By Our Correspondent
A legal practitioner, Barrister Michael Ukusare has blasted the Delta State House of Assembly for the continued suspension of the embattled Uvwie council boss, Hon. Henry Baro.
Barr. Ukusare stated this in a press statement made available to our correspondent in Warri, Delta State.
He said: “It has been months since the Uvwie Local Government Chairman, Hon. Henry Baro was purportedly suspended from office by the action of the Delta State House of Assembly (DTHA) under an investigative procedure which has turned out to be endless.”
He regretted that despite series of calls for the DTHA to review its stands on Mr. Henry Baro, the House still stood its ground, adding that as a legal practitioner, “I have looked the Laws on the subject and will be failing in my social onus if I neglect to shed some light on the legality or otherwise of the decision of the DTHA; having also taking a stand on the matter at an earlier occasion.”
The statement reads:”No one doubts the power of the Delta State House of Assembly or indeed the Governor to launch an investigation into the activities of any Local Government Official or Council. The power of the DTHA is provided for in section 128 (1) Constitution of the Federal Republic of Nigeria, 1999 read together with section 11(1)(3) of the Delta State Local Government Law, 2013.
“For the avoidance of doubt, in the case of Hon. Moro Reginald Donbraye & Anor. vs. Hon. Kenneth Oboro Preyor & 5 ors reported in (2015) ALL FWLR (PT 774) Page 127 at 172 Paras F-G; The Court of Appeal Benin held:
“The purpose of the Investigative Power conferred on the House of Assembly under section 128 (2)(b) of the CFRN, 1999, especially is to enable the house to expose corruption, inefficiency or waste in the execution or administration of law within its legislative competence and in the disbursement or administration of funds appropriated by it.
“Proceeding further, the court of Appeal at Page 172 Paragraph G-H said:“There is nothing in section 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999 which suggest that a House of Assembly can indict any person in the exercise of its Investigative Powers Conferred on it by the Constitution”.
“From the foregoing decided case, while it is conceded that the House of Assembly can Investigate an official of the Local Government, such investigation cannot amount or give rise to an indictment beyond the very essence of the Investigation which is to expose corruption, inefficiency e.t.c.
“Like the DTHA, the Governor of the State has power pursuant to section 11(2) and (3) of the Delta State Local Government Law, 2013 set up a panel of inquiry into the conduct of any public officer of a Local Government Council on any matter relating to the affairs of the Local Government Council.
“By virtue of the foregoing, under the Local Government Law, 2013, a Local Government Chairman or Vice-chairman can be called to question by process of Investigation which is done by the House of Assembly or by process of inquiry which is done by the Governor. For the avoidance of doubt, section 11(1) and (2) of the Local Government Law, 2013 provides:
“ (1) For purposes of enabling the House to expose corruption, inefficiency or waste in the administration or execution of this Law or any other Law affecting Local Government administration generally, the House shall have power to investigate the affairs of any person or Local Government Council or any Department or Authority of the Council charged with the duty or responsibility for executing or administering this Law and any other Law affecting Local Government Councils.
(2) The Governor may, whenever desirable, set up a panel of inquiry into the conduct of any public officer of a local Government Council on any matter relating to the affairs of a Local Government Council.”
“The process of Investigation by the House of Assembly can be taken suo motu (on its own volition) by the House of Assembly pursuant to section 11(1) of the Delta State Local Government Law, 2013 or by the House of Assembly upon receipt of resolution of the legislative House of the Local Government Council pursuant to section 31(2) and (3) of the DSLGL, 2013.
“The consequence/effect of an Investigation by the House of Assembly; and an inquiry by the Governor are provided for in section 30(1) and section 31(6) of the Delta State Local Government Law, 2013.
Where the Local Government Chairman is under Investigation suo motu by the House of Assembly or under inquiry by the Governor, he or she is to proceed on compulsory leave and not suspension. See section 30(1) of the Delta State Local Government Law, 2013 which provides as follows:
“A Local Government Chairman or vice Chairman when under inquiry or Investigation shall be placed on compulsory leave by the House pending the completion of the inquiry or investigation”.
“However, where the investigation is as a result of a procedure initiated by the legislative House of the Local Government Council, pursuant to section 31(2) and (3) of the Delta State Local Government Law, 2013, the chairman or whoever is under investigation shall be placed immediately on suspension pending the outcome of the investigation. For the avoidance of doubt section 31(6) provides;
“Where a Chairman or vice Chairman as the case maybe, is under Investigation as provided for in sub section (2) of this section, he shall be placed immediately on suspension pending the outcome of the investigation”.
The section referred to above is section 31 of the DSLGL, 2013 which talks about removal of the Chairman or Vice-Chairman from office for reason of misconduct relating to asset declaration, breach of oath of allegiance and breach of the Local Govt. Law. A chairman or vice-chairman cannot be investigated under that section without 2/3 majority affirmative action of the elected councillors of the Local Government Council.
“A Chairman or vice Chairman as the case may be can only be placed on suspension if his or her investigation by the House of Assembly is a product of a resolution from the legislative House of the Local Government Council.
In the absence of any such resolution of the Legislative House of the Local Government Council, an investigation undertaken by the House of Assembly on its own volition can only attract compulsory leave for the Local Government Chairman or vice-chairman.
“There is a world of difference between ‘leave’ and ‘suspension’. The drafts-men were careful and consciously introduced the two words in the legislation. Suspension is the act of officially removing somebody from job for a period of time, usually as a punishment. Leave, on the other hand, is a period of time when a person is allowed to be away from work for a special reason. Whereas suspension carries with it an element of punishment, leave does not. An officer on leave is entitled to benefits and allowances accruing from his office but an officer on suspension may be deprived.
“It is beyond doubt that the legislative House-the body of elected Councillors of the Uvwie Local Government Council is not involved in the process leading to the suspension of the Chairman; Hon. Henry Baro.
“To the extent therefore that the legislative House of the Uvwie Local Government Council is not involved in the process; in that there is no resolution supported by two-third majority of the elected councillors, the handing down of a suspension order by the Delta State House of Assembly is Ultra vires (beyond their powers ).
“I hope the Delta State House of Assembly will, in due course put illegality to shame and review its decision and re-instate the Hon. Henry Baro to his office as Chairman, Uvwie Local Government Council.”
