OATH OF OFFICE OF GOVERNOR AND DEPUTY GOVERNOR OF A STATE AND THE DOCTRINE OF NECESSITY- Prof. Nnamdi Obiaraeri

INTRODUCTION
In this short presentation, we will examine the narrow but important issue of administration of Oath of Office on the Governor and Deputy Governor of a state as provided for under our grundnorm, the 1999 Constitution of Nigeria as amended. This exercise has become important because, only recently, the polity became heated with the fear of anxiety of a potential constitutional logjam in Rivers State of Nigeria because the judiciary as an arm of government in that state had been totally paralysed to the extent that there is no judicial officer constitutionally qualified to administer the oath of office on the newly elected Governor and Deputy Governor of the state on 29 May 2015. The regnant question is whether this type of scenario in Rivers State is an utterly hopeless situation or whether there is a glimmer of hope in our constitution as the fons et origo to navigate our polity out of the quandary? We intend therefore to examine the general constitutional roadmap for administering oath of office on a Governor or Deputy of Governor of a State and ultimately conclude firstly, that the oath is a special type of oath to be administered be select judicial officers and secondly, that based on the doctrine of necessity, that our laws are adequate for the occasion that has arisen in Rivers State. Therefore, there is no possibility of breakdown of law, order and governance in that state and by extension any other state in the federation that will have similar challenge in the future if we conscientiously follow and apply the necessary constitutional caution, safeguards and restraints on the subject matter.

ESTABLISHMENT OF THE OFFICES OF GOVERNOR AND DEPUTY GOVERNOR
It is important to state as a threshold issue that the public offices of Governor and Deputy Governor of a State are constitutionally created and recognized as suis generis. This simply means that though they overlap, they are not one and the same office. Section 176(1) of the 1999 Constitution as provides that “There shall be for each State of the Federation a Governor” while section 176(2) of the selfsame constitution amplifies that the “Governor of a State shall be the Chief Executive of that State”. On the other hand, section 186 of the same Constitution creates the office of the Deputy Governor when it provided in no unmistakable terms that “There shall be for each State of the Federation a Deputy Governor” although there are no clear cut or specific constitutional function or functions assigned to the Deputy Governor which has made some people to ignorantly refer to the Deputy Governor as a “spare tyre”.

OATH OF OFFICE OF GOVERNOR AND OR DEPUTY GOVERNOR
It is a condition precedent that prior to assumption of office, any person elected to the office of Governor or Deputy Governor of a State must take two cardinal steps. One is the declaration of his assets and liabilities before the Code of Conduct Bureau and second is to take two types of Oaths as prescribed under the constitution. The first oath is the Oath of Allegiance and the second is the Oath of Office. For the avoidance of doubt, section 185(1) of the 1999 Constitution as amended provides that “A person elected to the office of the Governor of a State shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed in the Constitution and has subsequently taken and subscribed the Oath of Allegiance and Oath of Office prescribed in the Seventh Schedule to the Constitution”. The textual content of the Oath of Allegiance is simply but most importantly that the public officer solemnly swears or affirms that he will be faithful and bear true allegiance to the Federal Republic of Nigeria and that he will preserve, protect and defend the Constitution of the Federal Republic of Nigeria. There is the usual closing sentence “So help me God”. Under section 187(2) of the selfsame constitution this provision applies to the Deputy Governor with the same legal force.

On the other hand, the Oaths of Office of the Governor and Deputy Governor appear substantially similar but they are not the same in every material particular. The wording of the Oath of Office of the Vice-President, Deputy Governor, Minister, Commissioner and Special Adviser are the same in the seventh schedule while that of the Governor of a State stands alone. Apart from that, there is the more significant difference that in the Oath of the Office of the Governor, the Governor swears to an additional duty that “I will exercise the authority vested in me as Governor so as not to impede or prejudice the authority lawfully vested in the President of the Federal Republic of Nigeria and so as not to endanger the continuance of Federal Government in Nigeria”. This is designed to reinforce the provisions of section 2(1) of the Constitution that Nigeria is one indivisible and indissoluble Sovereign State. Breach of Oath of Office is a serious issue and can lead to loss of office.

WHO ADMINISTERS THE OATHS?
Section 185(2) of the 1999 Constitution as amended is vivid in enacting that “The Oath of Allegiance and the Oath of Office shall be administered by the Chief Judge of the State or Grand Khadi of the Sharia Court of Appeal of the State, if any or President of the Customary Court of Appeal of the State, if any, or the person for the time being respectively appointed to exercise the functions of any of those offices in any State”. We must underscore that by the express provision of section 187(2) of the Constitution, any reference to the Governor is reference to the Deputy Governor and the provisions for Oath of Office of a Governor in section 185(2) shall apply mutatis mutandis to the Deputy Governor. Therefore, under the first limb of the above provision, where the judiciary as an arm of government in any given state of the federation is alive and working and not comatose, only the Chief Judge of the State or Grand Khadi of the Sharia Court of Appeal of the State, if any or President of the Customary Court of Appeal of the State, if any shall administer the oath on the Governor or Deputy Governor and not just any judicial officer or any other person authorized to administer oath under the Oath of Act 2004. By this constitutional preachment, it is indubitable that this is a special oath reserved for heads of courts like Chief Judge, Grand Khadi or President of the Customary Court of Appeal of the State.

DOCTRINE OF NECESSITY IN ADMINISTRATION OF OATH
The law is and remains a veritable instrument of social engineering. Creative lawyering coupled with necessary intuitive intellectual rigour serves to stem legal logjam and take care of eventualities in the polity. The invocation of the constitutional doctrine of necessity is usually applied as a last resort or safety valve to prevent foisting of aberratious hopelessness and anarchy on the polity. Specifically, the provision in the second limb of section 185(2) of the 1999 Constitution as amended is in issue (“or the person for the time being respectively appointed to exercise the functions of any of those offices in any State”). Thus, where there is no Chief Judge, Grand Khadi or President of the Customary Court of Appeal in a State of the Federation, the business of governance will not grind to a halt or the polity will not recede to lawlessness. Thus, by reason of doctrine of necessity the oath of office can be administered by the person for the time being respectively appointed to exercise the functions of any of the offices of Chief Judge, Grand Khadi or President of the Customary Court of Appeal in any of the other 35 States of the Federation. It is crystal clear on the class or status or rank of judicial officers contemplated as fit and proper to administer the sacrament of oath of office in situations of dire need – these are the Chief Judge (CJ), Grand Khadi (GK) or President of the Customary Court of Appeal (PCCA) of any other state not just any Judge or Khadi can administer the oath of office under the doctrine of necessity. There must be clear evidence that the judiciary in that State is in limbo of comatose and that none of special judicial officers specifically empowered to administer the Oath, namely Chief Judge, Grand Khadi or President of the Customary Court of Appeal is available.

SUMMARY
This short presentation has cleared any grey areas with respect to the appropriate judicial officers who can swear in a Governor or Deputy Governor of a State. Therefore, no other person or authority is allowed to usurp that function. Following recent developments in the polity, we make bold to say that the Attorney-General of the Federation cannot issue valid, legal and constitutional directives to nay judicial officer under section 185(2) of the selfsame Constitution. Going by the doctrine of separation of powers and extrapolating the defined and jealous boundaries of separate but interrelated principles of that ancient doctrine, we adumbrate that the Attorney-General of the Federation who belongs to the executive branch has no powers in himself to direct or appoint any judicial officer to act under section 185(2) of the Constitution. Any of the qualified judicial officers listed in Section 185(2) can act under the doctrine of necessity and administer the oath of office on a Governor or Deputy Governor duly elected if invited to so do by the affected Governor-elect or Deputy Governor-elect provided there is a constitutional hiatus in that state in the manner envisaged in section 185 of the constitution aforesaid – being that there is no Chief Judge, Grand Khadi or President of the Customary Court of Appeal as is the case in Rivers State. The Chief Justice of Nigeria as the head of all courts in Nigeria may in appropriate cases, and upon good cause being shown, duly direct or request a Chief Judge, Grand Khadi or President of the Customary Court of Appeal of any State to act under the doctrine of necessity.

We further contend that any Chief Judge, Grand Khadi or President of the Customary Court of Appeal who acts under the second limb of section 185(2) of our grundnorm being the constitution, does so because the constitution expressly empowers him to act in the event of necessity and not because he was authorized or appointed by any external authority or person. The constitution of the country clearly envisaged the unfortunate situation we presently have in Rivers State and made adequate provisions for it. There is no cause for alarm although there is cause for caution by all stakeholders in order not to torpedo the constitution and our democracy.