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AYADE’S CONTINUOUS ABSENCE, THE CALL FOR HIS IMPEACHMENT BY OBONO-OBLA AND THE RHEMA OF THE CONSTITUTION

by on March 12, 2016
 

The Governor of Cross River State, HE Prof Senator Ben Ayade has been out of the State and the country for over a month now. His supporters and media aides say he is out there doing the state’s business, while members of the opposition will tell you that he is taking a medically recommended vacation.

I hold that this industrious speculation is fertilized by the vacuum in communication created by the Governor and his media handlers. Assuming without yet conceding that the Governor is out of the country doing the bidding of the State, why is it that Cross Riverians don’t know exactly where the Governor is? Why are we not being told what business he is up to for our good? What good exactly? Who did he travel with? And when will he be back?

In the light that answers to these questions are not readily available or satisfactorily accepted can Ayade remain our Governor constitutionally? Or can he govern Cross River State from nowhere and everywhere? Let’s consult our almighty Constitution for answers.

Sections 190 subsections 1 and 2 of the 1999 Constitution as amended provides that: (1) “Whenever the Governor is proceeding on vacation or is otherwise unable to discharge the functions of his office, he shall transmit a written declaration to the Speaker of the House of Assembly to that effect, and until transmit to the Speaker of the House of Assembly a written declaration to the contrary, the Deputy Governor shall perform the functions of the Governor as acting Governor.

(2) In the event that the Governor is unable or fails to transmit the written declaration mention in subsection (1) of this section within 21 days, the House of Assembly shall by a resolution made by a simple majority of the vote of the House, mandate the Deputy Governor to perform the functions of the office of the Governor as acting Governor, until the Governor transmits a letter to the Speaker that he is now available to resume his functions as Governor.”

The world has become a one room apartment and it will be outrageous to even contemplate that the constitution recommends that whenever a Governor travels he should automatically relinquish powers to the Deputy Governor. A Governor in Paris attending a meeting or talking to investors on behalf of the state is still the Governor of the State within the contemplation of the above sections and cosmopolitan trajectory of world politics.

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But the provisions of the above sections are crystal clear: when the Governor is proceeding on vacation or otherwise unable to perform his duties then his powers should devolve on the Deputy Governor via the instrumentality of a letter transmitted by the Governor or the fiat of the House Assembly. A line in Section 190 (1) says “…or is otherwise unable to discharge the functions of his office…”

So is Ayade unable to discharge his executive functions by his continuous absence? The answer to that question is not found in the letters of the Constitution but in the realm of circumstantial evidence. So we will look at similar circumstances in recent history to answer this burning question.

Sections 190 of the 1999 Constitution as amended is a product of circumstances. This amendment became necessary because of what happened during President Yaradua’s era. The president travelled out of the country without transmitting a letter to the National Assembly to devolve his powers on the Vice President. No one knew where he went to and what he went for. Speculations were rift. Some said he was sick. Others said he travelled for state business.  At the height of it, the National Assembly had to invoke the Doctrine of Necessity to make the then Vice President, Goodluck Jonathan, the acting President.

I think we are faced with the same circumstances right now in Cross River State: speculations. The simple fact is that no one seems to know where Ayade is and what he went for. Just speculations and counter speculations. By a rule or canon of statutory interpretation known as the mischief rule we can hazard a guess of how section 190 will be interpreted by a judge in the present Ayade’s case.

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The Mischief Rule (or the rule in Heydon’s case) is used when words are unclear by considering the history of the intention of the legislature and the mischief (wrong) it was meant to address in order to give effect to it. The Courts will interpret the mischief to advance the remedy. [See Haydon’s Case; Smith V. HUGHES and SAVANAH BANK V. AJILO]

Applying the mischief rule in interpreting section 190 of the Constitution you will see that the line “…or is otherwise unable to discharge the functions of his office…” is applicable to Ayade and his continuous absence from Calabar. So what should happen? Should he be impeached as proposed by the SA to the AGF, Chief Okoi Obono-Obla?

The call for impeachment cannot be dismissed with a wave of the hand when one considers the grave allegation that in the absence of the Governor, the State is being administered by his younger brother, Frank Ayade; whom the Governor is alleged to have called a “Co-Governor”. We cannot pretend that this anomaly doesn’t exist.

This call for impeachment is not surprising coming from chief. He is an iconoclastic enigma. He got established taking on the establishment and still has a trenchant penchant for same. That is why a lot of people love him and that is why young lawyers like us model him. However impeaching the governor will throw a political convulsion that is tribal in depth, sectional in height, parochial in weight, unsettling in breadth and hyper-radical in complexion. Thank God the House of Assembly will not be brave enough to tow this line.

Be that as it may, the Constitution is section 190 (2) has already provided a solution and it is not impeachment. The said section said “In the event that the Governor is unable or fails to transmit the written declaration mention in subsection (1) of this section within 21 days, the House of Assembly shall by a resolution made by a simple majority of the vote of the House, mandate the Deputy Governor to perform the functions of the office of the Governor as acting Governor, until the Governor transmits a letter to the Speaker that he is now available to resume his functions as Governor.”

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The ball is now effectively in the court of the CR House of Assembly. In the course of this our democratic sojourn, many times the legislative arm of government has been called upon by providence and circumstances to stand up and defend our democracy. Today might be the turn of the CRSHA. Today might pass. It might be tomorrow. But when the day finally comes, let the CRSHA not miss their fine hour.

And let us too not miss our fine hour. Let us not be blinded by sycophancy and primordial sentiments of nepotism. Let’s support the Governor to keep working hard for our collective good. Let the laws of the land be respected. Let the quality of our communication be improved. Let no Cross Riverian try to excuse the unconstitutionality of the Governor making his brother a co-governor with all the paraphernalia to go with it.

The sound of Frank Ayade’s siren is a sound of shame and a warning that unless we stand together to uphold what is good and condemn what is bad our beloved Cross River State will soon become a quintessential example of a state where vulgarity and impunity is the master of ceremony and chairman of the occasion.

 

First Baba Isa (FBI) is a Legal Practitioner and writes from Abuja

meandisa@gmail.com

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@firstbabaisa

 

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