On January 26, when President Muhammadu Buhari assented to eight bills passed by the National Assembly, not many paid much attention to the Legislative Houses (Power and Privileges) Act 2018.
This Act, among others, empowers members of the National Assembly to sanction an errant member.
On April 12, the Senate applied it. It suspended Ovie Omo-Agege, representing Delta Central Senatorial District, for 90 legislative days.
Similar sanctions, based on in-house disciplinary rules, were employed by national and state legislators in the past to discipline erring members.
For instance, on June 7, 2012, the Bauchi State House of Assembly suspended indefinitely its member representing Bogoro Constituency, Rifkatu Samson Danna.
Abdulmumin Jibrin, representing Kano in the Lower Chamber, was, on September 28, 2016, shut out for 180 legislative days.
A similar fate befell Senator Ali Ndume on March 30, last year, but his was for 90 days.
The suspensions were not without controversies and legal disputes.
Omo-Agege’s case, however, with the mace-snatching at the Red Chamber in its wake, seems to be the most controversial.
Omo-Agege was suspended during plenary over his remarks that the amendment of the 2010 Electoral Act, which attempts to change the sequence of elections set by the Independent National Electoral Commission (INEC), was targeted at President Muhammadu Buhari.
The Senate Committee on Ethics recommended that the senator be suspended for 181 legislative days but the chamber reduced it to 90.
The committee expressed disappointment that, despite admitting guilt on the floor of the Senate and apologising on February 21, Omo-Agege still refused to withdraw his suit against the Senate and its President.
His suspension, according to the Senate, is to serve as a deterrent to other senators who might contemplate suing it over its power to regulate or determine its internal matters.
The lawmaker’s application of April 3 requesting the Federal High Court sitting in Abuja to stop his suspension by the Senate was rejected by Justice Nnamdi Dimgba.
Justice Dimgba, in an ex-parte ruling on April 11, declined the Senator’s prayer to order parties to maintain status quo by suspending all actions concerning the issues raised in the suit.
The judge said he could not grant such orders without hearing from the defendants “in the interest of maintaining the balance of power between the judicial and the legislative organs of government”.
Legislative Houses (Power and Privileges), Act
The law under which the Senate acted is the Legislative Houses (Power and Privileges), Act 2018. The Act grants members of Legislative Houses in the National Assembly and state Houses of Assembly immunity from litigation for actions taken in plenary or committee proceedings of the House or committee.
It authorises the lawmakers to summon any person to appear before them, give evidence, including power of an officer of the legislative House to arrest any person who commits an offence against the Act.
The Act also regulates the conduct of members and other persons connected with the proceedings thereof and for matters concerned therewith.’’
Section 21(1) and (2), are of particular relevance.
Section 21, titled ‘’Contempt of a Legislative House by members’’, states:
21(1) Any member of a Legislative House who-
(a) being a member of a committee of the House, publishes to any person not being a member of such committee any evidence taken by the committee before it has been reported to the House;
or (b) assaults or obstructs a member of the Legislative House within the Chamber or precincts of the House;
or (c) assaults or obstructs any officer of the Legislative House while in the execution of his duty;
or (d) is convicted of any offence under this Act, shall be guilty of contempt of the Legislative House.
(2) Where any member is guilty of contempt of a Legislative House, the House, may by resolution, reprimand such member or suspend him from the service of the House for such period as it may determine: Provided that such period shall not extend beyond the last day of the meeting next following that in which the resolution is passed, or of the session in which the resolution is passed, whichever shall first occur.
(3) No salary or allowance payable to a member of a Legislative House for his service as such shall be paid in respect of any period during which he is suspended from the service of the House under the provisions of this section.
(4) Nothing in this section contained shall be construed to preclude the bringing of proceedings, civil or criminal, against any member in respect of any act or thing done contrary to paragraph (b) or (c) of subsection (1) of this section.
Section 22 further says that, ‘’Suspended member excluded from Chamber and precincts
‘’A member of a Legislative House who has been suspended from the service of that House shall not enter or remain within the Chamber or precincts of the House while such suspension remains in force, and, if any such member is found within the Chamber or precincts of the House in contravention of this section, he may be forcibly removed therefrom by any officer of the House and no proceedings shall lie in any court against such officer in respect of such removal’’.
The United States example
Suspension of lawmakers is not a strange practice outside Nigeria.
The United States Constitution, for instance, gives its Senate the power to expel any member by two-third votes.
However, only 24 Senators have been expelled or censured in over 215 years of American democracy.
Does the Legislative Houses (Power and Privileges), Act conflict with the Constitution?
In Chapter IV of the 1999 Constitution (As Amended), Section 39(1) grants every person freedom of expression, including freedom to hold opinions and to receive and impart ideas and information, without interference.
Section 6 of the 1999 Constitution also vests judicial powers on the courts while Section 6 (6) (b) specifically states that the said judicial powers ‘’shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person’’.
This appears to conflict with Section 21 (2) of the Legislative Houses (Power and Privileges), Act 2018 which states that ‘’where any member is guilty of contempt of a Legislative House, the House, may by resolution, reprimand such member or suspend him from the service of the House for such period as it may determine’’.
The legislators are thus at liberty to exercise the power of removal of a lawmaker whether his or her constituents like it or not, for such a period as long as even a whole session of the Senate.
The legislators thus appear to be applying powers similar to the Constitutional power to recall a lawmaker.
Section 69 of the Constitution says, ‘’A member of the Senate or of the House Representatives may be recalled as such a member if
(a) there is presented to the Chairman of the Independent National Electoral Commission a petition in that behalf signed by more than one-half of the persons registered to vote in that member’s constituency alleging their loss of confidence in that member;
‘’(b) the petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.
How other lawmakers were removed
The Senate on March 30, last year, suspended Ali Ndume, the former Majority Leader for 90 legislative days (six months).
Ndume is representing Borno South Senatorial District at the Red Chamber of the National Assembly.
He was suspended for raising a matter that the Senate investigate public allegations of impropriety against the Senate President, Bukola Saraki, and another senator, Dino Melaye.
The Senate Committee on Ethics, Privileges and Public Petitions, which investigated the matter, recommended that Mr. Ndume be suspended for one year.
The report, which was presented by the committee’s Chairman, Samuel Anyanwu, was considered by the lawmakers at plenary.
Ndume was subsequently suspended for six months for “bringing Melaye, his colleague, and the institution of the Senate to unbearable disrepute.”
Ndume, not satisfied by the reason given for his suspension, headed to court to challenge the action of the Senate.
Last November 10, the Federal High Court, Abuja declared Ndume’s suspension illegal and ordered that he be paid all his outstanding salaries and allowances.
Justice Babatunde Quadri in his judgment set aside the suspension and ordered that Ndume be allowed to resume his duties in the Senate as a senator.
The judge held: “The suspension of the plaintiff (Ndume) is hereby declared illegal, unlawful and unconstitutional. The purported suspension contained in the letter of March 30 is hereby set aside.
“The first and second defendants (the Senate president and the Senate) are hereby directed to pay the plaintiff his outstanding salaries and allowances forthwith.”
The judge, however, refused to grant the N500 million damages Ndume asked the court to award him.
Senate appeals judgment
But the Senate, through its lawyer, Chief Mike Ozekhome (SAN) said it disagreed with the judgment and asked the Court of Appeal, Abuja Division to set it aside.
According to the Senate, “the high court lacks the jurisdiction to entertain the suit Ndume filed to challenge his suspension.”
However, in its appeal, the Senate maintained that the plaintiff wrongly joined several causes of action in his originating summons.
It argued: “An action for the enforcement of fundamental rights to fair hearing could only be brought against a court or a tribunal, established by law as held by the Supreme Court in several current cases, and not against committee of a legislative body.”
Besides, the appellants contended that by the provisions of sections 3 and 30 of the Legislative Houses (Powers and Privileges) Act, the high court lacked requisite jurisdiction to hear the suit of the plaintiff.
On September 28, 2016, the House of Representatives suspended Abdulmumin Jibrin, a lawmaker from Kano, for 180 legislative days following his allegation of ‘budget padding’ against its leadership.
Jibrin’s claim was targeted at the Speaker of the House, Yakubu Dogara, and three other principal officers, whose resignation and prosecution he demanded.
Eight days earlier, the House assigned the matter to its Ethics and Privileges Committee for further investigation and to report back within a week with its findings and recommendations.
Chairman of the committee Nicholas Ossai convened the first hearing on the matter on September 23, during which Mr. Orker-Jev submitted his allegations against Jibrin.
Jibrin received an invitation to appear before the committee on Monday, but decided to boycott the hearing, even though his demand that the sitting be thrown open to the public was denied by Ossai.
Jibrin also asked his lawyer, Femi Falana, to seek discontinuation of the committee’s activities in court.
Ossai said Jibrin’s failure to appear before his “properly and constitutionally constituted committee” was, in effect, a defence. This cleared the way for Jubrin’s suspension.
But Jibrin faulted the lawmakers’ action, saying since the matter had become subjudice (under judicial consideration and therefore prohibited from public discussion elsewhere), thus the committee should not have sat.
Last March 13, the House of Representatives lifted Jibrin’s suspension, saying the lawmaker had written a letter of apology.
Dogara said: “He has fulfilled all the conditions by writing this letter and so he is free to resume his legislative duties whenever he wants, if he so wishes.”
On June 7, 2012 the Bauchi State House of Assembly suspended its member representing Bogoro Constituency, Rifkatu Samson Danna.
Danna, the only female member and Christian of the House, was placed on indefinite suspension for voicing out her peoples’ opposition to the ‘unconstitutional’ transfer of the headquarters of Tafawa Balewa Local Government Area from Tafawa Balewa town.
During a debate on the proposed relocation of Tafawa Balewa Local Government headquarters from Tafawa Balewa to Bununu, Danna was the lone voice, explaining that the headquarters of local governments listed in the Constitution of the Federal Republic of Nigeria could not be changed without constitutional amendment.
Tafawa Balewa, which is recognised by the 1999 Constitution as the Local Government headquarters, is predominantly Christian, while Bununu is a predominantly Muslim community.
While making her point, Danna, who was first elected into the House in 2007 and re-elected two years ago, said the unanimous and hurried manner in which the decision was reached suggested that there must have been a meeting on the matter to which she was not privy.
That statement was considered derogatory to the House and Danna was made to apologise verbally and in writing.
Despite her apologies, a report of the House Committee on Anti-Corruption, Ethics and Privileges found her remarks during a parliamentary session “repugnant, detest full and quit derogatory’’ (sic).
An investigating House Committee recommended that she should either be suspended indefinitely or be issued a letter of warning. The House chose the former.
She sued the House at the Bauchi State High Court, which declared her indefinite suspension illegal, unconstitutional restored her seat.
The House appealed but the Court of Appeal also ruled in Danna’s favour.
The House also approached the Supreme Court for an order staying the execution of the Appeal Court judgment that reinstated Danna, but the apex court declined.
On February 7, this year, Danna was appointed Bauchi State Commissioner of the Ministry of Environment.
‘Why Omo-Agege’s suspension may be justified’
According to a lawyer and public affairs analyst, Fred Nzeakor, Omo-Agege mis-conducted himself, thus, he left the Senate with out much choice.
Speaking on a television programme, Nzeakor said by making his contentious remarks outside the National Assembly, Omo-Agege mis-conducted himself as a parliamentarian “because for every privilege, there is responsibility.
“He has parliamentary and legislative privilege which guarantees him to say anything on the floor of the parliament and then he will not be prosecuted, he will not be held accountable for that.
“But when he leaves the floor of the parliament where he has legislative immunity and then goes outside to make some utterances to disparage the very institution he took an oath to sustain, to support and work with that’s where he missed conducted himself.
“And he not only made such insinuations he went as ahead as far as going to the courts; naturally in a democracy which we all know is a game of numbers the minority will have its say the majority will have its way.
“What will happen to a minister when in a Federal Executive Council meeting you hold a different view and the majority will also hold a different view after that the view of the majority becomes to position of the federal cabinet and when you leave the federal executive council meeting you go to court.
“What do you think will happen to your position? You will be sacked immediately because you cannot fight the same government that you’re serving.
“So, if you have a different view as long as your view is in the minority, it is on record that you have that view and there it ends.”
Nzeakor said the lawmaker went ahead to “extraneously push his view and ensure that his view gets strength in a court of law.
“Of course, what goes on in the parliament is not in the purview of the court to look into by the doctrine of separation of powers. You don’t look into that except if a particular aspect of the Constitution is breached, that’s when the court is activated/
“When there is no breach of the provision of the Constitution, you don’t just go ahead to activate the court, just for the sake of popularity.
“That is why so many people believe that what the senator did was to play to the gallery and be a good boy to Mr President and then that has cost him his seat in parliament at least for the next 90 days.”
How a legislator ought to be removed
But activist lawyer Femi Falana disagreed.
He interpreted the judicial decisions on suspensions as meaning that lawmakers have no authority to deprive a constituency of representation, either temporarily or permanently.
The lawyer told The Nation that according to the appellate court in Danna’s case, there are two ways by which a lawmaker may be ousted.
Falana said: “An elected legislator can only be removed either by the tribunal or court, or by the constituency that elected him. There is no provision for suspension or removal by the House.
“The Court of Appeal is saying you have shut out the constituency from representation and that is not within the contemplation of the constitution.
“In the Court of Appeal case, a lady legislator was suspended indefinitely for the first year. The Court of Appeal said in that case that the community can even sue on the basis that their right to representation has been violated.”
According to him, lawmakers’ power of suspension for 14 days or for whatever length of time under the Legislative Houses (Power and Privileges) Act 2018, is contrary to the 1999 Constitution (as amended) and therefore void.
Falana said: “Their internal rule cannot take precedence over the Constitution. Their rule has to be subject to the Constitution.
“What we used to think was that they could suspend for 14 days. Under their rule, there is no provision for 90 days or 180 days suspension. But you can’t make it indefinite.
“If a lawmaker errs, they should report him to his constituency. What type of discipline do you want to give him?
“Under the Legislatives Powers and Priviledges Act, a legislator has immunity over whatever he says in the parliament.
“If he makes a statement outside which you don’t like, you go and sue him, because he has freedom of expression guaranteed by the Constitution.
“I don’t know where they have got such powers to summon a member of the public who criticised them or to suspend a member for doing so. In a democracy?”