By Elder Wilcox Abereton, SAN

Governor Sim Fubara’s promise to implement the dubious Presidential peace pact is a breach of the Constitution and so constitutes an impeachable offence. It is also undemocratic and against the spirit of the Constitution of the Federal Republic of Nigeria 1999 (as altered), which the governor swore to uphold and defend.

When in October 2023, Martins Amaewhule and his throng of 24 Law makers of the Rivers State House of Assembly purported to serve a notice of impeachment on Governor Sim Fubara, even they themselves knew that the notice was empty like a proverb in the mouth of a fool or a lame man’s legs that hang limp: Prov. 26 v 7. The legislators did not state what offence(s) the Governor committed: whether gross or even of a dross. Hence the governor’s unanswered question: “what is my offence?”

Martins Amaewhule and his 24 co-travelers were elected members of the Rivers State House of Assembly on March 11, 2023 under the platform of Peoples Democratic Party (PDP). Without any rhythm or reason, they defected to the All Progressives Congress (APC). There was/is no division in the PDP or a merger of PDP with any other party. So, that is fair enough. Equally fair is the constitutional implication of their action as codified in Section 109(1)(g) of the Constitution.

That Section provides as follows:

109(1) a member of the House of Assembly shall vacate his seat if

(g) being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected:

Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored”.

In law, when interpreting statutes, the word SHALL is often interpreted to mean MUST. In other words, the 25 members who defected to APC must vacate their seats in the House.

Thankfully in keeping with the provision of sub-section (2) of Section 109, the Speaker of the House, Rt. Hon. Ehie Ogerenye Edison, PhD, DSSRS declared their seats vacant. That should end the matter or to put it in Latinism: cadit quaestio! It must be so because in Abegunde v. O.S.H.A [2015] 8 NWLR (pt. 1461) 314, the Supreme Court of Nigeria, speaking through Mohammed CJN at p. 354 (I shall take the liberty to paraphrase what his lordship said please and it is this):

“. . . those 25 members of the Rivers State House of Assembly who defected to APC when there was no division in PDP have automatically lost their seats in the House and must vacate their seats in that House because being persons whose election to the House was sponsored by the PDP became members of APC before the expiration of the period for which they were elected”.

According to the apex court, the idea is to discourage the fraudulent and malevolent practice of cross-carpeting so that political public morality of our country may be preserved. Thus the framers of the 1999 Constitution made punishable the defection of an elected member from the political party that sponsored him to another party before the expiration of the period for which the House was elected by declaring his seat vacant – see also A/G, Federation v. Abubakar [2007] 10 NWLR (pt. 1041) 1 @ 178-179.

The result is that no person, principality or power can waive, compromise or sign away this mandatory constitutional provision on the rickety altar of “worst peace is better than best war” as proclaimed by HE Sir Siminalayi Joseph Fubara in his Christmas day broadcast.

Indeed, that nauseous breakfast in the mould of a broadcast served Rivers people on Christmas day constitutes a gross misconduct under the Constitution. With profound respect, His Excellency, Governor Sim Fubara has no powers to recall 25 law makers whose seats have been declared vacant by the House pursuant to the Constitution.

Additionally, the Governor has no powers to recall Commissioners who resigned their appointments. The governor also lacks the powers to re-present an appropriation bill since assented into law pursuant to the Constitution. Therefore, any plot or scheme no matter how august and audacious or even pacific to return these ones will be an affront to the Constitution and will be undermining the authority of even the State as an independent and autonomous unit in a federation. Nigeria operates a federal system of government in which the component states do not play the role of errand boys to the federal government; per Niki Tobi JSC Att-Gen., Abia State v. Att-Gen., Federation (2006) All FWLR (pt. 338) 604 @ pp. 647B.

By Section 188(1) of the Constitution, the Governor of a State may be removed from office in accordance with the provisions of the Section,

(b) if he “is guilty of gross misconduct . . .”

And by Section 188(11), “gross misconduct” means a grave violation or breach of the provision of (the) Constitution . . .”

No conduct or misconduct can be more grave than the acceptance by HE Sim Fubara to carry out the contents of the odious document entitled “Directives for the resolution of peace in Rivers State”. It is most grave that even when the document is clearly undemocratic and its contents comprehensively unconstitutional, the governor insists on sticking to them. The governor’s decision to implement the odious Presidential Peace pact, according to the Preacher (Ecclesiastes 10:1), is a little folly that has outweighed wisdom and honour: like dead flies that cause the ointment of an apothecary to send forth a stinking savour. It should ideally serve as his own impeachment notice.

The nonsense happening in Rivers State has now become so arrant and unless checkmated now, it will unwittingly but steadily be elevated to a creed or winnowed into a deeper nonsense. Like Gertrude Stein mused: “once an angry man dragged his father along the ground through his own orchard. “Stop” cried the groaning old man at last. “Stop. I did not drag my father beyond this tree”. In one sentence, Rivers State has been dragged to the ground before, but never beyond what we are witnessing today.

The 25 former members must endure their fate and fall as Satan did after he lost paradise. It is part of the Niagama Falls Syndrome which according to Anthony Robbins means that these 25 former members of the House made decisions without properly evaluating the consequences pursuant to Section 109(1)(g) & (2) of the Constitution. They neither gave heed nor a calm and prudent aforethought to the consequences of their odious political twerk because of their impetuous desire to temporarily flourish and enjoy interstitial applause and praise.

It is a gross misconduct on the part of Governor Sim Fubara to insist to implement the odious Presidential peace pact entered into on December 18, 2023 to recognize these former law makers and pay them salaries from the lean resources of the State. The governor is making light the support and sympathy of the Rivers people in order to appease the deities in Abuja. That is a huge error; a gross misconduct and so an impeachable offence. But it can be stopped now otherwise as Shakespeare cautioned:

‘Twill be recorded for a precedent

and many an error by the same example

Will wish into the State.