The governor of Cross River State, Senator Professor Benedict Ayade came back to Calabar a few days ago after about two months out of the country and out of the State. I thought everyone will be happy to see the Governor and just let things be. Or if anything at all, we should be asking the Governor what he did with his time out of the country. But John Gaul Lebo, the speaker of CRSHA had other plans.
He stirred the hornets’ nest with a very contradictory and self-indicting article in ThisDay. These comments credited to the Speaker opened up the heated conversation. Personally I did an article about the constitutionality or otherwise of the governor’s long absence. But due to the new vistas this reopened debate has thrown up, I decided to lean in, even if it means re-adumbrating on some already adumbrated points in my last article.
ThisDay wrote: reacting to his return yesterday, the Speaker of the State House of Assembly, John Gaul Lebo, said that the lawmakers were comfortable with his long absence since he did not violate the constitution. Lebo said normal functions of government were on course during his absence. He said, “The governor was not out for two months. He was on official outing. If the governor was not communicating with anybody during this period, and if the deputy and commissioners were not aware of his movements, and if salaries were not paid and other functions of government were hindered, we would have invoked section 190 sub 2 of the constitution against him. But in this circumstance, we were in touch with him. The assembly was comfortable with his foreign trips. If he was out for too long, the court of public opinion had the moral right to set the standard and agitate…. But he did not violate the constitution. The House of Assembly met at an executive session when the Governor was out for 21 days and reviewed relevant sections of the federal constitution and other legal instruments available. It was clear to us that the governor did not violate any part of the constitution. His absence was a moral issue, not the one that requires us to invoke powers of the constitution.”
One will only want to crucify the speaker if you don’t understand him. There is nowhere in the above quote where the speaker said the Governor was right for staying so long out of the country. He said it is a moral issue; meaning he accepts that it was wrong. His only headache was that he couldn’t find a constitutional solution.
And he confessed that they actually searched for a constitutional solution. Hear him: “The House of Assembly met at an executive session when the Governor was out for 21 days and reviewed relevant sections of the federal constitution and other legal instruments available. It was clear to us that the governor did not violate any part of the constitution. His absence was a moral issue, not the one that requires us to invoke powers of the constitution.” They met and searched the constitution because they knew the Governor’s long absence was wrong strictu senso.
Now was the failure of the lawmakers to find a constitutional solution to a problem they confessed to have identified due to the fact that it wasn’t there or because they didn’t want to see it? Come, let us join the lawmakers in searching the constitution to see if we will find the constitutional solution… at least for the sake of tomorrow.
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 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 was Ayade unable to discharge his executive functions by his continuous absence? Bear in mind that Ayade was about the only Governor that missed the National Economic Council meeting. Constitutionally Ayade is a member of the Council. Maybe he considered his foreign trips more important than this meeting. Be that as it may, if we cannot find the answer to that question is not found in the letters of the Constitution we will find it 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 were faced with the same circumstances in Cross River State: speculations. The simple fact is that no one really knew where Ayade was and what he went for. Just speculations and counter speculations. What we are being told is that he went on an investment drive to 10 countries? Which countries? Who went with him? For about two months? And we are supposed to believe this vague and scanty news? Is it too much to ask for more details?
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.
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 recent absence from Calabar.
Assuming without conceding that John Gaul Lebo and his fellow lawmakers didn’t see all these in the constitution, is declaring helplessness after admitting the Governor’s long absence is a moral issue the right thing to do? Why not invoke the doctrine of necessity as the Senate did in the Yaradua era? The legislature is the first estate of the realm and such show of weakness, such helplessness is totally unacceptable.
Some persons have postulated that the Governor can rule from anywhere due to globalization and digitalization. With the deepest respect, I submit that this argument is slow motion idiocy. The requirements of having a state is to have a physical population and a physical territory. The digital space will never substitute these physical requirements.
Facebook has over a billion people but that has not made Facebook a country, a state or even a local government; it has not made Mark Zuckerberg a president, a governor or even a mayor. If you agree that a governor can stay away for months and rule a state through phone calls, then, I guess you will also agree that the Supreme Court Justices can travel to Hawaii and deliver their judgments through WhatsApp. How ridiculous!
Also, arguing that “everything was working fine” in the state in the governor’s absence so we don’t have to worry is an argument that has its place in stand-up comedy. Apart from the fact that “everything was working fine” is an assertion cloaked in subjective sentimentality that should not even be a consideration. Even if a state is flourishing in a governor’s absence, that absence must be questioned; especially when it is long and unaccounted for.
Governance in absentia is a concept unknown to the democratic world. Even monarchies frown at this concept. And more importantly, it is a concept not within the contemplation of our laws. That is why there is a provision for a Deputy Governor. After marshalling all the arguments for and against, the big unanswered question is that why was it so difficult to transmit power to the deputy Governor?
Let’s be careful how we break the law to suit our commentaries, lest, one day the law will break us to discard our commentaries.
[As for the comparison between PMB and Ayade’s foreign trips, watch out for my next article].
First Baba Isa (FBI) is a Legal Practitioner and writes from Abuja
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