Transition: Governors-elect have no power to issue directives —SANs

                             Unequal justice as state policy

Governors-elect will be jumping the gun by issuing orders or directives when they have not been sworn in, Senior Advocates of Nigeria (SANs) said yesterday.

According to them, a governor reserves the right to carry out his functions in public interest even on the eve of his exit.

The SANs said governors cannot halt their executive functions merely because their terms are about to end.

They have a supporter in the President/ Chairman of Council, Chartered Institute of Bankers of Nigeria, CIBN, Uche Olowu, who says directives by some governors-elect that banks should stop financial dealings with sitting governors are not known in law.

All a governor-elect can do, the SANs pointed out, is to reverse some of the actions taken by his predecessor when he assumes office if there is a valid reason to do so.

However, a governor-elect can issue an advisory (caveat) where an act by an outgoing governor is obviously not in public interest, one of the SANs said.

Those who spoke in different interviews with our correspondents are leading constitutional lawyers Chief Mike Ozekhome (SAN), Mr Tayo Oyetibo (SAN) and Mr Abiodun Owonikoko (SAN).

It was against the background of statements by some newly elected governors complaining about the actions of the incumbents which they perceive as creating problems for them on assumption of office.

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Ozekhome said: “Any governor-elect who has not yet been sworn in and who will not be sworn in until May 29 remains what he is – a governor-elect. He does not have the powers of the governor of a state until he subscribes to the oath of office as governor.

“Even the immunity extended to sitting governors under Section 308 of the 1999 Constitution cannot yet avail a governor-elect.

“A governor-elect is not yet immune to prosecution because the cloak of immunity cannot be adorned him until May 29 when the Chief Judge of a state swears him in as a governor.

“If we understand it from this angle, then it becomes as crystal clear as a clear sky that no governor-elect has the constitutional or legal powers to determine the direction of a state until he is sworn in.”

Ozekhome said governors-elect must wait for their time to come before issuing directives, adding that “they are still in the gestation period when the pregnancy has not yet given birth to a child”.

Owonikoko said governors have fixed tenures in office after their due return at an election, and cannot act or perform the functions of their office until they have declared their assets as required by the constitution and thereafter sworn into office by taking the prescribed oath.

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“It is that oath taking that activates their term in office which is for a maximum term of four years.

They cease to be governors-elect only after they are sworn in and their four-year-tenure begins to run, not a second or minute earlier.

“The governors-elect are jumping the gun by interposing or issuing directives on confidential state finances or on state functionaries or programs while the incumbents are yet to run their full term.

“Issuing orders which are executive in nature to countermand directives of incumbents who have not run out of their full term is tendentious. It can cause breach of public peace or breakdown in chain of command in governance in a state.

“At the very least, the incumbent, for the time being , will within his right, in deserving cases, cause the appropriate court to bind such governor-elect over to be of good behaviour, on pain of imprisonment if he disobeys,” Owonikoko said.

For Oyetibo, the authority of a governor starts when he is sworn into office.

According to him, a governor-elect has no constitutional power to direct banks to stop honouring cheques issued by an outgoing governor.

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“I think it (the governor-elect’s statement) is merely cautionary, but the authority of a governor starts when he is sworn into office. That is clear,” he said.

According to Oyetibo, there is no limit to the power of an outgoing governor in spending budgeted funds, as well as awarding fresh contracts. But the power must be exercised with wisdom, he noted.

Oyetibo said: “There is no limit to the authority of an outgoing governor in spending, but it is not everything that is lawful that is expedient.

“If you are going out of office and you are rushing to award contracts, then there could be some sort of suspicion being raised as to the genuineness of the contract. You have to balance the situation.

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