5 January 2020
On the 24th day of December, 2019, Governor Benedict Ayade swore in about 39 persons as Commissioners in the Government of Cross River State. After swearing in the said Commissioners, the Governor allocated ministries to them to take charge of.
Certain persons, to wit; Jake Otu Enyia, Thomas Udam and George Obenechi, were appointed to take charge of the ministries of Aviation, Foreign Affairs and Solid Minerals, respectively.
I know as a fact that the Governor of Cross River State has no business and powers, constitutionally speaking, with Aviation, Foreign Affairs and Solid Minerals, which are matters listed on the Exclusive Legislative list.
The Governor’s action, apart from being a direct affront on the sanctity of the Constitution, has also made Cross River State and Cross Riverians a butt of cruel jokes. We cannot stand by and watch this comedy in governance continue.
I hereby call upon the Governor, within 48 hours, to reverse the creation of the Ministries of Aviation, Foreign Affairs, Solid Minerals and any other illegal ministry he has created in direct contravention of the Constitution. If the Governor fails to heed this call within 48 hours, I will proceed to file a suit challenging his action of creating these ministries in a court of competent jurisdiction.
The powers of the Governor of Cross River State to create Government Ministries and appoint Commissioners to run these ministries was donated to him by section 5, subsection 2 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This said Section 5 states as follows:
“(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
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”
Section 193 (1) of the Constitution throws more light on the Governor’s powers to appoint Commissioners thus: “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.”
The Governor only has powers to create ministries and appoint commissioners “in execution and maintenance of:
a) this Constitution, (the 1999 Constitution)
b) all laws made by the House of Assembly of the State
c) and to all matters with respect to which the House of Assembly has for the time being power to make laws.”
In other words, if the Governor created a ministry or appointed a Commissioner which is not directly in maintenance of the Constitution or any law made by the House of Assembly (even if there is any such law made by the CRSHOA, it will be illegal as long as it touches on an item on the Exclusive Legislative List), it must be in a matter or area where the House of Assembly has for the time being power to make laws.
The “Exclusive Legislative List set out in Part l of the Second Schedule to this Constitution”, will show that Aviation, Foreign Affairs and Solid Minerals are listed as items 3, 26 and 39 respectively; meaning these are matters included in the Exclusive Legislative list which the Cross River State House of Assembly has for the time being NO powers to make laws on. And thus the Governor of Cross River State cannot exercise executive powers in these areas by creating ministries or appointing Commissioners in these areas.
It was held in the case of A.G Abia & Ors vs A.G Federation (2004 – 2007) 3 LLRN p. 1260 (Page 1326, Para 25-45; Page 1327, para 5), that a person or body named in the constitution with its functions spelt out therein cannot perform any other statutory function which is not borne out of the Constitution.
It was held in the case of Anyaoha vs Obioha (2014) 6 NWLR (Pt. 1404) p. 445, that the Constitution is a very serious document and should not be treated with levity.
I will hold further legal argument on this issue for the courts, in case the Governor fails to heed this call. I hope, as lawyer who is at present pursuing his LLM, he will heed to the voice of the law.
In the end, for whatever it is worth, it would not be said we all stood by and I did nothing.
First Baba Isa (FBI) is a Legal Practitioner and writes form Abuja.
meandisa@gmail.com; 07037162029.
