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

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.

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.

“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.

“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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