The current brouhaha over the prolonged absence of the Governor of Ondo State is really unnecessary.
The Constitution has taken care of this problem since 2010. That year, the nation was confronted with a constitutional crisis like no other. President Umaru Musa Yar’Adua had travelled out for treatment. The illness had occupied the attention of newspaper columnists, with Mahmud Jega of the Daily Trust writing a piece he creatively titled “Presidential Infirmities.” In the said article, remonstrating the President’s handlers for the stealth and the public for the unyielding criticism, he ratiocinated that Yar’Adua was not the first President to fall sick while in office. Governor Akeredolu, interestingly, as the then President of the Nigerian Bar Association, was one of those who denounced the vice grip hold the President’s handlers had on the Presidency at that trying time. On December 8, 2009, he said;
“The prayer of the association is that the President should recover fast, return to his office, and resign. No matter how much you love your country, it should not be at the detriment of your health. It is not your party or your wife that will decide whether you are capable of handling state matters; it is only your doctors that can decide that. The bar is not asking the president not to come back and take his seat, but the right thing must be done.”
Meanwhile, Vice President Goodluck Ebele Jonathan could not act as President because President Yar’Adua didn’t transmit the letter required for Vice-President Jonathan to act as President in the President’s absence pursuant to the provisions of Section 145 of the Constitution of the Federal Republic of Nigeria, 1999.
Tottering on the brink of political disquietude, fueled by what people were quick to point to as religious and ethno-regional preferences, with the attendant clear absence of leadership at the Centre, the nation was like the land of Israel in those days, as recorded in the book of Judges Chapter Seventeen Verse Six, when there was no king in Israel and everybody behaved according to their prevailing whims. At this point, the Senate stepped in with the Doctrine of Necessity and made Jonathan the Acting President. The National Assembly followed up on this epiphany of legislative creativity by amending the provisions of Sections 145 and 190 of the Constitution by inserting a new subsection (2). This amendment, inter alia, constituted the First Amendment of the Constitution.
Thus, by virtue of Section 14 and Section 20 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010 Act No. 1 enacted on the 16th of July, 2010 which, among other amendments, amended sections 145 and 190 respectively, where the President or the Governor is not available to discharge the functions of that office and fails to transmit a written declaration to the National Assembly or the State House of Assembly within twenty one (21) days, the relevant legislature shall by a simple resolution of the Assembly mandate the Vice-President or the Deputy Governor to perform the functions of the office of the President or that of the Governor as Acting President or Acting Governor as the case may be.
With particular reference to Ondo State, Section 20 of the First Alteration Act, which amended Section 190 of the Constitution, is devoid of ambiguity. It is immaterial whether Governor Akeredolu is in Nigeria, outside Nigeria, in Akure, or even inside the Government House. The operative clause in Section 20 of the First Alteration Act and Section 190(1) of the Principal Act is this: “otherwise unable to discharge the functions of his office.” The geographical location of the Governor at that material time is of no consequence. The Ondo State House of Assembly ought to have activated the provisions of the new Subsection (2) of Section 190 of the Constitution to make the Deputy Governor the Acting Governor “until the Governor transmits a letter to the Speaker that he is now available to resume his functions as Governor.”
What is required of the House of Assembly is a simple majority of the vote of the House mandating the Deputy Governor to so act. Tinubu’s intervention is overkill and simply unnecessary. In my view, it undermines the concept of federalism, more so as the Constitution has taken care of the present problem by virtue of Section 20 of the First Amendment. Relying on the doctrine of necessity as reported in the newspapers is really anachronistic and superfluous.
This Article Was Written By Ogbu, Blessing, Ekpere, Esq., a legal practitioner, writes in from Abuja. He can be reached on legalmindogbu@gmail.com
