Tuesday, January 8, 2013

Ailing Governors: Constitution without Constitutionalism


2012 was indeed an eventful and terrible year for Nigeria’s Governors Forum (NGF). Not only did the Forum lost one of its own, Governor Patrick Yakowa of Kaduna State to the cold hands of death via an helicopter crash on December 15, 2012; no fewer than four of its members are also facing serious health challenges. They are Governors Sullivan Chime of Enugu State, Danbaba Suntai of Taraba, Liyel Imoke of Cross River and Idris Wada of Kogi State. While Sullivan is purportedly receiving treatment in India, Liyel is reported to be undergoing Medicare in United States of America, while Danbaba and Idris are receiving medical attention in Germany and Nigeria respectively as a result of injuries they suffered in plane and car crashes. Governor Suntai had a plane crash on October 25 while Governor Wada’s had a car crash on December 28, 2012.
Indeed, the unexpected do happen which is why Nigeria’s grundnorm (the 1999 Constitution as amended) has provisions on what to do when the unforeseen calamity such as sudden death or  incapacitation as a result of prolonged sickness or accidents happen.  When the sudden demise of a State executive occur as it had on few occasions such as ex-Governor Shehu Kangiwa of Sokoto State during the Second Republic; ex-Governor Mamman Ali of Yobe State and ex-Governor Patrick Yakowa of Kaduna State  during this Fourth Republic  the transition of power to their deputies is very smooth. When the governors are elevated to Vice Presidency as had happened in the case of former Vice President Atiku Abubakar and incumbent Vice President Namadi Sambo; their deputies also naturally took over the reins of power as the governor. Even when governors are impeached as with the case of DSP Alamiesiegha of Bayelsa State, the deputy takes over except when state of emergency is declared as was the case in Plateau State under former governor Joshua Dariye and in Ekiti under former governor Ayo Fayose.
The power game changes when it comes to governors transmitting powers to their deputies when they are going on annual vacation; sick leave or incapacitated to govern as a result of accidents.  This is the scenario playing out in some of the states at present. The states include Enugu, Taraba and Kogi.  News report has it that Governor Sullivan Chime transmitted a letter to the Enugu State House of Assembly Speaker that he is going on accumulated six weeks annual leave from September 19, 2012. More than 100 days after the governor left the shores of Nigeria for abroad he is yet to be sighted in Enugu, the state he was elected to govern.
Controversies had ensued on whether Governor Chime actually handed the reins of governance to his deputy, Sunday Onyebuchi when he was leaving for his purported annual vacation in US. While some said Mr. Onyebuchi is acting governor, many are quick to say he remains Deputy Governor. A similar scenario is playing out in Taraba. Aftermath of the October 25, 2012 plane crash involving Governor Suntai, the Taraba State House of Assembly dilly-dallied for weeks before eventually passing a resolution on November 14 empowering the State’s Deputy Governor Garba Umar as acting governor. In Kogi State, despite the hospitalization of Governor Idris Wada as a result of injuries sustained from the ghastly motor accident, his deputy, Architect Yomi Awoniyi was not sworn in as acting governor. Though the governor has been discharged from hospital after five days, it was reported that his injuries may take about six months to heal properly. 
Legally, the 1999 Constitution of Nigeria as amended in section 191(1) gave five grounds under which a deputy can become a governor. These are on the ground of death, resignation, impeachment, permanent incapacity or removal of Governor from office for any other reason in accordance with section 188 or 189 of the constitution. Section 190 (1)(2) of the constitution, as amended, stipulates that the deputy governor should take over if the governor is on leave or is unable to discharge the function of his office. Sub-section 1 reads: “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 he transmits 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.”
Subsection 2 reads: “In the event that the Governor is unable or fails to transmit the written declaration mentioned in sub-section (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.”
In the same vein, Section 145 sub-section two of the constitution as amended stipulates that the Vice-President becomes acting president if the President is not available for 21 days. The rationale behind these subsections is well known to discerning public. It was borne out of the political logjam engendered by the ill-health of former President Umaru Musa Yar’Adua in 2009 which necessitated the invocation of the Doctrine of Necessity by the National Assembly that empowers the incumbent president to become acting president then.
Another way the Deputy Governor could become a governor is if the State executive council decided to give effect to section 189 of the 1999 Constitution as amended.  That section says the governor or deputy governor of a state shall cease to hold office if by a resolution passed by two-thirds majority of all members of the executive council of the state (i.e. the body of commissioners of the Government of the State) it is declared that the governor or deputy governors is incapable of discharging the functions of his office. This declaration has to, however, be verified by a medical panel of five (one of who must be the personal physician of the holder of the office concerned) to be appointed by the Speaker of the State House of Assembly. Will the Enugu, Taraba and Kogi states executive council and their Assembly Speakers toe this line? This is doubtful given the overbearing influence that governors wield on their cabinet and their state houses of assembly. It would be recalled that in 2010, state house of assembly overwhelmingly rejected financial autonomy for themselves during the constitution review exercise on the prompting of their governors. Perhaps, it is in order to forestall their impeachment threats on the ground of incapacitation that made some of the loyalists of Governor Chime to announce that the governor has concluded plan to arrive Enugu State on December 31, 2012. This proved to be a hoax. Similarly, picture of ailing Governor Suntai suddenly appeared on the internet and Nigerian newspapers on January 2, 2013. In the picture, Governor Sunta was seeing seated and flanked by his wife and a friend while carrying one of his twins on his lap.
Superstition and distrust of associates and opposition made many governors not to be straightforward in coming out clean to the public about their state of health. Unlike in many advanced countries where there are official press releases about the state of health of their president and governors; in Nigeria, the reverse is the case. For instance, Venezuelan authorities have been making regular public disclosures about the health status of their president, Hugo Chavez who is receiving treatment for cancer in Cuba; the health status of former president Nelson Mandela of South Africa as well as that of United State Secretary of States, Senator Hilary Clinton who had a blood clot in the head had been a subject of public discourse as facts and status update are made available by their respective governments.
In Nigeria, the health statuses of our public officials are always confidential even when they are on admission in the hospital. This was the scenario under erstwhile President Umaru Musa Yar’Adua. That was the situation when Mrs. Patience Jonathan was on admission for weeks in Germany. It is also the current situation with Governors Sullivan Chime and Liyel Imoke. Nigerians are only being treated to unconfirmed and speculative media reports. This should not be because this is an era of access to freedom of information when factual official reports ought to be voluntarily made available for public consumption.   However, the fear that opposition parties and some ambitious aides may plan to upstage the governor coupled with superstitious belief that such disclosure may expose them to spiritual attacks often make the governors to keep a sealed lips about their health status, even when they are suffering from terminal diseases.
This has given rise to lack of constitutionalism as constitution provisions are jettisoned on the altar of political expediency particularly in terms of transmission of executive power to deputy governors when the governors are unavailable to govern. In the entire history of the Fourth Republic, it was only the former Zamfara State governor, now Senator Sani Yerima who courageously endorsed his former deputy Mahmuda Aliyu Shinkafi to succeed him in 2007. Irreconcilable differences with his former boss however led Shinkafi to decamp to People’s Democratic Party from the All Nigeria Peoples Party. This angered Yerima so much that he pulled all the strings to ensure that Shinkafi did not succeed in his second term ambition. Former Governor of Anambra State Chukwuemeka Ezeife was credited as referring to Deputy Governor as spare tyres. Others have said the position of the Secretary to the State Government is weightier and more recognizable than that of the Deputy Governor.
This is spot on as section 193 of the constitution equated the office with those of the commissioners. It says in subsection 1 that  “The Governor of a State may, in his discretion, assign to the Deputy Governor or any Commissioner of the Government of the State responsibility for any business of the Government of that State, including the administration of any department of Government” Thus, it is not surprising that any ambitious or independent minded Deputy Governor is sidelined or have an impeachment orchestrated against him or her as was the case in many states with the most recent being the voluntary resignation of the Deputy Governor of Akwa Ibom State Mr. Nsima Ekere on October 31, 2012. The frosty relationship between governors and their deputies is borne out of the fact that the two are strange bedfellows. Deputies are often foisted on the governors by their political parties or godfathers. Thus, they operate under a climate of distrust. It is important to give specific constitutional role to the position of Vice President and Deputy Governor. While that is tabled for discussion, it is hoped that the cabinet and state of assemblies of absentee governors will do the needful by following constitutional provisions to the letter.