THE PRESIDENT LACKS POWER TO SUSPEND AN ELECTED GOVERNOR, HIS DEPUTY AND MEMBERS OF THE HOUSE OF ASSEMBLY UNDER SECTION 305 OF THE 1999 CONSTITUTION AS AMENDED BECAUSE THE POWER TO REMOVE A GOVERNOR AND A DEPUTY GOVERNOR IS ENSHRINED IN SECTIONS 188 AND 189 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS AMENDED AND SAME CAN ONLY BE EXERCISED BY THE HOUSE OF ASSEMBLY OF A STATE AND NOT THE PRESIDENT.
Since yesterday, I have been reading articles and listening to Lawyers and non-lawyers debating and arguing about the Constitutionality or otherwise of the powers of the President to suspend the Governor of Rivers state, his deputy and all other elected members of the Rivers State House of Assembly. While some have hinged their arguments on the provisions of Section 305 of the 1999 Constitution of the Federal Republic of Nigeria as amended, others, hinged theirs on the provisions of section 218 of the Constitution.
Furthermore, there is also another school of thought,that relied on the provisions of section 180 (1)(d) which provides thus: Subject to the provisions of this Constitution, a person shall hold the office of Governor of a state until- (d) he otherwise ceases to hold office in accordance with the provisions of this constitution.
It is quite regrettable and unfortunate that majority of Nigerians have been massively misled by both Lawyers and non-Lawyers that the President of the Federal Republic of Nigeria can hide under the provisions of Sections 180 (1) (d), 218 and 305 of the 1999 Constitution as amended to suspend an elected governor of a state, his deputy and other elected members of the House of Assembly. For the avoidance of doubt, no such powers exist under the 1999 Constitution as amended.
Premised upon the above, it is important to state that, the provision of Sections 180 (1) (d), 218 and particularly, section 305 of the 1999 Constitution as amended are so clear, plain and direct and do not require any ambiguous or imported interpretation. There is absolutely nothing in any of these Constitutional provisions that empowers the President to suspend or remove an elected Governor of a state, his deputy or the members of the House of Assembly.
As have been held in several authorities, not even Courts can amend the Constitution or even change the words. It is also a principle of interpretation that the language of the Constitution where clear and unambiguous, must be given its plain evident meaning and that a constitutional provision should not be construed so as to defeat its evident purpose. It is also settled law that provisions of the Constitution are not to be interpreted in isolation but that other provisions must be taken into consideration in the exercise. See the case of HON. MICHAEL DAPIANLONG & ORS vs. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) LPELR-928(SC) at PP. 55-57, paras. D-A.
The Supreme Court in Marwa vs. Nyako (2012) 6 NWLR (pt.1296) 199 at 337 SC, restated that when interpreting the provisions of our Constitution, not only should the Court look at this Constitution as a whole, the provisions should be construed in such a way to justify the hope and aspirations of those who made strenuous efforts to provide us with a constitution to ensure good governance, but also to protect the rights of Nigerians who are the beneficiaries of the provisions of the Constitution, particularly to ensure durable democratic institutions.
From the clear, express and direct provisions of the 1999 Constitution as amended, the power to remove a governor and a deputy governor is contained in sections 188 and 189 of the Constitution and only exercisable by the House of Assembly and not the president or even our Courts can exercise such powers. While a member of the House of Assembly can vacate his seat or be recalled from the House of Assembly by the express provisions of sections 109 and 110 of the Constitution. Just like sections 188 and 189, the President lacks the powers to exercise these powers.
Consequent upon the above, it is illogical and highly unreasonable for anyone to submit that the President can suspend an elected governor, deputy governor and members of the House of Assembly.
Finally, for those who have hidden under the omnibus provisions of section 180 (1) (d) to argue that the president can suspend an elected governor and his deputy, I must humbly refer you to the authority of All Progressives Congress (APC) vs. Peoples Democratic Party (PDP) & Ors (2022) LPELR-58952(CA) at PP. 42-44 paras. C-C, wherein it was held thus: Now, the offices of the Governor of a State and Deputy Governor of that State are creations of the Constitution, which is the grundnorm that regulates the conduct of government. Thus, Section 176 (1) of the Constitution stipulates that, there shall be for each State of the Federation, a Governor. The qualifications of a person to be elected Governor of a State are laid down in Section 177 of the Constitution. Where a person qualifies to contest for the Governor of a State, he will be declared duly elected if he satisfies the requirements of Section 179(1) (a) and (b), or 179(2) (a) and (b), or 179(3) (a) and (b), or 179(4) (a) and (b) of the Constitution. The equivalent provisions of the Constitution relating to the office of Deputy Governor of a State are Sections 186 and 187 (1) and (2). In the instant case, the 3rd and 4th Respondents satisfied the requirements of Section 179(2) (a) and (b) of the 1999 Constitution and were accordingly declared duly elected and sworn in on 29/5/2019. The 1st Respondent has hot contested nor denied those facts. It should be noted that the 3rd and 4th were to occupy the offices of Governor and Deputy Governor of Ebonyi State for a term of four (4) years from the 29th day of May, 2019. See Section 180 (2) of the 1999 Constitution (as amended). However, by Section 180(1) of the Constitution, they shall not vacate or deemed to have vacated the office of Governor until: (a) when their successors in office take oath of that office; or(b) the date when their resignation from office take effect; or (d) They otherwise cease to hold office in accordance with the provisions of the Constitution. It is apparent from the above stated provision of the Constitution, that their term of office shall end when their successors in office have been validly elected and sworn in; or where they die during the subsistence of their terms of office; or where they resign; or they otherwise cease to hold office. Section 180(1) (d) appears to be a general or omnibus provision to accommodate other circumstances, which may truncate or terminate the tenure of four (4) years prescribed by the Constitution. It is my view that paragraph (d) of subsection 1 to Section 180 of the Constitution is meant to accommodate a situation where the Governor may be removed from office pursuant to Section 188 and 189 of the Constitution (supra).
See also the decision of Engineer David NwezeUmahi & Anor vs. Peoples Democratic Party (PDP) & Ors, (2022) LPELR-58994(CA) at PP. 67-68, paras. C-F, it was held thus: It should be noted that the Appellants were to occupy the offices of Governor and Deputy Governor of Ebonyi State for a term of four (4) years from the 29th day of May, 2019. See Section 180 (2) of the 1999 Constitution (as amended). However, by Section 180(1) of the Constitution he shall not vacate or be deemed to have vacated the office of Governor until: (a) when his successor in office takes oath of that office; or (b) the date when his resignation from office takes effect; or (d) he otherwise ceases to hold office in accordance with the provisions of the Constitution, ?It is apparent from the above stated provision of the Constitution, that his term of office shall end when his successor in office has been validly elected and sworn in; or where he dies during the subsistence of his term of office; or where he resigns; or he otherwise ceases to hold office. Section 180(1) (d) appears to be a general or omnibus provision to accommodate other circumstances, which may truncate or terminate the tenure of four (4) years prescribed by the Constitution. It is my view that paragraph (d) of subsection 1 to Section 180 of the Constitution is meant to accommodate a situation where the Governor may be removed from office pursuant to Section 188 and 189 of the Constitution (supra). In the instant case, the case of the 1st Respondent leading to the decision of the Court below and subject of this appeal is that, the Appellants having decamped or cross-carpeted from the 1st Respondent’s platform on which they won the election, to the 3rd Respondent, they are deemed to have vacated their offices. It should be noted that by Section 187(2) the issue of inter alia, tenure of office applies to the office of Deputy Governor of a State.
In conclusion, an elected governor and his deputy can only be removed pursuant to the provisions of sections 188 and 189 of the Constitution only by the House of Assembly of a state. Furthermore, it must be noted that members of the House of Assembly can vacate their seats pursuant to sections 109 or be recalled pursuant to section 110 of the Constitution. The Presidenttherefore lacks powers under section 305 of the Constitution to suspend the Governor, Deputy Governor or members of the House of Assembly.
Ojonimi S. Apeh, Esq.
(Notary Public)
08064465541
apehnimibrisk@gmail.com