TELL Magazine

PDP candidates to INEC – Invoke doctrine of necessity, Issue us certificates of return

…PDP demand lacks legal basis, Ogbodu, Osagie

Amidst the twists and turns in the protracted crisis rocking the Edo State House of Assembly since June this year, a new dimension was introduced into the matter on Sunday with the main opposition party, the Peoples Democratic Party, PDP demanding that its candidates during the March 9, 2019, legislative polls be issued certificates of return. The party accused 14 members of the ruling All Progressives Congress, APC, who have continued to stay away from the House over disagreement in the manner the June 17 inauguration of the 7^th Assembly was handled, of abdication of their offices. In a letter dated December 17, 2019, addressed to the Independent National Electoral Commission, INEC on behalf of the PDP candidates signed by their counsel, Chikaodinaka Adindu Esq, and titled “An Imperative Call for your Swift Intervention With Respect To Some of the Members-Elect who have Abdicated their Office in the Edo State House of Assembly and as a result, their Constituencies Declared Vacant by the Speaker”, the PDP candidates recalled events leading to the present stalemate. They said following a letter of proclamation of June 14 by the governor, the House was inaugurated Monday, June 17 with Francis Abunere Okiye and Yekini Oisayemoje emerging as speaker and deputy speaker respectively.

They noted that while nine members presented themselves for inauguration, “the other Fifteen (15) Members-elect as declared by your commission were absent from the inauguration ceremony on the said date without any justification/excuse whatsoever” following which their seats were declared vacant December 4, 2019. The seats declared vacant by the speaker were that of two members who took the oath of membership/allegiance and later stayed away from plenary, and that of 12 others who claimed to have been deliberately excluded from the exercise. The former group alleged that they were abducted and railroaded into the ceremony by suspected agents of government in a desperate bid to form a quorum.

In declaring 12 constituency seats vacant, Okiye said the members-elect had “refused/neglected” to present themselves for inauguration and the subscription of oath of membership/allegiance, and the House, having sat for the First Session and First Quarter without them, called for a bye-election in the affected Constituencies. According to the PDP, “in the circumstance, the only inference that can be drawn from their action/inaction in this regard is that they have abdicated their mandates without cause”.

The genesis of the festering crisis in the 7^th Assembly is traceable to the battle for the control of that arm of government between political forces loyal to the governor, Godwin Obaseki, and his estranged benefactor, Adams Aliyu Oshiomhole, the immediate past governor of the state, and national chairman of the ruling APC. The constituency seats declared vacant are Etsako West 1, Etsako West 11, Esan Central, Egor, Ovia North East 1, Ovia North East 11, Uhunmwode 1, Oredo West 11, Etsako East 1, Etsako Central, Ovia South West, and Owan West.

Consequent upon this development, Adindu wrote: “we have the authority of our Clients to communicate their stand/demand on the issues with respect to the constituencies that have been declared vacant by the Speaker, Edo State House of Assembly as follows: (a) That the refusal/neglect by members-elect to subscribe to the Oath of Membership/Allegiance with respect to the affected constituencies throughout the First Session and First Quarter of the 7^th Assembly of Edo State amounts to abdication of office. (b) That the appropriate thing the commission should do in the circumstance is to withdraw the affected members’ certificates of return having failed/neglected to sit in the House they were elected, and their constituency having been declared vacant by the Speaker in exercise of his power as vested by the Constitution of the Federal Republic of Nigeria 1999 (as amended) by which act, the affected members-elect can no longer be inaugurated. (c) That sequel to the declaration of the affected Constituencies vacant by the Speaker of the Edo State House of Assembly, your commission should not, in the interest of Justice and Equity, conduct any fresh elections into the affected constituencies as the affected Members-elect did not subscribe to the Oath of Membership/Allegiance, and abdicated their responsibilities. As such, state resources should not be wasted in conducting fresh elections where there are 1^st Runners-up in the concluded elections. (d) That certificate of return should be issued to our Clients as the 1^stRunner up in their various Constituencies since the members-elect who abdicated their positions did not subscribe to the Oath of Membership/Allegiance before their Constituencies were declared vacant by the Speaker in the interest of Justice and Equity. (e) That we most humbly implore you to liken this case to that of Musa Yar’adua and Goodluck Jonathan. Since there is a lacuna in the Constitution as to what is to be resorted to when a person, having been declared a winner in an election but failed/neglected to subscribe to the Oath of Membership/Allegiance, and consequent upon which his seat/constituency is declared vacant by the Speaker, the Doctrine of Necessity should be invoked to issue certificate of return to the 1^st Runner up in the election in order to save their constituencies from undue suffering and neglect having performed their civic responsibility of voting only to be denied the dividend of democracy”.

Concluding, the PDP candidates’ counsel said “we are by this letter demanding/requesting you and your Commission (INEC), to use your good offices to issue to our Clients, Certificate of Return within the next 7 days of the receipt of this letter”. Adindu warned that failure to accede to this request within the stipulated time, “we shall be left with no other option than to carry out the full instructions of our Clients by instituting an action in court of law”.

Washington Osifo, a lawyer, and spokesman of the legislators-elect had in his reaction to the declaration of their seats vacant, described it as laughable. According to the former commissioner for education, “it is laughable for Edo state House of Assembly to declare our seats vacant. This is furthering the illegal proclamation on June 17 carried out on the order and under the supervision of the governor. Their action is laughable and it is a joke taken too far. We are in court challenging the illegality and we wonder where they got the impetus to write their purported letter to INEC”. Dismissing the action as a nullity which cannot stand the test of time, Osifo said it was wrong for any party before a court of law to take any step that would render the power of the court in a matter nugatory. The spokesman for the group of 14 said they were not surprised about the development because it was what the state government was capable of doing. He posited that “this is a further proof that the people behind this whole saga have no respect for the rule of law. Anyone following events in Edo State will not be surprised about this other illegality because it is what the state government of the day is capable of doing and is their stock-in-trade”.

However, legal opinions are unanimous that the request of the PDP has no place in law. Henry Ogbodu, senior advocate of Nigeria, SAN, and a Benin-based legal practitioner, described the PDP candidates as “jokers”. According to him, “the reason is very simple. The elections of those 14 persons were never challenged at the election petition tribunal. If they didn’t go for inauguration, that is their headache. It’s like somebody not going to work. In the legislature, you absent yourself from plenary, the speaker will declare your seat vacant; not vacant for the purpose of those that did not challenge the election. The seats will be vacant; it’s as if nobody is there. INEC can conduct another election”.

Asked if the circumstances of the case whereby the aggrieved lawmakers-elect were deliberately shut out should not be considered, Ogbodu said “that one is an internal affair. When you talk of inauguration, it’s like starting something. It doesn’t mean that if you were not there the day the House opens you are no longer a legislator. So, you can come in any time. The purpose of that inauguration they are quarreling over is who become principal officers of the House, especially the speaker. They should have gone there; in another one, two weeks, then you remove the speaker if you are not satisfied”. As far as he was concerned therefore, “there is no legal basis for the PDP to make such a demand. You know the House is an APC affair. Once the House declares the seats vacant, INEC can then conduct another election, if the PDP now wins, okay; if they don’t win, good luck to them”.

Samson Osagie, a former two-term member of the state House of Assembly, and immediate past minority whip in the House of Representatives spoke in the same vein, stating that “PDP is trying to fish in troubled waters to take advantage of the internal crisis of the party”. While taunting the PDP for “trying to reap where they did not sow”, Osagie, like Ogbodu, also argued that “their position is not supported by law”. He said to start with, the very acts declaring those seats vacant were already subjects of court adjudication. “So, there is no precedent to the request they are making of INEC. It’s not supported by any law at all. I do not think that INEC will yield to such request. INEC has received it; they have also met to look at all the issues involved. I think what is left now is for them to formally come out with a position. By and large, the plethora of cases in court with respect to the House of Assembly is enormous. I don’t expect INEC to ignore those ones and be going ahead with any election”.

Osagie, executive director, (Marketing and Business), Nigerian Communications Satellite, NIGCOMSAT, explained that doctrine of necessity can only be invoked where there is no law concerning a particular circumstance or situation. But on the question of for how long the 14 lawmakers-elect would remain shut-out, he regretted that from all indications, it looked like the only solution to this logjam is judicial pronouncement, stressing that “in the light of the fact that the various actors are not seeking political solutions, so, it looks like it’s the courts that can give finality to the matter”. He was however convinced that one way or the other, it would be resolved.

Osagie, however, had a major concern. “My only worry,” he said, “is that the issues involved are capable of getting up to the Supreme Court if the parties remain intransigent; if the parties refuse to accept negotiation. And as you can see, reconciliation efforts and interventions have been done on a number of occasions, but one party refuses to just listen, so much so that even a national reconciliation committee to be headed by the senate president is being rejected. So, all these are the issues. By and large, these are all political issues. One way or the other, they will sort themselves out. The only thing is that it is denying Edo State a vibrant legislature and House of Assembly”. Osagie opined that at the end of it all, “this era would be referred to in the near future as very dark days in the history of democracy in Edo State because it has never happened, and it is very unfortunate”. As a lawyer, however, he was of the view that it would serve as precedence especially by the time the courts are done with the various cases and pronouncements are made.

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