The question, however, remains: does the Attorney-General of the Federation have the Constitutional or any statutory power to direct or command the Chief Judge of Bayelsa State to cross over to Rivers State on May 29, 2015 to administer the said oaths, as if he were a judicial officer on assizes? Is the Bayelsa State Chief Judge answerable or responsible to the AGF as to be subject to his dictates or directives or advisories (or those of either of the Attorney-General of Rivers State or Attorney-General of Bayelsa State)?
On May 19, 2015, the Learned Attorney-General of the Federation, Muhammed Adoke (SAN) reportedly assigned (appointed, nominated or directed) the Chief Judge of Bayelsa State to administer the Oath of Office and the Oath of Allegiance to the Rivers State Governor-Elect and the Deputy Governor-Elect. The duty to administer that oath ought, ordinarily, to be discharged by the Chief Judge of Rivers State. But in view of the fact that the Rivers State Judiciary is embroiled in a Chief Judge Appointment crisis, which has paralysed the courts and rendered the Office of the Chief Judge of Rivers State vacant, Rivers State has no substantive Chief Judge at the moment that can perform that duty, except a Chief Judge is recommended by the State Judicial Service Commission to the National Judicial Council (NJC), approved and in turn recommended for appointment by the NJC to the Rivers State Government, confirmed by the Rivers State House of Assembly and then appointed and sworn in by the Governor, Rotimi Amaechi, all before May 29th, 2015, to enable the Chief Judge perform that role.
Obviously, the step that the AGF has taken is calculated to avert a looming constitutional crisis, a situation in which the Rivers State Governor-Elect and his Deputy cannot be sworn in on May 29, 2015, because Rivers State does not have a Chief Judge. The question, however, remains: does the Attorney-General of the Federation have the Constitutional or any statutory power to direct or command the Chief Judge of Bayelsa State to cross over to Rivers State on May 29, 2015 to administer the said oaths, as if he were a judicial officer on assizes? Is the Bayelsa State Chief Judge answerable or responsible to the AGF as to be subject to his dictates or directives or advisories (or those of either of the Attorney-General of Rivers State or Attorney-General of Bayelsa State)? Is the infamous doctrine of necessity, from which President Goodluck Jonathan circumstantially and initially derived his acting presidential legitimacy, by the grace of the National Assembly, so elastic, that it now provides a precedential pedestal permitting an AGF to intrude obtrusively into the “Constitutional headache” of a State in the Federation in order to force a resolution of a gubernatorial inauguration conundrum or dilemma? Is the path chosen by the AGF a path of constitutionality or a road of arbitrariness and executive lawlessness? We provide answers to these posers below.
The Constitutional provision in focus is Section 185(1&2), and Section 187(2) of the Constitution of the Federal Republic of Nigeria, 1999. The Sections provide as follows: Section 185(1 &2), “A person elected to the office of the Governor of a State shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed in the Constitution and has subsequently taken and subscribed the Oath of Allegiance and Oath of office prescribed in the Seventh Schedule to this Constitution; (2) The Oath of Allegiance and the Oath of Office shall be administered by the Chief Judge of the State or Grand Kadi of the Sharia Court of Appeal of the State, if any or President of the Customary Court of Appeal of the State, if any, or the person for the time being respectively appointed to exercise the functions of any of those offices in any State.”
But we all know that for, “allegedly presenting himself to be sworn in as the Chief Judge of Rivers State in disregard of and disobedience to the preference and wishes of the NJC, that President of the Rivers State Customary Court of Appeal is now on suspension. Thus, no Chief Judge of Rivers State or President of Rivers State Customary Court of Appeal is available to perform the role of oath administration for the Rivers State Governor Elect and the Deputy Governor-Elect
Section 187(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.”
A literal or even a liberal reading of these provisions, either in isolation of the other provisions of the Constitution or together with the rest of the provisions in the Constitution (in order to better bring out the import and true meanings of the provisions), clearly reveals that the framer of the Constitution anticipated that in lieu of a Chief Judge, who may not be available to discharge the constitutional duty of administering the oaths, “the Grand Kadi of the Sharia Court of Appeal of the State, if any or President of the Customary Court of Appeal of the State, if any, or the person for the time being respectively appointed to exercise the functions of any of those offices in any State” may carry out the duty of administering the oath.
Rivers State has no Grand Kadi of the Sharia Court of Appeal or any Sharia Court for that matter. But it has a Customary Court of Appeal who had a President. Unfortunately, that President was the judicial officer preferred by the Rivers State Government to be appointed to the Office of the Chief Judge of Rivers State. But we all know that for, “allegedly presenting himself to be sworn in as the Chief Judge of Rivers State in disregard of and disobedience to the preference and wishes of the NJC, that President of the Rivers State Customary Court of Appeal is now on suspension. Thus, no Chief Judge of Rivers State or President of Rivers State Customary Court of Appeal is available to perform the role of oath administration for the Rivers State Governor Elect and the Deputy Governor-Elect.
Our position is that the AGF lacks the vires to command a Chief Judge of a contiguous state or of any state in the Federation to act as a “meddlesome interloper” in Rivers State in order to resolve a looming constitutional impasse. The constitutional provisions on oath administration and the provisions of the Oath Act of the Federation and the respective Oath Laws of the States regarding the Offices of President, Vice-President, Governor and Deputy-Governor are very clear.
What then is to be done to avert a situation in which the Rivers State Governor-Elect and the Deputy Governor-Elect are not sworn in come May 29?
It is our considered view that the person, for the time being, respectively appointed to exercise the functions of any of those offices in any State, “may carry out the duty of administering the oath. In other words, the Chief Judge of any State of the Federation (and if the Chief Judge of a selected State is not available, the Grand Kadi of the Sharia Court of Appeal of the State, if any or President of the Customary Court of Appeal of the State, if any) may carry out the inaugural oath administration.” It is, therefore, our submission that the Chief Judge of Bayelsa State or the Chief Judge of Lagos State or the Chief Judge of any of the Southern States of the Federation that has a Customary Court of Appeal can carry out the duty of administering the oath in Rivers State, in the circumstances, if properly and rightly directed.
Our position is that the AGF lacks the vires to command a Chief Judge of a contiguous state or of any state in the Federation to act as a “meddlesome interloper” in Rivers State in order to resolve a looming constitutional impasse. The constitutional provisions on oath administration and the provisions of the Oath Act of the Federation and the respective Oath Laws of the States regarding the Offices of President, Vice-President, Governor and Deputy-Governor are very clear. Administering the oaths is the exclusive business of the Judiciary. The AGF is a lawyer, no doubt, but he functions in the Federal Executive Branch of Government.
It is our considered view that on the strength of these provisions, a sincerely troubled and genuinely concerned AGF could send a petition to the NJC, urging it to make the necessary and appropriate directives in the circumstances.
In order to avoid the subversion of the principles of separation of powers and checks and balances, carefully and deliberately grafted into the Nigerian Constitution, the AGF must avoid giving patently illegal directives to the heads of the Judiciary to perform their duties. Any such directive is constitutionally baseless and politically reckless.
Section 153 of the Constitution establishes the National Judicial Council (NJC). By the Third Schedule, Part 1, Section 21, Paragraphs f and i, the National Judicial Council shall have the power to “advise the President and Governors on any matter pertaining to the Judiciary as may be referred to the Council by the President or the Governors, and “to deal with all other matters relating to broad issues of policies and administration”.
It is our considered view that on the strength of these provisions, a sincerely troubled and genuinely concerned AGF could send a petition to the NJC, urging it to make the necessary and appropriate directives in the circumstances. In the alternative, the Attorney-General of the Federation could file an originating summons in the Supreme Court against the Attorney-General of Rivers State and those of the Other States in the Federation, formulating relevant questions and requesting for reliefs that will strengthen the rule of law and grow our constitutional jurisprudence.
The office of the AGF should be very resourceful and imaginative.
Jiti Ogunye, lawyer, public interest attorney, legal commentator, author, and essayist, is the Legal adviser to Premium Times.
