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Tuesday, September 29, 2020

Anambra State Governor Suspends ‘Errant’ Traditional Rulers: Matters Arising

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Anambra State Governor Suspends ‘Errant’ Traditional Rulers: Matters Arising

The Anambra State governor appears to possess the powers to punish the ‘miscreant’ monarchs, but he may have neglected...

The Anambra State governor appears to possess the powers to punish the ‘miscreant’ monarchs, but he may have neglected to follow due process in exercising his powers.

By Chudi Okoye

Anambra State is yet again in the news, but this time for all the wrong reasons. At a time that various governments and supporting institutions are charging at the challenge of Covid-19, a pantomime is playing out in Anambra. The state governor, Chief Willie Obiano, is locked in an unseemly battle of wits with the flamboyant and rebarbative oil magnate, Prince Arthur Eze, and a rabble of renegade traditional rulers who recently went on a self-seeking excursion to Abuja, a sortie seemingly orchestrated by the financier who fancies himself an anointer of prelates and appointer of potentates in Anambra State.

The traditional rulers had sallied forth to Abuja, in all their ostentatious glory, apparently assured of an audience with President Muhammadu Buhari, at whose majestic court they reportedly planned to present their grouse against the governor of Anambra State. The mission came unstuck: despite initial protocol clearance, Buhari in the end refused to grant an audience to the gaggle. (A face-saving quickie was later arranged with Buhari’s Chief of Staff, Prof Ibrahim Gambari). Perhaps playing a deft political game in behalf of an All Progressives Congress (APC) party looking for an inroad into Anambra State, the president reportedly advised Prince Arthur Eze to desist from his churlish confrontations with Governor Willie Obiano and to settle matters with him.

Perhaps emboldened by Abuja’s royal rebuff of Arthur Eze’s loyal gang, Willie Obiano swung into action. In just a matter of days after the Abuja escapade, the governor secured the support of the Anambra State Traditional Rulers Council – or at least that of its august leadership – to suspend the twelve importunate traditional rulers who embarked on the unfortunate mission to Abuja. A statement issued on 12 Aug. 2020 and signed by Mr. Greg Obi, the Anambra State Commissioner for Local Government, Chieftaincy and Community Affairs, announced that the governor had suspended the certificates of recognition issued by the state government to the twelve errant rulers. The letter indicated that the suspension would subsist for one year, but it noted that the sanction could be “renewed” or even “upgraded” (presumably to an outright revocation of recognition) depending on the government’s review of the subsequent conduct of the traditional rulers.

If there is any worthy point of intervention in this vaudevillian comedy of errors going on in Anambra State, it relates to the question of the legality of the suspension order imposed by the state governor on the miscreant monarchs.

More broadly, there is also a question concerning the impairment of representation in the Traditional Rulers Council for the affected communities. If the Council is a forum for consequential deliberation on community affairs, why should a community suffer for the purported errancy of its monarch?

I had raised this precise point with a highly-placed Anambra State government official when I received a copy of the suspension order sent to the media. I wondered if the suspension order was sustainable, whether the government could fend off pressure from the affected communities complaining of disenfranchisement for the errors of their self-dealing rulers. The immediate retort from the government official was that some communities have not had a monarch for a long time, and that they have somehow managed to carry on. As such, he was implying, the affected communities could weather the withering of their traditional rulers for a period.

I considered this a valid response, but then to that extent it raises a whole different question about the utility of these monarchies. If Igwes can be dismissed or suspended without implication for their communities, then what is the point of them in the first place? Are they really adding any value?

That is a broader question to be taken up some other time. The narrower issue here is the legal one.

There are some legal experts who are already raising an objection to the governor’s suspension of the monarchs, and they are advising the implicated Igwes to test the matter in a court of law. One of such canvassers, H. E. Okolo (Esq), an Abuja-based barrister, questioned the legality of the suspension order on two grounds:

(1) That it is the community that selects and confers authority on traditional rulers and not the state government; therefore the government can neither suspend nor remove the monarchs.

(2) That the suspension order, in seeking to sanction the traditional rulers purportedly for undertaking an unauthorized mission to Abuja, infringed on their right to freedom of movement as guaranteed by Article 13 of the Universal Declaration of Human Rights and also by Section 41 (1) of the Nigerian Constitution (1999).

I find myself puzzled by this line of attack. I am puzzled that the barrister in question would anchor his challenge on universal grundnorm but not refer to the relevant local statute upon which the suspension order was based.

The government’s statement made clear that the suspension order was based on “the powers conferred on His Excellency the Executive Governor of Anambra State under Section 10(b) of the Anambra State Traditional Rulers Law 1981” (sic). If the suspension order is to be challenged, one would think, it should be done within the logical constraints of the local law.

There is no need to appeal to universal principles here since there is sufficient ground, within the ambit of the local law, to interrogate the suspension gambit.

For one thing, there is a technical point about dates. The extant version of the Anambra State Traditional Rulers Law came into force on 10 Sept. 2007. Although the new law did not secure the assent of the sitting governor at the time, Peter Obi, his apparent dissent was overridden by a superordinate majority vote in the House. There had been a twist in the passing of the 2007 law to do with a clerical error at Section 55 of the new law which was intended to repeal the preceding 1981 law: instead of specifying the year “1981” the section mistakenly instantiated a non-existent “1991” law. For reason of this error, some have argued that in fact the 1981 law was never repealed and is still in force. However, this argument is unsustainable. Merely going by the legal principle of desuetude which sunsets an existing law due to lack of use, it can be argued that the 1981 law has become obsolete given the existence of a properly enacted replacement law. The Anambra State government, in referencing the 1981 law in its suspension letter, had either forgotten that the traditional ruler law was re-enacted in 2007 or it failed to acknowledge the doctrine of desuetude. If then, by this argument, the 1981 version of the law has become void, there might arise a question as to the validity of the suspension order since it invoked a legal instrument that has since been superseded.

The suspension order should have been based on the 2007 version of the Traditional Rulers Law. However, had this been the case, it would have raised a serious challenge against the suspension order, one relating to the question of due process. Section 10 of the law, titled “Suspension and withdrawal of recognition”, states as follows:

Notwithstanding anything contained in this Law, the Governor shall, with the approval of 2/3rd majority of the House of Assembly members, withdraw the recognition of a recognized traditional ruler if the Governor is satisfied that such suspension or withdrawal is:

– necessary having regard to the code of conduct required by the customary law existing between the traditional ruler and the town or community which he represents; or         

– necessary in the interest of peace, order and good government.

A formal interpretation of this section confirms that the governor has the basic authority to initiate a disciplinary action against an errant traditional ruler. However, the law is clear that the governor cannot take a unilateral action in this regard but must secure the approval of a 2/3rd majority of members of the state House of Assembly. There is no indication, at least going by the language of the suspension letter, that the state House of Assembly was consulted or even informed in this matter, as required by law. This is probably a litigable oversight.

The Traditional Rulers Law, at Section 16 titled “Allegation of misconduct”, also lays out the process to follow in such circumstances:

  • Notwithstanding Section 10 of this Law, whenever there are allegations of grave misconduct against a recognized traditional ruler the Commissioner [of Local Government, Chieftaincy and Community Affairs] shall cause administrative enquiry to be held in respect of such allegations.                                                                           
  • Where the Commissioner, after such enquiry, is satisfied that such allegations are proved against the recognized traditional ruler or that the recognized traditional ruler has ceased to enjoy the popular support of his town or community, the Commissioner shall advise the Governor to withdraw, with the approval of the House, the recognition of such recognized traditional ruler.

Again, it is not clear from the suspension letter that the governor followed this process, either in constituting an administrative enquiry or in taking the pulse of the affected communities as to the popularity of their monarchs.

This last point, relating to the opinion of the impacted communities, raises a more fundamental question about the action of the government. Ever since Igbo communities began to create for themselves secular kings to rule over them, forsaking their republican heritage at it, there has been a tension as to the source of legitimacy for the newfangled monarchs: Do they derive their legitimacy from the communities which choose them, or from the government which certifies and remunerates them?

In an earlier Awka Times treatment of this question with regard to Awka, the capital of Anambra State which is currently embroiled in a monarchic intrigue, we argued that the Awka Traditional Ruler constitution invokes a Weberian duality of legitimacy in which ‘traditional’ and ‘charismatic’ legitimacy is conferred through community selection of an Awka monarch (Eze Uzu), while ‘legal’ legitimacy is conferred through the government’s certification of a monarch chosen by the community. In that Awka Times piece, we argued that none of these strands of legitimacy is valid without the other. As we put it:

There is of course an unequivocal and irrefutable case to be made that the authority of an Eze Uzu is established upon formal recognition and certification by the Anambra State Governor. Going by the provisions of the Awka Traditional Ruler’s Constitution, the Governor would appear to be the ultimate grantor of rulership authority. But the matter cannot be as simple as that. For, while the Governor has ultimate certifying authority, the constitution and its founding laws make it clear that the Governor will be required to endorse the community’s choice, in so far as the proper selection procedure is followed and the candidate meets the criteria specified in state law. To an extent, the Governor’s constitutive power might be said to be fiduciary, in that he is constrained to endorse the candidate chosen through the institutional processes of selection involving the whole community. The Governor cannot wantonly subvert the will of the people if the community speaks with one voice. However, the power of the Governor becomes more autonomous when there is ambiguity in the community, when there is contestation for the Stool and a crisis of legitimacy ensues.

If there is no ‘dominant gene’ as it were between community-imbued legitimacy and legal authority from government certification, it follows that Governor Obiano had the power to act but needed to have done so after consultation with the community. Again, there is no indication in the suspension letter that such a consultation was undertaken.

The contours of this case are now clear from the foregoing discussion. It seems superfluous to refer, as some legal experts have done, to the Universal Declaration of Human Rights or even the Nigerian Constitution in this case. The local statute is the relevant law for the matter at hand.

On that score, Governor Willie Obiano appears to be on solid legal ground to undertake disciplinary action against an errant traditional ruler. His suspension order against the twelve royal miscreants is therefore, on the face of it, intra vires.

That said, the Anambra State Traditional Rulers Law makes it clear that the governor must act with the consent of the House of Assembly, following due consultation with the affected communities. Since it is not clear the governor followed due process in exercising his statutory powers, he has opened his action up to credible legal challenge, if the impacted monarchs can muster the courage and the resources for such a challenge.

The oil magnate and his minions, if still in a menacing mood, could of course finance such a challenge. The suspension order could be challenged for referencing the voided 1981 statute or if the extant 2007 law is invoked, on the grounds that due was not followed. But given the reported injunction from Abuja for local truce, the renegades might not mount a challenge. This means that the suspension order could in fact run its course – due process be damned – or it could be commuted at some felicitous point when the governor’s political interest is served by such clemency.

 This article has been expanded from the original version to address a legal argument relating to the status of the 1981 version of the Traditional Ruler Law.

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