Politics Aside: Why the Council of States is Riding on Unconstitutionality

Let me enter the debate. Several lawyers and political commentators maintain the Council of States (CoS) is competent to impeach or move a vote of no confidence against a state governor. I disagree. Here is why. Nothing in the provisions of Articles 47,48, 49 and 59 support the vote of no confidence. In fact, they all invalidate the motion.

The first three articles talk about the decentralized system of governance. Article 47 outlines a three-level of government and delimits the domain of authority to be exercised. These levels of government are the national, state and local governments. The CoS belongs to the national level.

Article 48 on the devolution of powers outlines the principles which should guide the exercise of powers by the different levels of government. Relevant provisions to the issue at hand are the provisions of Article 48 especially sub-article 2. It provides that the national government should “respect the powers devolved to the states and local governments.” A textual interpretation of this will show that a power that is devolved to the state, like impeachment which is reserved to the state legislative assembly, should not be interfered with by another legislative body at a different level of government. Article 49 actually guards against this usurpation of devolved powers.

Article 49, on the inter-governmental linkages, provides principles which should guide the “administration of the decentralized system of governance.” In their relationships, the levels of the governments are required to “respect each other’s powers and competence”(Art.49(b)(I)), and “not to encroach on or assume powers or functions conferred upon another level…(Art.49(c)(I)). It even requires different levels of governments “to respect the status and institutions of other levels of government” (Art.49(c)(v)).

The provisions of Art. 49 are so detailed that they rule out any expansive interpretation of the constitution so as to confer any power of impeachment on CoS. CoS is constitutionally required to respect powers vested in the Unity State Legislative Assembly. And should that legislative body be unable or unwilling to hold a state governor accountable for gross violation of the constitution, Art. 101(r) empowers the president to “remove a state governor and/or dissolve a state legislative assembly in the event of a crisis in the state that threatens national security and territorial integrity.” Thus, CoS is not only on the wrong vis-a-vis state legislative assembly but also interfering with the powers granted to the president.

Article 59 on the competences of the CoS merely requires the CoS to “request statements from governors and national ministers concerned regarding effective implementation of the decentralized system and devolution of powers and any other issues related to the states” (Art.59(e).

There are two important things here. One, the constitution expressly grants only the power to “request statements from governors… .” Two, if the framers of the constitution intended to include the power to impeach a state governor or national minister by the CoS, nothing would have prevented them from doing so instead of hiding behind the residual functions of Art.59(h). For example, article 57(I) grants the national assembly the power to “cast a vote of no confidence against any minister.” And since the CoS has the power to request statements from national ministers, do you think CoS can move a motion of no confidence against the minister? If not, what grants the CoS the power to impeach a state governor whose impeachment is a power vested in state legislative assembly? And if yes, to take the thesis of my interlocutors to its logical end, would it not obviously violate Art. 49(b)(i)that requires government organs to “respect each other’s powers and competencies.”

In conclusion, then, as I stated earlier that CoS is riding on unconstitutionality, defenders of the vote of no confidence against Hon. Joseph Nguen should come forward and convincingly demonstrate the constitutionality of the alleged impeachment.