committee, and order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure, refusal, or neglect to obey the summons and also to impose such fine as may be prescribed for any such failure, refusal, or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law.
It is only in the circumstances enumerated above, as provided by Section 129 (1) (a)(b)(c) & (d) of the Constitution, that the House of Assembly or a committee appointed by it can arrest an individual who fails to honor an invitation to provide evidence. In such cases, a summons or warrant issued under this section may be served or executed by any member of the Nigeria Police Force or by any person authorized in that behalf by the Speaker of the House of Assembly of the state.
Having resolved the first question in the negative, I’ll proceed to answer the second question. The Cross River State House of Assembly has the power to legislate for local government areas under Sections 7(1) and 8 of the Constitution. Section 7(1) guarantees the system of local government by democratically elected councils and requires states to ensure their existence under a law that provides for their establishment, structure, composition, finance, and functions.
As a tier of government, local governments are independent and autonomous in carrying out their constitutional functions. They are not appendages of the House of Assembly and are not under its supervision or control. However, the House of Assembly may exercise its oversight powers under Section 128 (1)(a)(b) & (c) to investigate the management of public funds or the running of local government councils to expose corruption, inefficiency, or maladministration, for the purpose of exercising its law-making functions.
Therefore, the House of Assembly has no power to order the suspension of a member of the Etung Local Government Legislative Council or any local government Legislative Council.
In a landmark decision delivered by the Supreme Court of Nigeria (the “Court”) on July 11, 2024, in the case of Attorney General of the Federation v. Attorney General of Abia State & 35 Ors, the court reinforced the autonomy of local governments in Nigeria, affirming their status as a distinct third tier of government in the country.
Conclusion:
It is evident that the House of Assembly has acted excessively beyond the boundaries of its powers as vested by the Constitution. When a body like the House of Assembly acts ultra vires, any actions taken pursuant to such illegal or excessive exercise of powers are null and void and of no effect.
@ Okoi Obono-Obla
