In the celebrated case of The Speaker,
Bauchi House of Assembly v Honourable Rifkatu Danna (2017)
49 WRN 52 the Court of Appeal affirmed the judgment of the Bauchi
State High Court which had set aside the indefinite suspension of
the respondent as a member of the Bauchi State House of Assembly.
In view of the penchant of the leadership of the current national
assembly to suspend members who express dissenting opinions from
parliamentary business it has become necessary to draw the
attention of legislators and other Nigerians to the current state
of the law.
- On whether the suspension of a legislator does not
amount to a denial of representation by his/her
constituency
“The fact that the respondent was re-elected for another 4 year
term by the people of Bogoro Constituency in Bauchi State to
represent them in the House of Assembly was to ensure that she had
the right to be in the House of Assembly for another 4 year term to
serve the constituency without undue interference. Secondly, it was
to ensure that the constituency is represented in the Bauchi State
House of Assembly for the 4 year lifespan of the Assembly. That is
why section 117(1) of the Constitution provides as follows:
“117(1) Subject to the provisions
of this constitution, every State constituency established in
accordance with the provisions of this part of this chapter shall
return one member who shall be directly elected to a House of
Assembly in such manner as may be prescribed by an Act of the
National Assembly.”
The Bogoro Constituency in Bauchi State has to always have an
elected member representing her interests in the House of Assembly.
That is a constitutional guarantee, a violation of which the
respondent is seeking to be protected in the originating summons
proceedings. But the indefinite suspension of the respondent was a
calculated attempt to silence the respondent from opposing the
relocation of Tafawa Balewa Local Government Headquarters to Bununu
District without the benefit of a dissenting voice. The majority
shall have their way but the minority should be heard….
To suspend the respondent indefinitely is to preclude her from
participating in the deliberations of the Bauchi State House of
Assembly. The resultant effect is to deny Bogoro Constituency
participation in the deliberations of the Assembly through their
chosen representative. But the Bogoro Constituency has the right to
be represented in the Bauchi State House of Assembly.
In my humble opinion, any member of the Bogoro Constituency
could have timeously challenged the indefinite suspension of their
choice representative in the Bauchi State House of Assembly on the
grounds that their accrued rights had been violated or breached by
the appellants. The conduct of the appellants is the tyranny of the
majority against an elected minority of the Bauchi State House of
Assembly. Even where there is a petition to recall a serving member
of the House of Assembly the Independent National Electoral
Commission acts timeously within ninety days of i the date of the
receipt of the petition from the Constituency to fill the vacancy.
See section 110(a) and (b) of the Constitution. That is not so in
this regard.
The exercise carried out by the appellants constitutes a mockery
of democracy. “
- On the fundamental right of a legislator to express
views that are critical of the position of the majority of
parliamentarians
The learned silk cited the South African case of Speaker of the
National Assembly v. Patricia De Lille MP & Anor.
(1999) ZASCA 50; (1999) 4 All SA 241 (A) where the
respondent, a member of the South African National Assembly made a
number of unsubstantiated allegations against other members in the
course of a debate. On being reprimanded by the Speaker, the
respondent unconditionally withdrew her remarks. Despite this, the
South African House of Assembly punished the member by suspension
for fifteen days. The suspension was challenged in the High Court
of Justice. The High Court set aside the suspension. The National
Assembly appealed to the South African Supreme Court. The court
held as follows:
“There is therefore nothing in the “rules and orders” of the
Assembly, which qualifies in any respect relevant to the appeal,
the right to freedom of speech in the Assembly which section 58(1)
guarantees. More directly, there is nothing which provides any
constitutional authority for the Assembly, to punish any member of
the Assembly, for making any speech, through an order suspending
such member from the proceedings of the Assembly. The right of free
speech in the Assembly protected by section 58(1) is a fundamental
right crucial to representative government in a democratic society.
Its tenor and spirit must conform to all other provisions of the
Constitution relevant to the conduct of proceedings in parliament.
In the result, the appellant has failed to persuade me that the
National Assembly had any constitutional authority to suspend the
respondent from the National Assembly in the circumstances
disclosed by the evidence adduced before the High Court.”
Learned silk further referred to Ezeoke v. Makarfi
(1982) 3 NCLR 663 at 674 where Nasir, P.J., held that:
“Section 3 deals with the immunity of members from proceedings
in respect of words spoken in reports to the House or to a
Committee of the House. In view of what I have stated in respect of
the powers and privileges of the Legislature in this country and in
other countries I am of the view that section 3 is not
unconstitutional as suggested by Mr. Akinrinsola. It is fundamental
in any democracy, like our own, that members of the Legislative and
those called upon to speak before the Legislature while the House
is sitting must be free to express their opinion without any fear
of prosecution or any other form of duress…
I had envisaged that the learned silk in the course of argument
would draw attention to provisions of the Constitution or the rules
governing the Bauchi State House of Assembly which empowered
indefinite suspension of a member for purporting to utter
“derogatory” words in the course of a debate but none was referred
to in argument.
Suspension is the act of temporarily depriving a person’s rights
and privileges especially in his office or profession. It should be
the, temporary withdrawal of privileges and rights from either an
employment or an office pending the happening of certain events.
But to suspend a member of a House of Assembly indefinitely since
7th June, 2012 is to muzzle the respondent’s freedom of expression.
It is a violation of the respondent’s constitutional rights and
those of Bogoro Constituency whom the respondent represents in the
Bauchi State House of Assembly.
The word “derogatory” means showing a critical attitude towards
somebody. See Oxford Advanced Learner’s Dictionary, 7th edition,
page 394. If derogatory remarks or comments are not permissible or
tolerated in the Bauchi State House of Assembly, that in itself is
a violation of the freedom of expression; to hold opinions; to
receive and impart ideas, etc, under section 39(1) of the
Constitution.
What the appellants did also constituted an unwarranted attack
on freedom to disseminate information, ideas and opinions. The
respondent is the chosen voice of Bogoro Constituency. The Speaker
and members of the Bauchi State House of Assembly ought not to have
slammed an indefinite suspension on the respondent in this
circumstance where the constituency had an interest to protect. In
a democracy, conscientious objectors must be tolerated. Their
rights must not be trampled upon. The majority may not always be
right. For example in courts, dissenting judgments at times lay the
foundation for amendment of the constitution, statutes or rules by
the legislature. For democracy to nurture in Nigeria the opposition
must be heard…
Articles 8 and 9 of the African Charter on Human and Peoples’
Right (Ratification and enforcement) Act, 1983 guarantees freedom
of conscience, the right to receive and disseminate information and
to express opinions within the ambit of the law. The acts of the
appellants violated these rights without lawful justification.
Section 40 of the Constitution reads as follows:
“40. Every person shall be entitled to assemble freely and
associate with other persons… for the protection of his
interests.”
When the respondent sought to protect the interests of Bogoro
Constituency on the floor of the Bauchi State House of Assembly,
the 1st appellant considered her speech “derogatory,” and clamped
her with indefinite suspension followed by the withholding of her
salaries and allowances since 7th June, 2012. The appellants also
withdrew her driver and compelled her to hand over all properties
in her possession. Not even the Military would have behaved in this
dastardly manner. This is a flagrant abuse of the constitutional
powers vested on the speaker and members of the Bauchi State House
of Assembly which no right – thinking member of the society ought
to tolerate.
In article 11 of the African Charter (supra), the
exercise of this right of freedom to assemble freely with others
shall only be subject to necessary restrictions provided by law.
The circumstances for censorship are set out in the said article
and section 45(1) of the Constitution (supra). The
onus lies on the appellants to show, and this they have
not shown, that the derogatory speech fell within the ambit of the
circumstances provided in article 11 and section 40 of the
Constitution (supra).”
- On the illegality of the illegal suspension of a
legislator from parliament
“Even where the master/servant relationship is established,
there is no implied power for the master to suspend the employee
indefinitely except as provided in a statute or by agreement
between the parties. See Adekunle v. W.R.F.C. (1963) WRWLR
6. Wages and allowances are usually paid during suspension. See
Utit v. Odukpani (1959) 3 ENLR 28 and Hanley v. Peace
Partners (1914 – 1915) All E.R Rep. 984.
In Chief Nzeribe v. Senate President (unreported suit
No. FHC/ABJ/380/2002 of 5th May, 2003 Adah, J., (as he then was)
held that: “An indefinite suspension of the plaintiff therefore is
nothing but an arbitrary show of power and a tyranny of the
majority…. The indefinite suspension of the plaintiff therefore
cannot be justified in this situation. It is therefore void and I
so hold.” I adopt these views as mine.
To suspend the respondent indefinitely is to preclude her from
participating in the deliberations of the Bauchi State House of
Assembly. The resultant effect is to deny Bogoro Constituency
participation in the deliberations of the Assembly through their
chosen representative. But the Bogoro Constituency has the right to
be represented in the Bauchi State House of Assembly.”
- On the right of members of a constituency to sue if
their elected legislator is suspended from parliament
“In my humble opinion, any member of the Bogoro Constituency
could have timeously challenged the indefinite suspension of their
choice representative in the Bauchi State House of Assembly on the
grounds that their accrued rights had been violated or breached by
the appellants. The conduct of the appellants is the tyranny of the
majority against an elected minority of the Bauchi State House of
Assembly. Even where there is a petition to recall a serving member
of the House of Assembly the Independent National Electoral
Commission acts timeously within ninety days of i.e the date of the
receipt of the petition from the Constituency to fill the vacancy.
See section 110(a) and (b) of the Constitution. That is not so in
this regard.
The exercise carried out by the appellants constitutes a mockery
of democracy.”
- On whether the House of Assembly can withhold the
salaries and allowances of a members
“The fixing of the salaries and wages of the respondent, lies
within the province of the Revenue Mobilization Allocation and
Fiscal Commission under section 111 of the Constitution, certainly
not the 1st or 2nd appellants. The 1st and 2 appellants have no
constitutional right or competence to interfere with the salaries
and allowances of the respondent, serving as a member of the State
House of Assembly. No rules or standing orders of the Bauchi State
House of Assembly can derogate from these rights and privileges
conferred on an elected member of the House of Assembly guaranteed
under section 111 of the Constitution (supra)…”
In the celebrated case of The Speaker,
Bauchi House of Assembly v Honourable Rifkatu Danna (2017)
49 WRN 52 the Court of Appeal affirmed the judgment of the Bauchi
State High Court which had set aside the indefinite suspension of
the respondent as a member of the Bauchi State House of Assembly.
In view of the penchant of the leadership of the current national
assembly to suspend members who express dissenting opinions from
parliamentary business it has become necessary to draw the
attention of legislators and other Nigerians to the current state
of the law.
- On whether the suspension of a legislator does not
amount to a denial of representation by his/her
constituency
“The fact that the respondent was re-elected for another 4 year
term by the people of Bogoro Constituency in Bauchi State to
represent them in the House of Assembly was to ensure that she had
the right to be in the House of Assembly for another 4 year term to
serve the constituency without undue interference. Secondly, it was
to ensure that the constituency is represented in the Bauchi State
House of Assembly for the 4 year lifespan of the Assembly. That is
why section 117(1) of the Constitution provides as follows:
“117(1) Subject to the provisions
of this constitution, every State constituency established in
accordance with the provisions of this part of this chapter shall
return one member who shall be directly elected to a House of
Assembly in such manner as may be prescribed by an Act of the
National Assembly.”
The Bogoro Constituency in Bauchi State has to always have an
elected member representing her interests in the House of Assembly.
That is a constitutional guarantee, a violation of which the
respondent is seeking to be protected in the originating summons
proceedings. But the indefinite suspension of the respondent was a
calculated attempt to silence the respondent from opposing the
relocation of Tafawa Balewa Local Government Headquarters to Bununu
District without the benefit of a dissenting voice. The majority
shall have their way but the minority should be heard….
To suspend the respondent indefinitely is to preclude her from
participating in the deliberations of the Bauchi State House of
Assembly. The resultant effect is to deny Bogoro Constituency
participation in the deliberations of the Assembly through their
chosen representative. But the Bogoro Constituency has the right to
be represented in the Bauchi State House of Assembly.
In my humble opinion, any member of the Bogoro Constituency
could have timeously challenged the indefinite suspension of their
choice representative in the Bauchi State House of Assembly on the
grounds that their accrued rights had been violated or breached by
the appellants. The conduct of the appellants is the tyranny of the
majority against an elected minority of the Bauchi State House of
Assembly. Even where there is a petition to recall a serving member
of the House of Assembly the Independent National Electoral
Commission acts timeously within ninety days of i the date of the
receipt of the petition from the Constituency to fill the vacancy.
See section 110(a) and (b) of the Constitution. That is not so in
this regard.
The exercise carried out by the appellants constitutes a mockery
of democracy. “
- On the fundamental right of a legislator to express
views that are critical of the position of the majority of
parliamentarians
The learned silk cited the South African case of Speaker of the
National Assembly v. Patricia De Lille MP & Anor.
(1999) ZASCA 50; (1999) 4 All SA 241 (A) where the
respondent, a member of the South African National Assembly made a
number of unsubstantiated allegations against other members in the
course of a debate. On being reprimanded by the Speaker, the
respondent unconditionally withdrew her remarks. Despite this, the
South African House of Assembly punished the member by suspension
for fifteen days. The suspension was challenged in the High Court
of Justice. The High Court set aside the suspension. The National
Assembly appealed to the South African Supreme Court. The court
held as follows:
“There is therefore nothing in the “rules and orders” of the
Assembly, which qualifies in any respect relevant to the appeal,
the right to freedom of speech in the Assembly which section 58(1)
guarantees. More directly, there is nothing which provides any
constitutional authority for the Assembly, to punish any member of
the Assembly, for making any speech, through an order suspending
such member from the proceedings of the Assembly. The right of free
speech in the Assembly protected by section 58(1) is a fundamental
right crucial to representative government in a democratic society.
Its tenor and spirit must conform to all other provisions of the
Constitution relevant to the conduct of proceedings in parliament.
In the result, the appellant has failed to persuade me that the
National Assembly had any constitutional authority to suspend the
respondent from the National Assembly in the circumstances
disclosed by the evidence adduced before the High Court.”
Learned silk further referred to Ezeoke v. Makarfi
(1982) 3 NCLR 663 at 674 where Nasir, P.J., held that:
“Section 3 deals with the immunity of members from proceedings
in respect of words spoken in reports to the House or to a
Committee of the House. In view of what I have stated in respect of
the powers and privileges of the Legislature in this country and in
other countries I am of the view that section 3 is not
unconstitutional as suggested by Mr. Akinrinsola. It is fundamental
in any democracy, like our own, that members of the Legislative and
those called upon to speak before the Legislature while the House
is sitting must be free to express their opinion without any fear
of prosecution or any other form of duress…
I had envisaged that the learned silk in the course of argument
would draw attention to provisions of the Constitution or the rules
governing the Bauchi State House of Assembly which empowered
indefinite suspension of a member for purporting to utter
“derogatory” words in the course of a debate but none was referred
to in argument.
Suspension is the act of temporarily depriving a person’s rights
and privileges especially in his office or profession. It should be
the, temporary withdrawal of privileges and rights from either an
employment or an office pending the happening of certain events.
But to suspend a member of a House of Assembly indefinitely since
7th June, 2012 is to muzzle the respondent’s freedom of expression.
It is a violation of the respondent’s constitutional rights and
those of Bogoro Constituency whom the respondent represents in the
Bauchi State House of Assembly.
The word “derogatory” means showing a critical attitude towards
somebody. See Oxford Advanced Learner’s Dictionary, 7th edition,
page 394. If derogatory remarks or comments are not permissible or
tolerated in the Bauchi State House of Assembly, that in itself is
a violation of the freedom of expression; to hold opinions; to
receive and impart ideas, etc, under section 39(1) of the
Constitution.
What the appellants did also constituted an unwarranted attack
on freedom to disseminate information, ideas and opinions. The
respondent is the chosen voice of Bogoro Constituency. The Speaker
and members of the Bauchi State House of Assembly ought not to have
slammed an indefinite suspension on the respondent in this
circumstance where the constituency had an interest to protect. In
a democracy, conscientious objectors must be tolerated. Their
rights must not be trampled upon. The majority may not always be
right. For example in courts, dissenting judgments at times lay the
foundation for amendment of the constitution, statutes or rules by
the legislature. For democracy to nurture in Nigeria the opposition
must be heard…
Articles 8 and 9 of the African Charter on Human and Peoples’
Right (Ratification and enforcement) Act, 1983 guarantees freedom
of conscience, the right to receive and disseminate information and
to express opinions within the ambit of the law. The acts of the
appellants violated these rights without lawful justification.
Section 40 of the Constitution reads as follows:
“40. Every person shall be entitled to assemble freely and
associate with other persons… for the protection of his
interests.”
When the respondent sought to protect the interests of Bogoro
Constituency on the floor of the Bauchi State House of Assembly,
the 1st appellant considered her speech “derogatory,” and clamped
her with indefinite suspension followed by the withholding of her
salaries and allowances since 7th June, 2012. The appellants also
withdrew her driver and compelled her to hand over all properties
in her possession. Not even the Military would have behaved in this
dastardly manner. This is a flagrant abuse of the constitutional
powers vested on the speaker and members of the Bauchi State House
of Assembly which no right – thinking member of the society ought
to tolerate.
In article 11 of the African Charter (supra), the
exercise of this right of freedom to assemble freely with others
shall only be subject to necessary restrictions provided by law.
The circumstances for censorship are set out in the said article
and section 45(1) of the Constitution (supra). The
onus lies on the appellants to show, and this they have
not shown, that the derogatory speech fell within the ambit of the
circumstances provided in article 11 and section 40 of the
Constitution (supra).”
- On the illegality of the illegal suspension of a
legislator from parliament
“Even where the master/servant relationship is established,
there is no implied power for the master to suspend the employee
indefinitely except as provided in a statute or by agreement
between the parties. See Adekunle v. W.R.F.C. (1963) WRWLR
6. Wages and allowances are usually paid during suspension. See
Utit v. Odukpani (1959) 3 ENLR 28 and Hanley v. Peace
Partners (1914 – 1915) All E.R Rep. 984.
In Chief Nzeribe v. Senate President (unreported suit
No. FHC/ABJ/380/2002 of 5th May, 2003 Adah, J., (as he then was)
held that: “An indefinite suspension of the plaintiff therefore is
nothing but an arbitrary show of power and a tyranny of the
majority…. The indefinite suspension of the plaintiff therefore
cannot be justified in this situation. It is therefore void and I
so hold.” I adopt these views as mine.
To suspend the respondent indefinitely is to preclude her from
participating in the deliberations of the Bauchi State House of
Assembly. The resultant effect is to deny Bogoro Constituency
participation in the deliberations of the Assembly through their
chosen representative. But the Bogoro Constituency has the right to
be represented in the Bauchi State House of Assembly.”
- On the right of members of a constituency to sue if
their elected legislator is suspended from parliament
“In my humble opinion, any member of the Bogoro Constituency
could have timeously challenged the indefinite suspension of their
choice representative in the Bauchi State House of Assembly on the
grounds that their accrued rights had been violated or breached by
the appellants. The conduct of the appellants is the tyranny of the
majority against an elected minority of the Bauchi State House of
Assembly. Even where there is a petition to recall a serving member
of the House of Assembly the Independent National Electoral
Commission acts timeously within ninety days of i.e the date of the
receipt of the petition from the Constituency to fill the vacancy.
See section 110(a) and (b) of the Constitution. That is not so in
this regard.
The exercise carried out by the appellants constitutes a mockery
of democracy.”
- On whether the House of Assembly can withhold the
salaries and allowances of a members
“The fixing of the salaries and wages of the respondent, lies
within the province of the Revenue Mobilization Allocation and
Fiscal Commission under section 111 of the Constitution, certainly
not the 1st or 2nd appellants. The 1st and 2 appellants have no
constitutional right or competence to interfere with the salaries
and allowances of the respondent, serving as a member of the State
House of Assembly. No rules or standing orders of the Bauchi State
House of Assembly can derogate from these rights and privileges
conferred on an elected member of the House of Assembly guaranteed
under section 111 of the Constitution (supra)…”
Read more https://nairalaw.com/illegal-suspension-of-legislators-in-nigeria-by-femi-falana-san/