On NBA’s position on the withdrawal of Tambuwal’s security

By Sotonye Frank

I read with much unease the press statement of the Nigerian Bar Association (NBA) on the withdrawal of the security personnel attached to the former Speaker of the House of Representatives following his defection from the PDP to the APC. In the said statement, the NBA, through its national president, Augustine Alegeh, SAN passed judgment on the action of the police, declaring it unconstitutional.

The plank of the NBA’s position – and this reflects the views of some respected lawyers – is that the Nigerian Police lacks the power and competence to interpret provisions of the constitution as only the judiciary can play that role. I agree. Sadly, that’s about all that I am in agreement with the NBA in their statement.

In the first place, the NBA appears to confuse enforcement of the law with interpretation of the law. The word ‘interpret’ means ‘to explain the meaning of information or actions’. Synonyms include, explain, elucidate, expound, explicate, clarify, make clear, make plain. On the other hand the word ‘enforce’ means ‘to compel observance of or compliance with a law, rule or obligation. Synonyms include, to impose, apply, carry out, administer, Implement, bring to bear, etc.

It is not in dispute that the judiciary has the constitutional role to interpret laws, including the constitution. It is also not in dispute that it is the Nigeria Police Force that has the constitutional mandate to enforce laws, including the constitution. The crucial question then is whether the actions of the police in withdrawing the former speaker’s security amounts to an interpretation of section 68(1)(g) or an enforcement of the section. The NBA sees it as an interpretation of the provision. I disagree.

I am of the firm view that the police simply enforced the relevant provision of the constitution and they are entitled to so do. Section 68(1) (g) of the Constitution provides that ‘a member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if – being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected.”

This provision, written in clear and unmistakable terms, means that any member of the legislative arm of government that defects while being a member of the house is deemed, in law, to have vacated his seat. Indeed, in Attorney-General of the Federation v Abubakar (2007) 10 NWLR Pt 1041 page 1 at page 178 (Judgment delivered on 20th April 2007), the Supreme Court, had this to say about section 68(1)(g) of the Constitution:

“Applying the well-known principles of interpretation to the above provision of the Constitution, I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. (Italics added) – Pius Olayiwola Aderemi , J.S.C

In view of the clear and unmistakable provision of section 68(1)(g) of the constitution, and the views expressed by the Supreme Court in AGF v Atiku, one does not need to be a lawyer to know that upon announcing his defection, Rt. Hon. Aminu Tambuwal ‘is deemed, in law, to have automatically vacated his seat’ in the House of Representatives, therefore losing an essential requirement to be a Speaker. The Nigerian Police Force, being a law enforcement agency, is therefore under a legal duty to enforce the provision.

The suggestions that the police should seek judicial interpretation before enforcing the provision is not only absurd but also an invitation to chaos and disorder. Are we saying the police should also seek judicial interpretation before withdrawing security from a Governor who has vacated his seat following an impeachment? For example, should the police have gone to court to seek judicial interpretation on the provisions relating to impeachment before withdrawing the security personal attached to Murtala Nyako, the impeached governor of Adamawa State? Point is: if the constitution stipulates a penalty for an act, it is the duty of the police to enforce such a penalty upon the occurrence of such act. They do not require any judicial interpretation before acting.

Of course I am aware that by virtue of section 68(2) of the constitution, the Speaker, being the presiding office of the House, is to give effect to the provision of 68(1)(g). In other words, he is the one constitutionally empowered to confirm the vacancy of the seat of a defecting member. In the instant case, however, the Speaker is the one defecting. Upon defection, he did not vacate his seat but rather adjourned the House to 3rd December 2014. In the circumstances, the onus must shift to the executive to enforce the law. This is because by virtue of section 5(1) (b), the executive powers of the President “extend to the execution and maintenance of the constitution, all laws, made by the National Assembly and to all matters with respect of which the National Assembly has, for the time being, power to make laws.” In other words, the President has a constitutional duty to ensure the execution and maintenance of the constitution. He can therefore, acting through the police, take steps to fulfil this duty.

I am also not unaware that there is a proviso to section 68(1)(g) to the effect that the member of the House may not vacate his seat if the defection is because of a division or merger of his former party. It is however trite law, that where a person claims to come under an exception, exemption or proviso of a law, the burden of proof is on that person. It is therefore the responsibility of the former Speaker to go to court to prove that he falls within the proviso. It is NOT the responsibility of the police and the police needs not to wait for the former Speaker to seek judicial interpretation before acting. Of course, if the former Speaker had filed a suit before defecting, as some of his colleagues did, the matter would have been sub judice and the police must await the pronouncement of the court before acting. He didn’t do so. There was nothing stopping the police from acting as at the time they did.

Before concluding, it is important to add that contrary to the views expressed by the NBA, the issue of whether the former Speaker can still retain his seat, is, strictly speaking, not an issue of interpretation of the constitution. Rather, it is a question of fact. i.e. is there a division in the PDP to bring the former Speaker within the proviso? That said, I listened to the speech made by the former Speaker. If my ears did not fail me, nowhere did he mention division or merger in his party as the reason for his defection. Rather, he said he was defecting ‘pursuant to the extant provisions of the Constitution of the Federal Republic of Nigeria and having regards to development in my home State of Sokoto” whatever that means.

In conclusion, it is my firm view that the police acted lawfully by withdrawing the security personnel attached to the former Speaker. By virtue of section 68(1)(g), the former Speaker is deemed in law, to have automatically vacated his seat upon his defection from the party that sponsored him. Their action was simply to enforce a provision of the constitution that does not allow for any other interpretation.

*Dr Sotonye Frank, a legal practitioner and lecturer, writes from Port Harcourt and can be reached at [email protected]