For The Record
Appointment Of (Acting) Chief Judge Of Rivers State
INTRODUCTION
In recent times, some individuals and lawyers have been calling on His Excellency, the Governor of Rivers State, Rt. Hon. Chibuike Rotimi Amaechi CON, to appoint a Chief Judge for Rivers State or, an Acting Chief Judge, pending the appointment of a substantive Chief Judge.
In particular, an officer of one of the Branches of the Bar Association in Rivers State and, at another time, a Senior Advocate, amongst others, at various media platforms, made the calls.
It is important, and it should be encouraged, that citizens take interest in their government and its activities, which such calls symbolise. However, it is more important that expression of such interests should be done with accurate knowledge of the facts and a fair and sincere expression of one’s view of the Law on the matter, when the issue at stake borders on Law, so as to assist the citizenry follow more accurately on the issue.
It is important, before we proceed and since the issues here presented also touch on the activities of that Body, to state categorically that the Rivers state Government has the greatest respect for the National Judicial Council (NJC), and will continue to collaborate with it as provided for in the Constitution in aid of its performance of its duty under the Law for the interest of our people.
THE FACTS:
The last incumbent of the office of Chief Judge of Rivers State, retired on August 19, 2013. The very next day, i.e. August 20, the Rivers State Governor appointed and swore-in the Hon. Justice P.N.C. Agumagu, as the Acting Chief Judge of the State.
This was pursuant to Sec 271 (4) of the Constitution of the Federal Republic of Nigeria which states that the Most Senior Judge of the High Court be so sworn-in.
In choosing, appointing and swearing in Hon. Justice P.N.C. Agumagu, then President of the State’s Customary Court of Appeal, the State Government explained that the Hon Justice Agumagu was sworn in as a High Court Judge and seconded to establish the State’s Customary Court of Appeal and is now the Most Senior Judge in the State Judiciary and that according to the State’s Customary Court of Appeal Law, the President of that Court takes precedence immediately after the Chief Judge of the State and sits in the state Judicial Service Commission second only to the Chief Judge and that the provision of the constitution in that regard must be read together with the State’s Customary Court Law as stated.
As expected, there were other views opposed to this: that the Customary Court Law provision that the President of that court comes after the Chief Judge is only as to protocol and that at any event, according to the opponents of his appointment, that the Customary Court, although part of the Judiciary of the state, is not part of the High Court. None disputed the fact that Hon Justice Agumagu was sworn in as a High Court Judge long before any of the Judges now serving in the state judiciary. Whatever different or differing views, the appointment had been made; the Hon. Justice Agumagu entered his appointed office of Acting Chief Judge and commenced the performance of his duties. There was no challenge to the appointment up-till date. In law, that appointment remains valid until set aside, not by a differing view, no matter how eminent the holder of the view, but by a competent Court.
For the avoidance of doubt, the said section states as follows:
‘’ If the office of the Chief Judge of a State is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office or until the person holding the office has resumed those functions, the Governor shall appoint the most senior Judge of the High Court to perform those functions.’’
An unbiased reading of the section will reveal that the requirement of appointment of the ‘Most Senior’ Judge is only at the first instance of appointment. Subsequent appointments need not follow any order of seniority.
This has always been so. For example, when the position of President of the Court of Appeal became vacant and pending the appointment of the substantive successor could be named, after the appointment of the most senior in the system, ie the Hon Justice Dalhatu Adamu, the subsequent appointment, in acting capacity, did not follow seniority and that is how the present incumbent, who is not the most senior in the system is there now as the Acting President and it is valid.
Not long after the appointment of the Hon Justice Agumagu as Acting Chief Judge, an interested Senior Advocate who also sits in the National Judicial Council (NJC) as a member and who is opposed to the initial appointment and who prefers a particular candidate, ( I am not opposed to those who are opposed to the initial appointment or the interpretation of who is the most senior Judge. I am only opposed to their insistence that their view is the only one the Governor must act on) had hinted that any Judge of the High Court who accepted any further appointment of acting Chief Judge would be sanctioned by the NJC. At that time, the NJC had not had its quarterly meeting then to be held in December.
True to that promise, the NJC met and thereafter, wrote to all Judges of the High Court in Rivers State that should they accept the acting appointment, the acceptance would be considered an act of misconduct. Further, in that letter to the Judges, the NJC stated that the Governor should appoint a particular Judge who, in its own Judgement, is the Most Senor Judge, as the Acting Chief Judge.
Clearly, the NJC is dictating to the Governor, the particular candidate, to be appointed as acting Chief Judge of the State. One wonders why the NJC did not warn Justices of the Court of Appeal not to accept the appointment of Acting President of that Court after the tenure of Hon Justice Dalhatu Adamu expired and why they did not and have not still appointed the most senior Justice of that Court to the position of Acting President.
Does The Njc Have Any Power Whatsoever In The Appointment Of An Acting Chief Judge Of A State?
The answer is to be found in that same section 271(4) which, for purpose of ease of understanding, I reproduce again and it provides:
‘’ If the office of the Chief Judge of a State is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office or until the person holding the office has resumed those functions, the Governor shall appoint the most senior Judge of the High Court to perform those functions.’’
What can be seen, clearly, is that the Governor needs no recommendation from anyone as to whom to appoint as Acting Chief Judge, nor approval of anyone to validate whomsoever he has appointed. The guide provided by the Constitution to the Governor is that contained in the phrase, ‘’ The most Senior Judge of the High Court’’ which the Governor has interpreted and acted on and which, as stated, remains valid and subsisting not having been set aside by a Court of Competent Jurisdiction.
It is only and only when an appointed person’s tenure has lapsed and the Governor wishes a renewal, that the NJC becomes constitutionally relevant in this regard as it is its Constitutional Powers to approve the renewal. If there is no issue of renewal of the appointment of an Acting Chief Judge, then there is no role for the NJC to play. The relevant Section, therefore, which the Publicists did not bother to refer its listeners and readers to (because they have ruled the first appointment invalid which appointment remains valid because they are not a Court of Law as only a Court of Law can validly so rule) is Subsection (5) of the selfsame Section 271 which states thus:
‘’Except on the recommendation of the National Judicial Council an appointment pursuant to Subsection (4) of this Section shall cease to have effect after expiration of three months from the date of such appointment and the Governor shall not reappoint a person whose appointment has lapsed’’.
It has been our law – and it has not changed – that Bodies established by law (including the NJC) must act within the boundaries established by their enabling statutes.
Again, we ask, where is the role of the NJC in the exercise of a Governor’s power conferred on him by the constitution to appoint an acting Chief Judge for a State?
Those contributing and issuing Press Releases and granting interviews on this matter have not even bothered to provide this answer to their audience as to how the issue concerns the NJC or where the NJC derives its power to dabble into it as to insist on the appointment of a particular Judge and to issue threat letters to Judges as aforesaid.
The simple reason, therefore, for the void in the office of acting Chief Judge of Rivers State is not, as those interested publicists have put it, that the Governor has failed or refused to fill the vacancy, but simply that the NJC, for whatever reason, wrote to all our Judges not to accept the appointment except the Governor appoints a particular Judge. This is curious!
Although chaired by the Chief Justice and having as its members, eminent Judges and Justices, the NJC, still, is not a Court. Not only that, it is, itself, subject to the Constitution.
It, therefore, lacks powers to declare a Governor’s appointment unconstitutional as it purported to do; neither is there any authority in it conferred by the Constitution, to threaten Judges not to accept such appointment from the State Chief Executive.
If the Governor acted outside the constitutional powers granted him, it is not the NJC that has power to so declare, but a competent court.
The Governor, not interested in setting up any Judge against the NJC, decided not to make the appointment until the issue is cleared, as appointing the candidate the NJC insisted should be appointed, will mean that the NJC, not the Governor, is the ‘appointing Authority’, a Constitutional description which refers only to the Governor and not the NJC. That will amount to an abdication of a Constitutional duty on the part of the Governor.
For the avoidance of doubt, it is only in the appointment of a substantive Chief Judge that the Governor is to await the recommendation of the NJC before His Excellency makes such substantive appointment subject to approval of the state House of Assembly. There should be no conflation of the two situations of appointment of acting Chief Judge and the appointment of substantive Chief Judge. It is the misunderstanding of the role of the NJC and the role of the Governor in these two separate situations, or, putting it more appropriately, the thinking that the role of the NJC is the same in both situations, that has led, with respect, to the comedy of errors by those who reasoned that the Governor is in error. His Excellency is not.
The previous appointment having not been voided by any court, the Governor clearly has fulfilled the constitutional requirement of appointing the Most Senior Judge and all arguments on that spent-issue must be regarded for what they are: academic.
Why Did The Njc Not Act In Other States With Similar Situation As It Is Now Acting In Rivers State?
The impression has been given that the path Rivers State is now treading – of appointing acting Chief Judge- is un-trodden. This is a wrong impression.
Adamawa, Abia, and Osun States have, at various times, spanning, in some cases, close to a year and in the case of Abia, more than a year, operated their various Judicial Systems with Acting Chief Judges because the issue of substantive appointment was lingering and in the case of Abia, is still lingering.
Did the NJC write to their Judges there not to accept the acting appointment and that if they did, they would be sanctioned? Up till the time of this writing, Abia State still has an acting Chief Judge. In Adamawa, one Judge acted as Chief Judge for several, several months. Nothing in Rivers State resembles these states’ examples and yet the NJC has gone to the extreme of writing to the Judges of Rivers State with a promise of punishment should they accept to serve in Acting capacity. This selective approach must worry all those who love Law and Order and Justice and Equity and Equality. The only reason for this selectivity in treatment is simply that there is no prominent NJC member in those states with a preferred candidate which is the case in Rivers state. I say no more on this until the appropriate time.
Is This The First Time Rivers State Would Be Without A Chief Judge?
Publicists and advocates of a ‘preferred candidate’ have continued to argue that “since the 19th of August, 2013, there has been no legitimate Head for the High Court of Rivers State”. They then added: “As Leaders of the Bar in Rivers State, members of the Body (ie Body of Senior Advocates) consider that this does not augur well for the administration of Justice and the maintenance and enforcement of law and order in Rivers State”. I have since confirmed that there are no Bar Leaders as referred to, to whom such views can be ascribed except one interested senior advocate, giving the impression to the public that only he constitutes ‘Bar Leaders’. I am one of the Bar Leaders in Rivers State. Indeed, Virtute Officii, I am the Leader of the Bar in Rivers State and I hereby state that there was no such meeting of Bar Leaders. Interestingly, the Press Release did not state where and what date the Bar Leaders’ Meeting held and who attended. To confuse this issue and obscure its understanding, the author of the release used the word ‘Body of Senior Advocates’ interchangeably with ‘Bar Leaders’ and all lawyers know that not all Bar Leaders are Senior Advocates and so not members of the Body of Senior Advocates. Further, whereas it was purported to have been issued by a Body (whether of Senior Advocates or Bar Leaders) it was contained on an individual’s letter head paper. Worse still, in using the word, ‘Bar Leaders’ the Release’s Author seems to be of the view that Elected Chairmen of the Bar Association, are not Bar Leaders. That is wrong. They are. And since they are, they are the ones to speak for the Bar Leaders and certainly not the individual who did not say he has their mandate to so speak for the Group. Each person, it must be conceded, is constitutionally empowered to speak for himself but not to confuse that individual’s constitutionally guaranteed right to free speech with speaking for a group out of presumptuousness.
It is important that we know which group, exactly, is being spoken for (Body of Senior Advocates or Bar Leaders) so that response will be appropriate to that particular group. Till those Bar Leaders (of which I am one and indeed, the Leader,) speak, the statement must remain what it is: one Senior Advocate’s agitation for a preferred candidate, emboldened by the letter from the NJC to Judges which is now understood as firmly paving the way for that Senior Advocate’s preferred candidate.
Important Historical Information:
When Justice Ichoku, former Chief Judge, retired from the state judiciary, sometime in or about August of 2001, there was no appointment of either an Acting Chief Judge or a substantive Chief Judge until November 2001 when Hon. Justice Iche Ndu was appointed and sworn in as the Chief Judge.
These ‘Bar Leaders’, were there then and even cooperated with the then Governor and for those months, they did not know or even inform the public that the months of vacuum in the Judiciary hierarchy without either a substantive or Acting head ‘will not augur well for the administration of Justice or the enforcement of Law and order’. This is curious and self-serving, even, hypocritical.
Another Historical Example:
In 2003, S.O. Benson Esq., a resourceful Port Harcourt-based lawyer was, along with five others, nominated to the NJC for recommendation to the (then) Governor, for appointment as a High Court Judge of Rivers State.
The then Governor appointed and swore in the other five and declined to accept the recommendation of Mr. Benson. In effect, the Governor declined to act on the recommendation of the NJC. His Excellency, then, did not challenge the recommendation in court – he just stated he was not accepting it and left it there and nothing happened. No ‘Bar Leaders’ spoke!
The reason given for the non-acceptance was that after the candidate’s nomination/recommendation, petitions were received from some of his community members alleging his complicity in communal disturbances in his local community in which a life was lost. Although the police later exonerated the candidate from the allegation and a panel of enquiry which indicted him had the indictment quashed by a High Court, the then Governor, still, declined to act on the NJC recommendation. That was in 2003. Ten years later, in 2013, His Excellency, Governor Chibuike Rotimi Amaechi, revisited the matter, acted on the recommendation, especially since there was both a Police Clearance and a High Court Judgment, appointed and swore in the candidate as a Judge of the High Court.
Throughout this period, these Bar Leaders and publicists for their candidate did not rise to the occasion.
It is thus clear, that the attempt to paint His Excellency, the Governor of Rivers State, Rt. Honourable Chibuike Rotimi Amaechi CON, as disrespectful to the NJC is self-serving and unfortunate.
The ‘Bar leaders’ did not condemn the previous administration which did not appoint a Chief Judge or acting Chief Judge for months, which administration did not, also, act on the recommendation of the NJC to appoint a candidate as a Judge, but is now stating that a Governor who obeyed the NJC in the Benson’s case, appointed an acting Chief Judge promptly when the vacancy existed and is unfairly now being prevented from making further Acting appointment, as assigned him by the Constitution, pending the substantive appointment of a Chief Judge, has failed to appoint an acting Chief Judge. This is unfair as it is a promotion of the now entrenched Nigerian system where those who strive to obey the system are condemned and presented to the public as disrespectful and arrogant while those who do nothing in that regard, who, infact, undermine the system for selfish reason masquerading as altruism, are commended and garlanded.
Conclusion:
The framers of our Constitution envisaged this situation as Rivers State is now, where, owing to the nature of Governance and humans and politicians, the appointment of a Chief Judge may not be concluded on time and they also knew it would be unfair and dangerous to the society and the Government, that an arm of Government, like the Judiciary, should be without a Head at any given time. It was because of this that they enacted in the Constitution that, pending such substantive appointment, the Governor should, without reference to any one, to no one whatsoever, make the appointments of Acting Chief Judge until a substantive one is appointed on recommendation of the NJC upon approval of the State House of Assembly. Neither the House of Assembly nor the NJC has any role in this acting appointment.
We salute the wisdom of the framers of the Constitution even as we appeal to the NJC to let the Governor be allowed the constitutional role granted him to appoint an Acting Chief Judge until the issue is resolved and a substantive appointment made.
Thank you.
Worgu Boms Esq.
Hon Attorney- General & Commissioner for Justice, Rivers State.
Rivers State Governor, Rt. Hon. Chibuike Rotimi Amaechi (right) with Acting Chief Judge of Rivers State, Hon Justice Peter N. C. Agumagu, after his swearing-in yesterday in Port Harcourt, recently. Photo: NAN
For The Record
BROADCAST BY HIS EXCELLENCY, SIR SIMINALAVI FUBARA, GSSRS ON TUESDAY, 18TH JUNE, 2024
For The Record
An Open Letter To President Bola Ahmed Tinubu On The Imperative Of Revisiting The Eight-Point Resolution Brokered As Truce For The Rivers Political Crisis
Your Excellency, as belated as it may come, please, do accept my congratulations on your victory in the last Presidential election, and the seamless swearing-in ceremony that ushered you in as the sixth democratically elected President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria.
Of course, your victory did not come as a surprise to many, given your antecedents as a democrat, astute administrator and, a go-getter. Whereas your track record as a political activist, especially in the wake of the annulled June 12, 1993 presidential election is self-evident; your exceptional performance as Governor of Lagos State is a clincher any day.
It is my prayer therefore, that the good Lord, who has brought you this far, guide and direct your ways to steer the ship of state aright.
That being said, Your Excellency, please permit me to commence this correspondence with an allegory drawn from our recent past. A few years ago, Chief Olusegun Obasanjo was elected Nigeria’s President on the platform of the Peoples Democratic Party (PDP). You were equally elected Governor of Lagos State on the platform of the Alliance for Democracy (AD). This electoral upshot inevitably placed you in opposition to the government at the centre.
The dust raised in the wake of the elections was yet to settle before you disagreed with then President Obasanjo. The bone of contention transcended personal vendetta, or so it seemed. Again, it happened at a time when our democracy could rightly be described as nascent. You had approached the court to seek judicial interpretation on some grey areas of our constitution, as provided for, in the concurrent list.
Much as Obasanjo would have loved to have things go his own his way, he was apparently restrained by the grundnorm. And he recognized it was within your right to seek judicial interpretation as to whether he wasn’t exercising his powers as president ultra vires. That was the rule of law at play; a classic specimen of what we fondly refer to as the beauty of democracy in our political parlance.Above all, it underscored the centrality of the constitution in resolving state matter.
Nigerians gave you thumbs up for engaging Obasanjo and the federal government all the way up to the Supreme Court. Moreover, happening at a time when the fear of President Obasanjo and the unwritten federal might were considered the beginning of political wisdom in our polity. Of course, the constitution came handy as a leveler between your good self and former President Obasanjo.
In light of the above, Nigerians naturally expect a clear departure from what the Obasanjo era and the immediate past regime offered them as constitutional democracy. Whereas it is still early in the day to rate your performance in this regard, one cannot but acknowledge that you have so far shown that you have some listening ear. Your intervention in what could have degenerated into a total breakdown of law and order in Rivers State late last year comes as a reference point. For me, stepping in to halt the ship of state from completederailment is an eloquent attestation to the fact that you place the security of lives and property, peace and harmony, and national cohesion over and above partisan interest.
You could equally have looked the other way and allow the crisis fester, since Rivers State is a PDP state. But you hearkened to the voice of reason, and that of well-meaning Nigerians, particularly, Chief Edwin Kiagbodo Clark, the leader of the Ijaw nation, and, the Ijaw National Congress (INC) to halt the drift. Notwithstanding your tight schedule, you took out time to summon the governor of Rivers State, Sir Siminalayi Joseph Fubara, his predecessor, now FCT minister, Barr. Ezebunwo Nyesom Wike and Hon. Martins Amaewhule who were the principal actors in the crisis to the Villa, and have them subscribed to a peace deal.
Although I had my reservations over the eight-point resolution ab initio, I refrained myself from joining the bandwagon in pointing out some of the obvious limitations in the document at the time. My position was informed by the following reasons. First, I didn’t see it as the wisest thing to do at a time when the crisis was raging like a wildfire. For me, nothing could have been more paramount than bringing the situation under control, which the armistice effectively accomplished. Second, I trusted your judgment, and honestly believed that you brokered the deal in good faith. I was therefore willing to give the truce the deserved benefit of the doubt by putting it to test. Finally, and most importantly, the governor who was in the eye of the storm was unwavering in restating his commitment to the terms of the truce.
However, three months after the deal was struck, I dare say, Your Excellency; that it has failed in attaining the ultimate goal of reconciling the warring factions.Instead, it had become the template for the palpable tension the state has since been grappling with. This outcome is by no means surprising to any discerning mind. And the reasons are not far-fetched. First, as I mentioned earlier, it would appear that in a bid to halt to the looming anarchy, the constitution which is the grundnorm was not properly consulted in forging the eight-point resolution. Also, a reexamination of the document reveals a certain degree of political fiat in its construct.
That the eight-point resolution has since triggered a plethora of litigations is only natural. That it has induced a near state of anomie clearly points to the inherent flaws in the document. That it has thrown up desperadoesand warmongers like Chief Tony Okocha and Engr. Samuel Nwanosike who now disparage, distract and outrightly abuse a sitting governor with reckless abandon is equally expected. As for Wike, the man believes the governor is his lackey, therefore, tongue-lashing, and outrightly threatening to give the governor sleepless nights are privileges he believes are within his right. But most worrisome, is the fact that Wike doesn’t make empty threats. In other words, backtracking on getting the governor out of office, either by hook or crook isn’t just an option.
The truth is, some of the articles in the eight-point resolution stealthily stripped the governor of the powers and aura of his office;thus exposing him to the ridicule we see today. For instance, article three directed the governor to reinstate former members of the state executive council,who had earlier resigned their appointments from the state cabinet. Truth be told, such directive to a sitting governor, in the very least, leaves a sour taste in the mouth. Perhaps, it would have been a different kettle of fish had the governor whimsically sacked the commissioners because he suspected their allegiance lay with the FCT minister. But here, these supposed honourable men and women resigned their appointments on their own volition, citing “personal grounds”.
One would have expected Your Excellency toresolve the issue a little differently given your groundedness in public and private administration; knowing that trust and mutual respect took flight the moment those commissioners handed in their resignation letters. In other words, people with obvious reservations against each other cannot truly work as a team.
The constitution expressly confers the powers to appoint commissioners on the governor of a state. It follows therefore that commissioners owe their loyalty to the governor who appoints them. While in the saddle, Wike was unequivocal in demanding a hundred percent loyalty from his commissioners. And that was what he got during his eight-year reign. Granted that the commissioners in question were all nominated by the FCT minister as we now know; the question is, was it also within his right to direct their resignation at will, and then re-direct their reinstatement because the plot to remove the governor failed?
If you ask me, requesting Wike, the nominator, to nominate fresh persons in their stead would have created more semblance of statecraft, seriousness in governance and, more importantly, saved the governor’s face. It also would have gone a long way to demonstrate that some things are beyond trifles. Put differently, the notion that a crisis of that magnitude could be resolved absent collateral damage rest on a faulty premise.
Again, article six of the eight-point resolution apparently puts the governor in a catch 22 situation. Directing the governor to re-present the state Appropriation Bill that has already been passed and signed into law to Hon. Martins Amaewhule and his co-travelers, in my humble opinion, was another sore point in the document. I doubt it was a fitting consideration for a failed impeachment that shouldn’t have happened in the first place; not after the courts have already made pronouncements on the issues.
Your Excellency, I honestly believe you didn’t intend the current stalemate between the executive and the legislative arms of government in Rivers State. Nevertheless, that is the reality on ground, as the governor, on one hand, governs the state with an infiltrated state civil service; and Martins Amaehule with his ‘Assembly’ members, working at cross-purposes with the governor, dish out all the anti-executive bills they can imagine. A case in point is the latest piece of legislation coming from the ‘Assembly’. Again, one wonders,what Assembly worth its salt, wouldseekto elongate the tenure of the current local government chairmen and councilors; knowing they were elected and sworn into office for a three-year term that expires in June? The question is, do we now enact our laws retroactively?
Now, to the crux of the matter, Wike is a man with a history of political violence. His politics thrives in an atmosphere of strife and rancour. It cannot be over emphasized that he presently seeks to overheat the Rivers polity, and possibly make the state ungovernable. He is hell bent on accomplishing the intendment of a failed impeachment. His penchant for violence explains why Rivers State under his reign wore the appalling badge of a conquered territory. The state hasn’t exploded yet, given its current tenuous peace of the graveyard,is because, Gov. Siminalaye Fubara has refused to swallow Wike’s bait. In fact, his refusal to join issues with the man he calls master, and probably heat up the polity explains why restive Wike wants 2027 switch place with 2024 in the Nigeria political calendar.
Already, his vicious supporters are on the prowl, momentarily rehearsing vandalism and arson of public and private properties, with no qualms, even in broad day light. Sadly, the license to take laws into their hands springs from standing on Wike’s mandate. This much is evident in a video that has gone viral on the cyberspace. One would have dismissedthe ongoing rampageas the man’s political trademark, except that wily Wike claims to be standing on your mandate, even though he has been most cautious in defecting to his supposedly ‘cancerous’ APC.
Your Excellency, is it not curious that Wike and his supporters are the only band daily chanting “On your mandate we shall stand, Jagaban”, one year after you had contested and won the February 25, 2023 presidential election?
Of utmost concern is the disturbing silence of the Police, the DSS and other security agencies in the face of Wike’s supporters running amok. Rather, than live up to their constitutional billing, they seem to unwittingly nudge the people to resort to self-help. And while they continue in their ostrichism, the fire is being steadily stoked by the man who thinks Rivers State is his sole enterprise, and to balm his bruised ego could unleash the unimaginable.
It is however reassuring that Your Excellency is no stranger to Rivers politics and its combustive nature. As Dr. Peter Odili’s contemporary as governors, you were well abreast of what transpired in the state from 1999-2007. You were also a major player in the Amaechi-Wike debacle while the former was the occupant of Brick House. In fact, you were purported to have saved Amaechi’s skin from the Jonathans, when, in cahoots with Wike, they unleashed the federal might.
You saw Rivers State went upin flame from 2013-2019, all for Wike to succeed his Ikwerre brother as governor in a multi-ethnic state. You were also witnessto how thepolitically induced inferno incredibly extinguished itself as soon as Wike’s vaulting ambition was achieved. But while the carnage last, Rivers people lost their lives in their hundreds.
As governor, and for eight years, Wike ruled like a demigod, and the state, his footstool. He literally vetoed the constitution on Citizens’ Rights, Freedom of Speech, Freedom of Association, Procurement, and Social Justice. In fact, one of the lion-hearted among us aptly tagged the Wike-era as the years of the Rivers of Blood.
Your Excellency, there is no better way to say Rivers State is presently sitting on a keg of gunpowder, while drifting daily towards the precipice. And if something is not done urgently to avert a repetition of its recent ugly past, tomorrow may be too late.
I have personally bemoaned the lot of the Rivers man since the dawn of the fourth republic in my book: The Rivers Season of Insanity. I would spare you the details therein. However, it may interest Your Excellency to know that as a Rivers man; I have tremendous respect for you, just as I envy what you have made of Lagos State. I’m therefore genuinely bothered that Rivers State may just be the odd state out as you are set to replicate the Lagos wonder across the federation. Rivers State can only andtruly share in the Renewed Hope, if Wike is restrained from plunging it into another round of bloodletting.
Much as it is the truth, I hate to reiterate, that in all her abundance, Rivers State can only boast of the loudest and most vaulting chief executives ever, since 1999. The allure to graduate from Brick House to Aso Villa has become an elixir, which those we elect to govern have not been able to extricate themselves from. And to make a bad situation worse, it remains the only state in Nigeria that flaunts an obnoxious injunction that insulates her past and serving governors from the ethics of good governance, such as transparency, accountability and probity.
I have no doubt in my mind that you already saw through Wike and his antics. And it is only a matter of time before you reined him in. My concern however, is that it shouldn’t happen only after he must have thrust the state into another round of massacre. Need I say, that going by his claim, what Wike delivered in last year’s election were Rivers votes, not his votes.
Ask the Jonathans if their alliance with Wike was worth the trouble, given the benefit of hindsight, and your guess will be as good as mine.
In a nutshell,Your Excellency, Rivers State has had more than her fair share of bloodletting since 1999. It is against this backdrop that I most fervently pray that the blood of Dr. Marshall Harry, Chief A. K Dikkibo, Hon. Monday Ndor, Hon. Charles Nsiegbe, Amb. Ignatius Ajuru, Hon. Monday Eleanya, Barr. Ken Aswuete and several other victims of assassination be allowed to water the peace initiative and advocacy of the incumbent governor.
Finally, Your Excellency, in view of the above, it is my humble submission that the eight-point resolution be revisited with the hope that it guarantees sustainable peace and harmony in the Rivers polity.
“The time is always right to do what is right.”
-Martin Luther King Jr.
Thank you for time and consideration.
Yours Respectfully,
Caleb Emmanuel Fubara
Fubara hails from Opobo Town
Background
On Thursday, February 15, 2024 at its 109th Legislative sitting, the House passed into Law, the Rivers State House of Assembly Service Commission (Amendment) Bill, 2024. The Bill repealed the Rivers State House of Assembly Service Commission (Amendment) Law, No. 3 of 2006 and further amended the Rivers State House of Assembly Service Commission Law of 1999. The Bill was sent to the Governor for his assent and after the statutory 30 days, the House re-passed the Bill into Law on 22nd March, 2024.
The Rivers State House of Assembly Service Commission was established by the Rivers State House of Assembly Service Commission Law of 1999. Section 2 provides:
“The Commission shall comprise a Chairman and four other members who shall in the opinion of the Speaker be persons of unquestionable integrity.
“The Chairman and members of the Commission shall be appointed by the Rivers State House of Assembly acting on the advice and recommendation of the House Committee of Selection and shall in making the appointment be guided by the geographical spread and diversity of the people of Rivers State.”
The above section was repealed by the Rivers State House of Assembly Service Commission (Amendment) Law No 3, 2006. In Sections 2 and 3, the Amendment Law provides that:
S. 2 “Section 2 of the Principal Law is amended by repealing subsection (1) and substituting the following subsection:
“(1) The Commission shall comprise a Chairman and 4 (four) other members.
S. 3 “Section 2(2) of the Principal Law is amended by repealing subsection (2) and substituting the following subsection:
“(2) The Chairman and members of the Commission shall be appointed by the Governor subject to the confirmation by the House of Assembly and shall in making the appointment be guided by the geographical spread and diversity of the people of Rivers State.”
The import of the 2024 Amendment Bill passed into Law by the House is that the Governor will no longer have the power to appoint the Chairman and members of the Rivers State House of Assembly Service Commission and the power of appointment shall be vested in the House of Assembly.
Legal Issues
The first issue to consider is the Constitutional power of the Governor. Section 5(2) of the Constitution of the Federal Republic of Nigeria, 1999 provides that the executive powers of the State shall be vested in the Governor of that State.” Further, Section 176(2) provides that: “The Governor of a State shall be the Chief Executive of that State.”
This follows that the Governor is the Chief Executive Officer of the State Government and by the powers vested on him, is responsible for making appointments into various executive bodies, subject to the provisions of the 1999 Constitution and other statutes. All Commissions and other parastatals are executive bodies under the control of the Governor. The House of Assembly Service Commission is an executive body and as such, the Chairman and members can only be appointed by the Governor. The House of Assembly has no powers to make any appointment into an executive body as no statutory body is under the control of the legislature. The Rivers State House of Assembly should not mistake the presence of the building of the Service Commission in its premises as conferring powers on the House to appoint the Chairman and members of the Commission.
The second issue to consider is the Constitutional alteration of 2023. In that alteration, the Third Schedule was amended to include State Houses of Assembly Service Commissions, which invariably follows that a State House of Assembly Commission is one of State bodies established by section 197 of the 1999 Constitution. Let’s be reminded that Section 198 of the 1999 Constitution gives the Governor the power of appointment into various executive bodies, subject to confirmation by a resolution of the House of Assembly of a State. The job of the Rivers State House of Assembly ends with the confirmation of the appointees.
The alteration to the Third Schedule, paragraph 1A provides that the composition, tenure, structure, finance, functions, powers, and other proceedings of the Commission shall be as prescribed by a law of the House of Assembly of the State. Notice that the appointment of the Chairman and members of the Commission is not listed. Therefore, it can be safely inferred that the power to appoint the Chairman and members of the House of Assembly Service Commission lies with the Governor, as is the case with the other bodies listed under Section 197 of the 1999 Constitution.
There is nothing in the Alteration that, by any stretch of imagination, can be inferred to confer the power of appointing the Chairman and members of the Rivers State House of Assembly Service Commission on the Rivers State House of Assembly, notwithstanding the fact that the law creating the Commission was enacted by the Rivers State House of Assembly.
Thirdly, is the Rivers State House of Assembly Service Commission and its staff under the control of the State Government? To answer this question, we will take our voyage to Section 318 of the 1999 Constitution. That section gives the definition of a Public Service of a State to mean: “the service of the state in any capacity in respect of the government of the state and includes service as: clerk or other staff of the House of Assembly; member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal or other courts established for a state by the Constitution or by a law of a House of Assembly; member or staff of any Commission or authority established for the state by this Constitution or by a law of a House of Assembly; staff of any Local Government Council; staff of any statutory corporation established by a law of a House of Assembly; staff of any educational institution established or financed principally by a government of a State; and staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest.
The purport of this section is that the Assembly Service Commission is not an appendage of the legislature but under the control of the State Government. Even at the national level, the members of the National Assembly Service Commission are appointed by the President in collaboration with the National Assembly.
Fourthly, what is the position of the Rivers State House of Assembly Service Commission Law vis-à-vis the National Assembly Service Commission Act? Section 4(5) of the 1999 Constitution provides: “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall, to the extent of inconsistency, be void.”
Further, in A.G Bendel v AG Federation & 22 Ors (1982) 3 NCLRI, the Supreme Court held per Fatayi Williams CJN (as he then was) “neither a State nor an individual can contract out of the provisions of the Constitution. The reason for this is that a contract to do a thing which cannot be done without a violation of the Law is void.”
The fifth issue is: “can a statute revive a repealed statute?” In the case of Idehen v University of Benin, Suit No FHC/B/CS/120/2001, delivered on 19th December, 2001, the court held that:
“Contrary to the contention of the University, the effect of a repealing statute is to erase the repealed statute from the statute book. When a statute is repealed, it ceases to exist and no longer forms part of the laws of the land. In other words, the effect of the repeal is to render the repealed statute dead and non-existent in law. Like a dead person, it cannot be revived.”
The court also held in Onagoruwa v IGP (1991) 75 N.W.L.R (pt. 193) 593 that in law, a non-existent statute is dead and cannot be saved or salvaged by the court.
In Madumere v Onuoha (1999) 8 NWLR (Pt. 615) Pg 422, the Court of Appeal held that:
“the effect of repealing a statute is to obliterate it completely from the records of the Parliament as if it had never been passed. Such a law is to be regarded legally as a law that never existed…This means in effect that when a statute is repealed, it ceases to be an existing law under the Constitution of the Federal Republic of Nigeria.”
For the purpose of reviving your memory, the provision giving the Governor the power to appoint the Chairman and members of the Rivers State House of Assembly Service Commission under the repealed 2006 Law provides in its opening paragraph:
“3. Section 2(2) of the Principal Law is amended by repealing section 2 and substituting the following section…” (emphasis mine).
Further, Section 6(1)(a) of the Interpretation Act provides:
“(1) The repeal of an enactment shall not revive anything not in force or existing at the time when the repeal takes effect.”
Please note that Section 318(4) of the 1999 Constitution provides that “The Interpretation Act shall apply for the purposes of interpreting the provisions of this Constitution.”
It follows from the above that the House cannot repeal Sections 2 and 3 of the Rivers State House of Assembly Service Commission (Amendment) Law No 3, 2006 to revive the already repealed provisions of the 1999 Law.
Conclusion
In conclusion, the Rivers State House of Assembly lacks the powers, legal or otherwise, to remove the power of appointment of the Chairman and members of the Rivers State House of Assembly Service Commission from the Governor and vest that power on themselves. The provision in the Rivers State House of Assembly Service Commission (Amendment) Law, 2024 seeking to vest that power on the House is in clear contravention of the 1999 Constitution, and therefore, a nullity in the eyes of the Law. See the case of MacFoy v UAC (1961) 3 All ER 1169 where the court held that you cannot put something on nothing and expect it to stand.
In that case, Lord Denning stated: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without more ado, though it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
Rt Hon Ehie is Chief of Staff, Government House, Port Harcourt.
By: Edison Ehie
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