Taraba’s dual power base

This is true of the constitutional and moral issues at play in the resumption or non resumption of office by the elected Governor of Taraba State Danbaba Suntai. This is because the more Nigerians trumpet the resolution of the constitutional and moral issues in Taraba State the more it is clear that nothing has been […]

This is true of the constitutional and moral issues at play in the resumption or non resumption of office by the elected Governor of Taraba State Danbaba Suntai. This is because the more Nigerians trumpet the resolution of the constitutional and moral issues in Taraba State the more it is clear that nothing has been resolved and that the people are sitting on a constitutional time bomb.
I am saying that nothing has been resolved based on the events still unfolding in the State. As at today, Taraba State has a Governor and an Acting Governor in Government House Taraba State. One is the Acting Governor running the State and the other is the sitting Governor apparently supervising matters. We have some members of the State Assembly insisting that the Governor is not fit to govern and some others saying that the Governor must govern whether he is fit or not.  We have a situation where the Peoples Democratic Party are claiming to have resolved the issues and that the Acting Governor will consult the Governor on major decisions and a State Assembly saying that the Governor they saw is a Governor that must go and continue his medical treatment and not one strong enough to be bothered with the affairs of the State.  How can anyone then say that anything has been resolved?
There are fundamental issues at stake in this whole saga and the issues must be resolved for the State to make any meaningful progress. The first is that the Nigerian Constitution does not envisage or anticipate an Acting Governor and a sitting Governor co-existing in the Government House and the Acting Governor taking directives from the Governor. It is an aberration. The Constitution only wants one of them in the Government House at a time. This is why section 190(1) of the Constitution used the words “Whenever the Governor is proceeding on vacation or is otherwise unable to discharge the functions of his office.” The implication of this is that the Governor must be on vacation in his house or outside his house or is unable to perform the functions of his office before the Acting Governor can act. In either case the Governor must be far away from governance.   How can a Governor be resting and governing at the same time in duality with an Acting Governor?
It is also disingenuous for anyone to focus only on section 190(1) of the Constitution in the analysis of the constitutional crisis in Taraba State. The situation in Taraba State did not arise as a result of the invocation of section 190(1) of the Constitution. Section 190(1) of the Constitution provides that “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”.
Even those engineering and fueling the constitutional confusion in Taraba State concede that because of the accident he had, His Excellency the Governor of Taraba State was unable to transmit the letter envisaged by section 190(1) of the Constitution and hence the constitutional issue does not fall within the ambit of section 190(1) of the Constitution. Therefore, to argue that the letter written for the Governor or on his behalf by his cronies is that “written declaration” envisaged by section 190(1) is to stand the law and logic on its head.
My take is that the Taraba challenge falls within the parameter of the new section 190(2) of the Constitution of the Federal Republic of Nigeria, 1999. The National Assembly amended the Constitution of the Federal Republic of Nigeria, 1999 after the death of our former President Umaru Musa Yar’Adua and created a new subsection (2) to take care of situations where a Governor is unable to perform his functions and is unable to transmit the letter envisaged by section 190(1) of the Constitution. Section 190(2) therefore provides that “In the event that the Governor is unable or fails to transmit written declaration mentioned 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 indisputable fact therefore is that the Acting Governor assumed office on the strength of the resolution of the House of Assembly. Therefore he derived his mandate from the House of Assembly acting on their constitutional powers. It is also a fact that the Governor did not transmit any letter to the House of Assembly indicating that he is proceeding on leave or unable to perform the functions of his office. The Governor was involved in an accident and it is that fact of an accident that gave rise to the resolution of the House.
The letter written to the House of Assembly by the Governors handlers simply indicates that he is now “available to resume his functions as Governor”. It is therefore within the competence and powers of the House of Assembly to have recourse to their resolution and make a determination whether the Governor is now truly available to perform the functions of his office taking into consideration that as at the time of their resolution, they knew the state of his health. So the letter written to the House of Assembly is not the written declaration in section 190(1) of the Constitution but is the letter envisaged by section 190(2) transmitted to the Speaker indicating that he is now available.
To therefore argue that the letter envisaged in section 190(2) is absolute, mandatory, cast in rock and does not admit of any discretion is to do violence to the intention of the law makers and the constitution. So, the letter must accept the letter and now presume that the Governor is available when they know that he is not available? No.  
Moreover, the intention of the Constitution is that when the House comes to a decision that the Governor is now available, they will by their resolution now demobilize the Acting Governor and he now reverts back to being Deputy Governor.

Okoye is Executive Director of Human Rights Monitor <[email protected]>;