APPOINTING CARETAKER OFFICERS IN EDO STATE

 Washington Osa Osifo argues that caretaker committees are aberration to the constitution

 Elected chairmen and councilors of the 18 local government councils in Edo State completed their tenure in office since 2020. However, since then, the Governor of Edo State, Mr. Godwin Obaseki, has refused to conduct an election to elect other officials for these councils. Rather, he proceeded, first by handing over the control and management of these councils to civil servants, tagged head of local government administration (HOLGA), and they held rein in office for almost a year and a half. 

There was also the series of scheduling and postponement of election till recently when the governor purportedly sent some names of persons to group acolytes he refers to as ‘House of Assembly’, parading such persons as “liaison officers” to administer these local government councils.  Again, this is an act of illegality that must not be allowed to stand. Accordingly, I proceed to examine and expose the unconstitutionality of the proposed contraption by whatever nomenclature it is proposed by the governor.

There are legal issues arising from the above – having regards to the clear and unambiguous provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the subsisting judgment of the Supreme Court, it is abundantly clear that the governor’s action which foisted these nominees as the epitome of administration in these councils is patently unconstitutional and illegal and this is because section 7(1) of 1999 Constitution (as amended), provides that the system of local government by democratically elected local government councils is under this constitution guaranteed; accordingly, the government of every state shall subject to section 8 of this constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils. 

Additionally, Section 1 (2) of the extant constitution provides that the Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the government of Nigeria or any part thereof except in accordance with the provisions of this constitution. 

Reasoning from the above, caretaker committees are an aberration to the extant constitution. Caretaker committees offend Section 1 (2) of the extant constitution, wherein state governors take control of local government councils, by appointing chairmen for the local government council without regards to constitutional provisions. 

In the same vein, Section 1 (3) of the extant constitution provides that – If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other laws shall to the extent of the inconsistency be void. 

It also added that any law made by any state house of assembly in Nigeria that gives power to caretaker committees to administer local government councils is voided because the law is inconsistent with the provisions of the extant constitution, and the constitution shall prevail. 

Furthermore, the 1976 Local Government reform also defines local government as – Government at the local level is exercised through representative councils constituted by law to implement and exercise powers within a defined area. These powers give the council substantial control over local affairs including staffing, institutional and financial powers to initiate and direct the provision of service and to determine and implement projects so as to compliment the activities of the state and federal governments in their areas, and ensure, through devolution of these functions to those councils and through the active participation of the people and their traditional ruler.

Clearly, this provision is very direct and explicit; it does not require any intrinsic interpretative skills to decipher the legislative intent behind these laws. Therefore, it is clear that local government administration can only be done under the control and management of democratically elected officials, not “selected” or “appointed” officials. 

Secondly, this section also imposes on state government, in this case both the Executive and Legislative arms of government to enact a law that must specifically address the issue of the establishment, structure, composition, finance and functions of local government councils.  

Furthermore, these obligations are couched in imperative term “shall”, and as it has been resolved in a plethora of judicial authorities, once the preposition “shall” is used in any legislation, it imposes a mandatory duty on the officer or institution and it equally robs that officer or institution of any discretion in the matter.

Flowing from the above, permit me to draw your attention to classic cases like AMADI V N.N.P.C (2000) 10 NWLR (PT.674) 76 at 97, AMADI V ACHO (2008)12NWLR (PT.939) 386. Accordingly, there are two layers of violation of the constitution by a governor can be identified herein, firstly, the deliberate and mischievous “appointment” or “selection” of non-democratically elected persons to man the affairs of local government in the country. 

Secondly, the refusal or neglect by the government to enact a law on election and governance.  It is submitted that these infractions are justiciable and are grounds for the impeachment of a governor pursuant to section 188 of the 1999 Constitution (as amended).  

More specifically, on the appointment of “caretaker committees”, the Supreme Court emphatically held in the suit filed by the former chairmen and councilors of the local government councils in Ekiti State, that the then Governor – Kayode Fayemi, lacked the constitutional powers to dissolve democratically elected chairman and councilors. The apex court equally held that it was unconstitutional for the governor and the State House of Assembly to attempt to “appoint” persons to replace these democratically elected officials of the council. 

Similarly, the Supreme Court also intervened in a similar imbroglio in Oyo State, when the current Governor Seyi Makinde purportedly dissolved democratically elected council chairmen in Oyo State and purported to replace them with “caretaker committee”. 

Thus, clearly the issue of whether it is legal or constitutional to “appoint” or “select” persons not elected through a democratic means at the local government level has long been settled.

In the case of Edo State, whereas, Governor Obaseki now purports to “appoint” some persons as administrators in the local government councils, there is a specific pending High Court judgment that prevents him from doing so. 

Specifically, in SUIT NO: B/2/OS/2013: TONY ABUMERE OKONIGENE V THE GOVERNOR OF EDO STATE & 2ORS,  the Court presided over by Honourable Justice T. Akomolafe-Wilson held that by virtue of the provisions of sections 7(1) of the 1999 Constitution (as amended) and more specifically, section 10(4) – (10) of the Edo State Local Government Amendment Law of 2000, the Governor lacked the powers to handpick and recommend persons not democratically elected for appointment as members of a local government transition committee.

Accordingly, in the light of  the valid and subsisting judgments of the Supreme Court which has resolved this issue and more importantly, the judgment of the High Court referenced above, in which the Governor and the Edo State House of Assembly were named parties, the Governor has no right whatsoever to disobey these judgments by purporting to “handpick” “nominate” or “recommend” the persons he purports “appoint” as members of a “caretaker committee” or “liaison officers” in the 18 local government councils in the state. 

More fundamentally, the governor’s move amounts to contempt and it is punishable accordingly. It is expected that the Attorney-General and Commissioner for Justice of the State will do the needful and advise the governor accordingly – this is because, it is the Attorney General that would be docked for contempt if the chips are down, in view of the governor’s immunity. 

However, same cannot be said of the governor’s contraption called “Edo State House of Assembly”, if they lend themselves, as they have always done to the disobedience of these court judgments by accepting any names of such persons and purportedly “clearing” and “approving” them for “appointment” as they have purportedly done.

Let me state at this juncture that there’s a standard script at play – since assumption of office by Mr. Godwin Obaseki on November 12, 2016, the generic standard governance style has been defined by consistent push to suppress and undermine the principles and values of democratic government. He has continued to lend himself to the vainglorious surge of raw instincts and impulses, primarily driven by self-interest and self-preservation. 

The dictatorial politics of the governor is sharply contradictory and incongruous with the rebooted new world order anchored on democratisation of almost all aspects of life. How else can any intelligent neutral analyst rationalise the embarrassment of running a democratic government without legitimate legislature? How can any citizen of Edo State have a feeling of freedom and liberty in a state where the judiciary has been weakened and manacled? How can citizens of the state be free in an environment where governor announced to the World that security operations have planned for a part of the capital city only to wake the following morning to see bulldozers destroying houses of an entire district under the protection of military tanks? The list of democratic aberrations committed by the governor is endless. 

 Osifo, PhD writes from Benin City, Edo State