I woke up this morning to see the well researched piece of my friend and brother, Aluzu Ebikebuna Augustine on Governor Division’s letter to INEC, asking the Commission not to hold election on the 2nd of November, 2019, being that the same day has been set aside as a public holiday.
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In the concise and thought provoking article titled, ”INEC Can Hold The Governorship Election In Bayelsa State On November 2nd: A reply to Gov. Dickson And Zilly Aggrey”, Mr. Aluzu had argued that the Public Holiday’s Act is an Act to repeal all the State Laws on Public Holidays and to make provisions for the whole of the Federation for public holidays and other related matters. Citing item 51 of the Exclusive Legislative List, the advocate was right in his excellent submission.
The summary of it is that, Public Holiday is an item under the Exclusive Legislative List which no State Assembly has the requisite power to make any legislation on; not only so, the introductory part of the Act expressly states that existing state laws on the item as at the time the Act was enacted has been repealed. This is the position of the Law and there is no other position that is more legal than this.
However, the ratio of my piece is not anchored on the legality of the state law since the same has long being in abeyance by the operation of the existing Act earlier cited. My position is: can the state appoint any day a public holiday?
First, let me make it clear that I have never kept the thanksgiving day ever since it had been appointed as such, only that I may not make appearance before any of the state courts as a minister in the temple of justice, and perchance, I may go to any solemn gathering I am aware of, if the day falls on the same day the gathering I have been attending does occur.
So there is no element of sentiment attached whatsoever. Whether the act amounts somewhat to somekind of adoption of a state religion is another issue of legality entirely, but based on state practice Gov. Dickson does not necessary need a state law to set aside a day as a public holiday.
The Act that has been heavily quoted provides that though state laws on Public Holidays have been repealed, the state Governor can appoint a special day to be kept as a public holiday. All the Governor needs to do is issue a Public Notice.
This literary means that, by law, the State government is also empowered to appoint a special day as public holiday. What amounts to a special day is another issue for discourse which I won’t delve into.
Therefore in my opinion, what the Governor should do in the circumstance is to make a Public Notice formally appointing the said day as a special day for a public holiday, and transmit the necessary document to INEC citing previous state practice as reason for INEC to see reason and shift ground. In so far as the Governor does not cite the repealed state law, he will definitely be on track.
Nonetheless, could it be reasonably argued that the state law, though, not a valid law suffices as a PUBLIC NOTICE to that effect, since the report is to the effect that the said day is statutorily recognized? I would make bold to hold such an argument.
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