Sunday Musings
The Sorry Situation of the Governors and their Deputies

By: Mobolaji E. Aluko, PhD
Burtonsville, MD, USA

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Sunday March 31, 2002

Contents:
• Introduction: “Can You Please Come With Us?”
• Problem 1: Enforced Partnerships
• Problem 2: Undefined Constitutional Roles
• Problem 3: Nebulous Temporary Succession Provisions
• Problem 4: Over-Reaching Unitary “Federal” Constitution
• Epilogue

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  Introduction: "Can You Please Come With Us?"
  A curious thing happened this week - or did it?

  No, I don’t mean the Supreme Court ruling on the Electoral Act - discussions about that legal bashing of the Executive and the National Assembly will have to wait.

  The story is told that on Wednesday, March 27, 2002, at a Federal Executive Council meeting in Abuja, one Sir Stanley Ohajuruka, Speaker of the House of Assembly of Abia State, was comfortably ensconced on a seat “Acting” confidently as Governor for the substantive governor Dr. Orji Kalu. Kalu was “on vacation” - or was he attending those two-week Abia State University, Uturu courses towards the completion of his 1982 University of Maiduguri university degree, no one quite knows. His suspended deputy governor, Dr. Eyinnaya Abaribe, was conveniently out of the way, so Kalu had written to the said Speaker (in accordance with his interpretation of the 1999 Constitution) to take over the governorship in his absence.

  Anyway, so imagine Sir Ohajuruka’s consternation when, while awaiting for the “tra-la” entrance of President Obasanjo, a securocrat with a walkie-talkie tapped him on his shoulder, asked to have a chat with him outside the ornate chamber - “Can you please come with us, sir?” - following which he was quietly marched to his waiting gubernatorial limousine outside. This was after another securocrat had helped him to retrieve the state-matters-filled briefcase that he had left behind in the presidential chamber.

  The meeting is said to have proceeded without him, with the other attendees blissfully ignorant of the happenings.

  But strange things do happen in Nigeria: Sir Ohajuruka has since denied that any of this happened, admitting only that routine questions were appropriately asked of him at the entrance gates of Aso Rock, after which he was happily waved through! According to him, he sat through the entire proceedings, and even contributed, including a cough here and a laughter there.

  His denial leads to a serious head-scratching.: Did this event happen or not as reported by three newspapers and their reporters: Paul Odenyi of Comet, Rotimi Ajayi of Guardian and Madu Onuorah and Vanguard ? So who to believe? If the story is untrue, what should happen to Odenyi, Ajayi and Onuorah?

  Good questions - but not as important as some other questions! No matter the authenticity or otherwise of the reports, the (non)incident throws up, once again, the nagging problem of our Governors and their Deputies. The story in the land has been that, despite the fact that they are elected on a joint political ticket, in general their relationship has been like that of the lion and the lamb, between Cain and Abel.

  Here is a list of unhappy odd couples (any omissions highly regretted):

  
  State:   Governor v. Deputy Governor
  Lagos:  Bola Tinubu v.  Kofo  Bucknor-Akerele
  Osun;   Bisi Akande v. Iyiola Omisore
  Abia:    Orji Kalu v. Eyinanya Abaribe
  Anambra: Chinwoke Mbadinuju v. Emeka Chinedu 
  Ebonyi:  Sam Egwu v. Emmanuel Isu 
  Cross-River:  Donald Duke v. John Okpa
  Jigawa: Ibrahim Turaki  v.  Ibrahim Kwatolo (since replaced by 
  Alhaji Lebale Shittu upon Kwatolo’s honorable resignation)
  Kogi:  Abubakar Audu  v. Patrick Adaba
  

  One grants that the list is only eight states out of thirty-six : the Anambra case seems to have subsided somewhat, nevertheless it has been replaced by Mbadinuju/Offor “roforofo”. However, certainly the Osun and Abia cases have now graduated from local embarrassment to national prominence, what with Chief Bola Ige’s December 23 2001 assassination being a possible outcome of the Akande/Omisore imbroglio.

  So how did we get to this sorry pass, and how might we get out of it?

  Problem 1: Enforced Partnerships
  QUOTE FROM THE 1999 CONSTITUTION

  186. There shall be for each State of the Federation a Deputy Governor.

  187.
  (1) In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.

  (2) The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and Oath of Governor shall apply in relation to the office of Deputy Governor as if references to Governor were references to Deputy Governor.

  From the above, the Nigerian Constitution stipulates a JOINT ELECTED TICKET for the governor and deputy-governor, the latter being considered just AS ELECTED as much as the governor. This is unlike some states in the United States of America where each position is separately contested for by individuals who might actually end up coming from different political parties. [For example, Alabama, Louisiana, Maine, Rhode Island, South Carolina, Tennessee currently have such split Gov. - Lt. Gov. tickets. All states have tickets with 4-year terms except New Hampshire and Vermont, which have 2-year terms.]

  It is elementary that given the choice, one would like to choose - or like to have a very strong hand in choosing - one’s own deputy, within certain reasonable political parameters. During the campaign stage, for a joint political ticket, that deputy should be able to add substantial votes to the ticket, or at the very worst should not be a liability that would cost votes. Upon election, that choice, for a successful partnership, must be of a person who is respectful of and loyal to the governor, complementary to his vision, compatible with his style of action, and competent enough to step in as “acting governor” if and when needed, or as substantive governor if the elected governor is permanently incapacitated.

  Respect, loyalty, complementarity, compatibility, and competence leading to mutual confidence are the key words here that should define the relationship between the Governor and his deputy.

  However, if the MOST IMPORTANT political calculations are the votes a deputy adds to the election prospects and/or the money he brings to the party kitty, without giving much mind to the ingredients for successful partnership, then a recipe for disaster ensues. This is what has apparently been the lot of many of the states, particularly Lagos and Osun.

  So what to do?

  I believe that a gubernatorial candidate should, following negotiations, be allowed to present three candidates as possible running mates to his party, before he is ratified as the party’s gubernatorial candidate. Once he is ratified, he should then be absolutely free to choose ANY of those candidates as his substantive running mate in the election itself. Alternatively, one could adopt what I term the “Alaska State model”: the Governor and Deputy Governor can run on separate tickets in the party’s primary election, and then get paired up as a team in the General Election. The “Texas State model” is also unique and worth investigating: the State Senate (in the Nigerian case, the State Assembly) gets to elect one of its own to serve the double substantive roles of Senator/President of the Senate (legislator) AND Lieutenant-Governor (Executive).

  Problem 2: Undefined Constitutional Roles
  QUOTE FROM THE CONSTITUTION

  Section 5:
  2) Subject to the provisions of this Constitution, the executive powers of a State:

  (a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any Law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State; and

  Section 193.

  (1) 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.

  (2) The Governor of a State shall hold regular meetings with the Deputy Governor and all Commissioners of the Government of the State for the purposes of -

  (a) determining the general direction of the policies of the Government of the State;

  (b) co-ordinating the activities of the Governor, the Deputy Governor and the Commissioners of the Government of the State in the discharge of their executive responsibilities; and

  (c) advising the Governor generally in the discharge of his executive functions, other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other person or body.

  There is the axiom that the Devil finds work for idle hands. I believe that that axiom is partly at work in the case of Deputy Governors in Nigeria. This is because our constitution does not specify any particular role for the Deputy Governor, leaving him completely at the mercy of the Governor. Furthermore his or her competence cannot be established independent of that of the governor.

  Indeed, that is how it is in some states in the US eg Wisconsin, Florida, where there is no constitutional role for the Lieutenant Governor outside of succeeding the Governor in the event of permanent incapacitation or vacancy. However, I believe that if the position exists, then it should have DEFINITE constitutional role: let then be CONSTITUTIONALLY in charge of local government, education, women and sports, parks and gardens - something - so that the Deputy Governor can have something definite to look to each day, rather than look up to the Governor! For example, in the state of Alaska here in the US, the Lieutenant Governor serves in the same capacity as a Secretary of State. He presides over the state senate in Arkansas, Virginia, Pennsylvania, etc. but casts a vote only in the event of a tie. In Pennsylvania, he also serves as Chairman of the Board of Pardons, which reviews applications for reprieve, commutation of sentences, and pardons. In Ohio, the Lieutenant Governor serves as chairman of the 13-member State and Local Government Commission.

  On the other hand, West Virginia's state constitution is unlike most others in that it does not provide for a Lieutenant Governor. In that state, if the governor is unable to perform his or her duties the President of the State Senate is designated as next in line of succession, followed by the Speaker of the House of Delegates. This state of no deputy governor in Nigeria is probably what Alhaji Ahmed Jimkashi, the deputy governor of Katsina State had in mind when he recently called for the abolition of the office as he sees it as an “unnecessary drain pipe on the purse of the state.”

  These examples are given merely to show the richness of American federalism, and the individual state’s efforts to outline clearly (and admirably) the functions of their Lieutenant (Deputy) Governor. Since at this time we run the United States model of governance, we should not close our eyes to their various examples.

  Problem 3: Nebulous Temporary Succession Provisions
  QUOTE FROM THE CONSTITUTION

  Section 181 -
  If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy governor shall be sworn in as governor and he shall nominate a new Deputy-Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State.

  (2) Where the persons duly elected as Governor and Deputy Governor of a State die or are for any reason unable to assume office before the inauguration of the house of Assembly, the Independent National Electoral Commission shall immediately conduct an election for a Governor and Deputy Governor of the State.

  190. Whenever the Governor transmits to the Speaker of the House of Assembly a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to the Speaker of the House of Assembly a written declaration to the contrary such functions shall be discharged by the Deputy Governor as Acting Governor.

  191.
  (1) The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the governor from office for any other reason in accordance with section 188 or 189 of this Constitution.

  (2) Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Deputy Governor of the State is also vacant, the Speaker of the House of Assembly of the State shall hold the office of Governor of the State for a period of not more than three months, during which there shall be an election of a new Governor of the State who shall hold office for the unexpired term of office of the last holder of the office.

  (3) Where the office of the Deputy Governor becomes vacant -

  (a) by reason of death, resignation, impeachment, permanent incapacity or removal in accordance with section 188 or 189 of this Constitution;

  (b) by his assumption of the office of Governor of a State in accordance with subsection (1) of this section; or

  (c) for any other reason, the Governor shall nominate and with the approval of the House of Assembly of the State, appoint a new Deputy Governor.

  Only the dead have no ambitions. There is NOTHING wrong for a deputy to have an ambition to become governor. Nevertheless, that ambition should not be to DISPLACE the governor DURING his current term, or to undermine him in such a manner that the governor’s re-election, should he desire to re-contest, would be in serious jeopardy. A sense of decency and loyalty would demand early resignation in that case.

  Indication of this “succession itch” is inherent in the attitude of a deputy governor to temporary succession provisions in the constitution. Does he jump at every opportunity to be “acting governor”, following which he makes a flurry of executive decisions?

  More relevant is the fact that in the Nigerian constitution, nebulous provisions for temporary succession exist. For example in Section 190 we read that: “Whenever the Governor transmits to the Speaker of the House of Assembly a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to the Speaker of the House of Assembly a written declaration to the contrary such functions shall be discharged by the Deputy Governor as Acting Governor.” Is the “contrary” word a subjunctive to when Governor is no longer able to discharge the functions or does it apply to giving “contrary instruction” as to whether the Deputy Governor shall act or not? Does Section 193: “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.” not give the governor the prerogative to choose EITHER the (elected) Deputy Governor OR any of the (unelected) state commissioners to act in a capacity such as Governor?

  These are questions that the courts in Nigeria will still have to decide, possibly sooner than later as the Ebonyi case between Governor Egwu and Deputy Governor Isu winds its legal way along.

  The lesson is that there is much room for less ambiguity in our constitution. I have provided in the Appendix examples of three states in the US in which succession provisions are CLEAR and UNAMBIGUOUS.

  Problem 4: An Over-Reaching, Unitarizing "Federal" Constitution
  There are two particular issues worth noting here over this Aso-Rock Deputy Governor debacle:

  Over-reach of the Constitution in terms of the composition of the Council of State

  QUOTE FROM THE CONSTITUTION

  THIRD SCHEDULE

  B - Council of State

  5. The Council of State shall comprise the following persons:

  (a) the President, who shall be the Chairman;

  (b) the Vice-President, who shall be the Deputy Chairman;

  (c) all former Presidents of the Federation and all former Heads of the Government of the Federation;

  (d) all former Chief Justices of Nigeria;

  (e) the President of the Senate;

  (f) the Speaker of the House of Representatives;

  (g) all the Governors of the states of the Federation; and

  (h) the Attorney-General of the Federation.

  (6.) The Council shall have power to:

  (a) advise the President in the exercise of his powers with respect to the:-

  (i) national population census and compilation, publication and keeping of records and other information concerning the same;

  (ii) prerogative of mercy;

  (iii) award of national honours;

  (iv) the Independent National Electoral Commission (including the appointment of members of that Commission);

  (v) the National Judicial Council (including the appointment of the members, other than ex-officio members of that Council); and

  (vi) the National Population Commission (including the appointment of members of that Commission); and

  (b) advise the President whenever requested to do so on the maintenance of public order within the Federation or any part thereof and on such other matters as the President may direct.

  Quite apart from the untidy howler that our current Council includes some failed former heads of states, military dictators and an 81-day civilian head of state “wonder”, there is something INTRINSICALLY wrong when a Constitution saddles a sitting president with an advisory Council comprising even legitimate FORMER PRESIDENTS and HEADS of STATES who may have diametrically opposite philosophical and political views from him. They may even be his political enemies of him. He may have just beaten one of them in the last presidential election, but now they must sit in an advisory council to him.

  Let us imagine if this law had existed in Mexico where for the past 70 years or so a party had been providing the President of the country. Now, the president of another party provides a president in the person of Vincente Fox - and he is required to have as his advisory council ALL THE PAST presidents of the other party! What a mess that would be!

  The upshot is that while a council of advisors to the president may be stipulated by law, its membership should be COMPLETELY free of this kind of rigid stipulation of composition. Besides, the Council of State, being such a hodgepodge of members of the Executive, the Legislature and the Judiciary militates in a fundamental way against the concept of separation of powers. Such “chuminness” while not completely avoidable, should not be so constitutionally entrenched. Finally, the constitutional requirement for governors to meet with the president is an unnecessary carry-over from our unitary military antecedents.

  Anti-federal Over-reach by provisions for state

  Our 1999 Constitution unitarizes our states by making rules that encompass all the states unnecessarily. On this issue of Deputy Governors, I believe that each state should be left to determine the parameters of their duties. The richness of American federalism is the variety of ways with which the states govern themselves, and the internal examples of success (or failure) which the different models then provide.

  Epilogue
  Almost every week, an occasion arises in our polity whereby the weakness of our Constitution in terms of rigour gets thrown up. The need for its amendment with a fine tooth-comb - particularly via a Sovereign National Conference - cannot be over-emphasised. Its language must be tightened and it should be shed of its many anti-federalist, unito-military proclivities. States should have their own constitutions, following which the Federal Constitution should be shorn of many of its provisions for states.

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  Appendix
  INFORMATION ON LIEUTENANT GOVERNOR OF MARYLAND, NEW YORK AND KANSAS STATES, USA

  Maryland State Law
  SEC. 6. (a) If the Governor-elect is disqualified, resigns, or dies, the
  Lieutenant Governor-elect shall become Governor for the full term. If the Governor-elect fails to assume office for any other reason, the newly elected Lieutenant Governor shall become Lieutenant Governor and shall serve as acting Governor until the Governor-elect assumes office or until the office becomes vacant.

  (b) The Lieutenant Governor shall serve as acting Governor when notified
  in writing by the Governor that the Governor will be temporarily unable to perform the duties of his office. The Lieutenant Governor also shall serve as acting Governor when the Governor is disabled but is unable to communicate to the Lieutenant Governor the fact of his inability to perform the duties of his office. In either event the Lieutenant Governor shall serve as acting Governor until notified in writing by the

  Governor that he is able to resume the duties of his office or until the office becomes vacant.

  (c) The General Assembly, by the affirmative vote of three-fifths of all its members in joint session, may adopt a resolution declaring that the Governor or Lieutenant Governor is unable by reason of physical or mental disability to perform the duties of his office. When action is undertaken pursuant to this subsection of the Constitution, the officer who concludes that the other officer is unable, by reason of disability to perform the duties of his office shall have the power to call the General Assembly into Joint Session. The resolution, if adopted, shall be delivered to the Court of Appeals, which then shall have exclusive jurisdiction to determine whether that officer is unable by reason of the disability to perform the duties of his office. If the Court of Appeals determines that such officer is unable to discharge the duties of his office by reason of a permanent disability, the office shall be vacant. If the Court of Appeals determines that such officer is unable to discharge the duties of his office by reason of a temporary disability, it shall declare the office to be vacant during the time of the disability and the Court shall have continuing jurisdiction to determine when the disability has terminated. If the General Assembly and the Court of Appeals, acting in the same manner as described above, determine that the Governor-elect or Lieutenant Governor-elect is unable by reason of physical or mental disability to perform the duties of the office to which he has been elected, he shall be disqualified to assume office.

  (d) When a vacancy occurs in the office of Governor, the Lieutenant Governor shall succeed to that office for the remainder of the term. When a vacancy occurs in the office of Lieutenant Governor, the Governor shall nominate a person who shall succeed to that office upon confirmation by the affirmative vote of a majority of all members of the General Assembly in joint session.

  (e) If vacancies in the offices of Governor and Lieutenant Governor exist at the same time, the General Assembly shall convene forthwith, and the office of Governor shall be filled for the remainder of the term by the affirmative vote of a majority of all members of the General Assembly in joint session. The person so chosen as Governor by the General Assembly shall then nominate a person to succeed to the office of Lieutenant Governor, upon confirmation by the affirmative vote of a majority of all members of the General Assembly in the same joint session. The President of the Senate shall serve as acting Governor until the newly elected Governor has qualified. If a vacancy exists in the office of Lieutenant Governor, at a time when the Lieutenant Governor is authorized to serve as acting Governor, the President of the Senate shall serve as acting Governor. If there is a vacancy in the office of the President of the Senate at a time when he is authorized to serve as acting Governor, the Senate shall forthwith convene and fill the vacancy.

  (f) When the Lieutenant Governor or a person elected by the General Assembly succeeds to the office of Governor, he shall have the title, powers, duties, and emoluments of that office; but when the Lieutenant Governor or the president of the Senate serves as acting Governor, he shall have only the powers and duties of that office. When the President of the Senate serves as acting Governor, he shall continue to be President of the Senate, but his duties as president shall be performed by such other person as the Senate shall select.

  (g) The Court of Appeals shall have original and exclusive jurisdiction to adjudicate disputes or questions arising from the failure of the Governor-elect to take office, or the service of the Lieutenant Governor or President of the Senate as acting Governor, or the creation of a vacancy in the office of Governor or Lieutenant Governor by reason of disability, or the succession to the office of Governor or Lieutenant Governor, or the exercise of the powers and duties of a successor to the office of Governor (amended by Chapter 743, Acts of 1959, ratified Nov. 8, 1960; Chapter 532, Acts of 1970, ratified Nov. 3, 1970).

  New York State
  [When lieutenant-governor to act as governor]

  §5. In case of the removal of the governor from office or of his or her death or resignation, the lieutenant-governor shall become governor for the remainder of the term.

  In case the governor-elect shall decline to serve or shall die, the lieutenant-governor-elect shall become governor for the full term.

  In case the governor is impeached, is absent from the state or is otherwise unable to discharge the powers and duties of the office of governor, the lieutenant-governor shall act as governor until the inability shall cease or until the term of the governor shall expire.

  In case of the failure of the governor-elect to take the oath of office at the commencement of his or her term, the lieutenant-governor-elect shall act as governor until the governor shall take the oath. (Formerly §6. Renumbered and amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; further amended by vote of the people November 8, 1949; November 5, 1963; November 7, 2001.)

  Kansas State
  Historically, the primary duties of the Lieutenant Governor were legislative, serving as president of the Senate. These duties were frequently limited, and the legislative duties of the Lieutenant Governor gradually declined over the years. Senators elected from their own ranks the president pro tem, and it was this officer rather than the

  Lieutenant Governor who functioned as the real leader of the Senate. In 1972, a constitutional amendment made the Lieutenant Governor’s primary responsibility to serve as part of the executive branch, and it deleted the provision that the Lieutenant Governor be president of the Senate. Even though the Office of the Lieutenant Governor was substantially restructured almost three decades ago, its most vital responsibility remains - to succeed the governor should that office become vacant.

  The same 1972 Kansas Constitutional Amendment increased the term of the Governor and the Lieutenant Governor from two to four years, and beginning with the 1974 election, candidates for the office of Governor and Lieutenant Governor have been nominated and elected as part of the same ticket.

  Regarding succession to the office of the governor, the Kansas Supreme Court has held that the absence of the Governor from the state does not entitle the Lieutenant Governor to act as Governor. The Lieutenant Governor becomes Governor only when the office becomes vacant or when the Governor has become disabled. If by chance both the office of the Governor and the office of the Lieutenant Governor become vacant, the president of the Senate will assume the office of Governor. If all three of these offices were to become vacant the Speaker of the House would be next in line to assume the governorship.

  There is no formal provision mandating a minimum age, state residency, US citizenship or years as a qualified voter to hold the office of Lieutenant Governor.

   

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  Published with the permission of Dr. Mobolaji Aluko