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What 2/3rd Majority Of All
Members Means
culled from THISDAY, November 8,
2006
In his advertorial in THISDAY
Newspaper of 11 October, 2006, duly signed by him, Hon.Dapianlong of the
Plateau State House of Assembly clearly stated that following the vacation
of the seats of fourteen of the members, "there are only 10 valid members of
the House of Assembly of Plateau State. The quorum for the House is
therefore now 4 members, while % of the House is 6 members," which was the
number of members that passed the resolution adopted on 13 October, 2006,
that the allegations of gross misconduct against Governor Dariye be
investigated.
The assumption that the membership of the House is now reduced from 24 to 10
because of the purported vacation of the seats of 14 members is a fallacy
because it is a perverted interpretation of two-thirds of ALL the members of
the House as required by section 188(4) - even supposing the vacation of the
seats of 14 members to be constitutionally valid, as it definitely is not,
as will be shown later. The Constitution draws a clear distinction between
"two thirds majority of members" (without the word ALL), used in ten
provisions of the Constitution - sections 8(l)(a) & (d), 8(3)(a) & (d),
8(4)(a), 50(2)(c), 90(2)(c), 59(4) and 305(4) - and two-thirds majority of
ALL the members, used in seven provisions - section 9(2) & (3), 143(4) &
(9), 188(4) & (9) and 305(6)(b)."
The Constitution cannot have intended the distinction to be a distinction
without a difference, and the difference is unequivocally underscored by
section 9(4) - section 9(2) & (3) is one of the provisions in which the
phrase two-thirds majority of ALL of the members is used. Section 9(4)
provides: "For the purposes of ......... subsections (2) and (3) of this
section, the number of members of each House of the National Assembly shall,
notwithstanding any vacancy, be deemed to be the number of members specified
in sections 48 and 49 of this Constitution." (emphasis supplied).
Sections 48 and 49 specify the number of members of the Senate and the House
of Representative as 109 and 360 members respectively.
This provision is an unmistakable guide to the meaning of the word ALL in
all seven provisions in which the phrase two-thirds majority of all the
members is used. It means, in relation to section 188(4) and (9), two-thirds
majority of the membership of the Plateau State House of Assembly prescribed
in section 91 (i.e. 24) "notwithstanding any vacancy", however caused,
whether by death, resignation, expulsion, vacation of seats under section
109 or recall of a member under section 110.
Contrary to Dapianlong's argument in the same advertorial in THISDAY
Newspaper of 11 October, 2006, the vacation of the fourteen members' seats
is not "automatic upon any of the events in subsection (1) a to h" of
section 109 of the Constitution, one of the events so specified being that a
"person whose election to the House of Assembly was sponsored by a political
party has become a member of another political party", provided that that
was not as "a result of a division in the political party of which he was
previously a member." The Speaker is required by section 109(2) and is
therefore under a duty to give effect to subsection (1) (a) to (h), but only
if "the Speaker or a member shall first present evidence satisfactory to the
House that any of the provisions of that subsection has become applicable in
respect of the member." Thus, there are two conditions before a member's
seat can be vacated by the happening of any of the events specified in
section 109(1) (a) - (h).
First, the provision in section 109(2) that "the Speaker of the House of
Assembly shall give effect to subsection (1) of this section" makes it clear
that the provisions of section 109(1), i.e. the events specified in
paragraphs (a) to (h), are not automatic or self-executing; they require to
be given effect to by the Speaker before a member's seat can be "vacated" by
the happening of any of those events. If the Speaker fails, refuses or
neglects to carry out the duty thus cast upon him, he may be compelled by
mandamus to do so. If a member becomes a member of another legislative
house, President, Governor or minister, etc., he remains still nominally a
member until his seat is formaIly "vacated" by the Speaker giving effect to
subsection (1). That is the clear command of the Constitution."
Sections 48 and 49 specify the number of members of the Senate and the House
of Representative as 109 and 360 members respectively.
This provision is an unmistakable guide to the meaning of the word ALL in
all seven provisions in which the phrase two-thirds majority of all the
members is used. It means, in relation to section 188(4) and (9), two-thirds
majority of the membership of the Plateau State House of Assembly prescribed
in section 91 (i.e. 24) "notwithstanding any vacancy", however caused,
whether by death, resignation, expulsion, vacation of seats under section
109 or recall of a member under section 1 10.
Contrary to Dapianlong's argument in the same advertorial in THISDAY
Newspaper of 11 October, 2006, the vacation of the fourteen members' seats
is not "automatic upon any of the events in subsection (1) a to h" of
section 109 of the Constitution, one of the events so specified being that a
"person whose election to the House of Assembly was ponsored by a political
party has become a member of another political party", provided that that
was not as "a result of a division in the political party of which he was
previously a member." The Speaker is required by section 109(2) and is
therefore under a duty to give effect to subsection (1) (a) to (h), but only
if "the Speaker or a member shall first present evidence satisfactory to the
House that any of the provisions of that subsection has become applicable in
respect of the member." Thus, there are two conditions before a member's
seat can be vacated by the happening of any of the events specified in
section 109(1) (a) - (h).
First, the provision in section 109(2) that "the Speaker of the House of
Assembly shall give effect to subsection (1) of this section" makes it clear
that the provisions of section 109(1), i.e. the events specified in
paragraphs (a) to (h), are not automatic or self-executing; they require to
be given effect to by the Speaker before a member's seat can be "vacated" by
the happening of any of those events. If the Speaker fails, refuses or
neglects to carry out the duty thus cast upon him, he may be compelled by
mandamus to do so. If a member becomes a member of another legislative
house, President, Governor or minister, etc., he remains still nominally a
member until his seat is formally "vacated" by the Speaker giving effect to
subsection (1).
That is the clear command of the
Constitution. The provision embodied in section 109(2) may appear otiose;
on the contrary, it has a significance that lies deep in history. A
parliamentary seat is an office of a peculiar kind distinguished by its
historical antecedents which require that the Speaker, as the custodian of
the House, its customs and the seats of its members, must be associated in
the vacation of any of the seats. A parliamentary seat is not vacated as any
other office may be vacated; by tradition, the Speaker, as the custodian of
a seat in parliament, must, by a formal act, "give effect" to its vacation.
That is the historical explanation and rationale for the provision in
section 109(2) which needs to be appreciated for a proper understanding of
it. Section 109(2) is part of our inheritance from British constitutional
practice.
Second, before giving effect to subsection (1), "the Speaker or a member
shall first present evidence satisfactory to the House that any of the
provisions of that subsection has become applicable in respect of the
member." There is of course the question, which is pending in the Federal
High Court los, whether the event specified in section 109(1 )(g has
happened, i.e. whether the fourteen members' leaving the PDP is as a result
of a division in the party, as the fourteen members stated in their
Statement of Claim and affidavit in support of the suit referred to above.
The provision embodied in section 109(2) may appear otiose; on the contrary,
it has a significance that lies deep in history. A parliamentary seat is an
office of a peculiar kind distinguished by its historical antecedents which
require that the Speaker, as the custodian of the House, its customs and the
seats of its members, must be associated in the vacation of any of the
seats. A parliamentary seat is not vacated as any other office may be
vacated; by tradition, the Speaker, as the custodian of a seat in
parliament, must, by a formal act, "give effect" to its vacation. That is
the historical explanation and rationale for the provision in section 109(2)
which needs to be appreciated for a proper understanding of it. Section
109(2) is part of our inheritance from British constitutional practice.
Second, before giving effect to subsection (1), "the Speaker or a member
shall first present evidence satisfactory to the House that any of the
provisions of that subsection has become applicable in respect of the
member."
There is of course the question, which is pending in the Federal High Court
Jos, whether the event specified in section 1O9(1)(g has happened, i.e.
whether the fourteen members' leaving the PDP is as a result of a division
in the party, as the fourteen members stated in their Statement of Claim and
affidavit in support of the suit referred to above.
• Nwabueze (SAN), is a Professor of Law
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