Governor Douye Diri, It Is Unconstitutional To Govern Without A Cabinet

By Agbada S. Agbada

It has been five months since His Excellency, Governor Douye Diri was sworn in as the 5^th Governor of Bayelsa State following the February 13, 2020 judgment of the Supreme Court voiding the election of David Lyon of the All Progressives Congress. The Governor is however yet to constitute his cabinet and has continued to govern like a sole administrator. But is he constitutionally empowered to govern without a cabinet? This short piece addresses the constitutionality of the continued governance by Governor Diri without a cabinet.

Section 192(1) of the Federal Republic of Nigeria, 1999 (as amended) (“the Constitution”), provides that “there shall be such offices of Commissioner of the Government of a State as may be established by the Governor of the State.” Sub-section (2) of section 192 provides for the appointment of commissioners of the State with special requirement to adhere to federal character as provided for in section 14 of the Constitution. Both the provision on the establishment of the offices of Commissioners and the appointments thereto are couched in mandatory terms with the use of the word ‘shall’. Therefore, the establishment of the offices of Commissioner and the appointment to those offices are not at the pleasure of the governor; they are binding constitutional obligations that require compliance.

The Constitution is however silent on the timeframe for appointment of Commissioners upon the assumption of office by a Governor. It may therefore be argued that the Governor may appoint commissioners at his convenience. This line of argument would also imply that a mere delay in the appointment of Commissioners would not constitute a constitutional infraction. These arguments, when assessed only against the absence of a timeframe for appointment in the Constitution may appear persuasive. However, section 193(2) of the Constitution provides that the Governor of a State shall hold regular meetings with the Deputy Governor and all the Commissioners of the Government of the State for the purposes of determining the general direction of the policies of the Government of the State, coordinating the activities of the Governor, Deputy Governor and the Commissioners of the State in the discharge of their responsibilities and advising the Governor generally in the discharge of his executive functions. This requirement of regular meetings implies that a Governor cannot govern without conferring with Commissioners for an indefinite or inordinate period.

The above provisions of section 193 of the Constitution which mandate the Governor to hold regular meetings with the Deputy Governor and Commissioners for the purposes set out in the said section makes the input and role of Commissioners in the governance of a State indispensable. In view of this requirement of regular meetings, a governor is not at liberty to govern and take policy decisions without Commissioners. The Constitution recognizes the role of Commissioners of a State as critical to the formulation and implementation of the policies of a State and their role in governance cannot be overemphasized.

Governor Douye Diri has however been running the affairs of the State without an Executive Council for 5 months. He has not also offered any explanations for the reasons behind his continued sole administration of the State. While it may be reasonable for a Governor to require some time to settle down after inauguration before constituting his Executive Council, governing for 5 months and more without an Executive Council is unreasonable. The delay in constituting an Executive Council may also be interpreted as a lack of preparedness. An aspirant to the office of Governor would be reasonably expected to not only have a clear roadmap of his agenda but also a clear idea of the persons with or through whom he plans to implement that agenda. It is therefore not expected that a Governor would assume office before groping for persons to constitute his cabinet.

The delay in appointing commissioners is also reminiscent of the first coming of Buhari as a civilian President. It would be recalled that the President who was sworn in on 29 May 2015 only forwarded a list of his Ministerial Nominees to the Senate in September 2019 for screening. The President was excoriated by Nigerians for this delay in constituting his cabinet and apparently avoided the ire of Nigerians in 2019 by forwarding the list of his Ministerial Nominees within 2 months of his inauguration.

Governance cannot be in full throttle without an Executive Council. Governance is a complex business that requires a pool of hands and heads with the constitutional mandate to formulate and implement the policies and decisions of the Government, and the Constitution does not contemplate or accommodate a situation where an Executive Governor will run the affairs of a State without an Executive Council for an extended period.

COVID-19 has presented easy excuses for all kinds of defaults and it will not be surprising to see it being relied upon by the Governor as the reason for the inordinate delay in constituting a cabinet. However, the disruptions and untold hardships wrecked on governments and their societies have also reinforced the need for innovation and creativity in governance. Governance now more than ever requires the expertise, ideas and energies of all relevant individuals and officials to navigate this very difficult period to restore hope and build prosperity. In other words, all hands need to be on deck to successfully address the challenges caused by the pandemic. It is an unsuitable time to govern a state as a sole administrator.

It is important to remind the Governor that once upon a time, the failure of Alhaji Balarabe Musa of Kaduna State to constitute a cabinet was exploited as the ground for his impeachment in 1981 by the Kaduna State House of Assembly even though the same House of Assembly had rejected the lists of Commissioner Nominees of Balarabe Musa. While we do not expect Governor Diri

to suffer the fate of Balarabe Musa, the precedent in the Balarabe case underscores the fact that failure to constitute a cabinet has been established as an impeachable conduct. Bayelsa State is in dire need of good and effective leadership and a good number of Bayelsans (including me) believe Governor Douye Diri has the potential to translate that aspiration into a reality. Therefore, the delay in putting together a competent team to commence governance in earnest, in addition to being unconstitutional, comes as a disappointment.

Agbada S. Agbada is a Lagos based legal practitioner and can be reached on stephen.agbada@yahoo.co.uk.