OUR VIEW ON THE LEGALITY IN ITS FORM AND CONTENT OF THE EKITI STATE WHITE PAPER: CAN THE EKITI STATE GOVERNMENT BAR A PERSON FROM HOLDING POLITICAL OFFICES:
INTRODUCTION

I have followed the events from the institution of the Justice Silas Oyewole [Rtd]-led Judicial Commission of Inquiry which was set up by the Ekiti State Government to investigate the financial improprieties of the Dr Fayemi-led administration in Ekiti State. Consequently it was not a surprise when the State Government through the Commissioner for Information, Youth and Sport released a White Paper barring the erstwhile governor and his commissioner for finance from holding public office for 10 years. I believe it is necessary to examine the action of the Ekiti State Government viz-a-viz its effect from a legal perspective.

THE MISUSE OF WHITE PAPER:

The use of White Paper, like most of our legal processes is an innovation borrowed from the more entrenched English governmental process. A White Paper is a command paper used by government to communicate information, recommendations or decisions that should be drawn to the attention of the parliament for the formulation of laws. A White Paper is more of a government’s view on a particular issue and its proposal or recommendation on how a law or policy should be executed to suit its implementation. An example is the ‘ Great Repeal Bill’ White Paper. This is a White Paper which was presented to the British Parliament in March 2017 by the Secretary of State to explain the exit strategy of Britain from the European Union. The White paper in this instance was to provide clarity to the Ministers of Parliament and the Public as a whole as to how the British Government plans to withdraw from the European Union. Compared to a bill, a White Paper is a lengthier document because it explains in detail, what the particular issue is about, stages leading up to the decision reached by the Government, how the particular issue should be dealt with and in some cases, proposals/policies on legislations?

Nigeria is also not new to the concept albeit different, the white paper is an instrument used by the executive arm to communicate government policies, decisions from recommendations and reports of a Committee of Inquiry, to the public. A good example is the White Paper on the Commission of Inquiry into the Alienation of Federal Government Landed Properties. The presidency had set up a Presidential Implementation Committee (PIC) under the Federal Ministry of Lands, Housing and Urban Development [now the Federal Ministry of Power, Works and Housing] without recourse to the legislature or legislation.

It is important to note that White Papers do not have any legal weight and do not become law by themselves but are a foundation upon which laws are drafted, deliberated and passed. Consequent upon this, the PIC for instance, cannot be sued in that name. They can only be sued through the Federal Government because they are a product of a White Paper.

THE EKITI STATE GOVERNMENT WHITE PAPER: LEGAL OR NOT-

The White Paper released on the 15th day of January 2018 by the Ekiti State Government made a pronouncement barring Dr. Kayode Fayemi and Mr. Dipo Kolawole [the Respondents] from holding any office whether as validly elected office holders or as a political appointees within the state. That pronouncement in itself goes against the Constitution of the Federal Republic of Nigeria 1999 [as amended] and the doctrine of separation of powers, if ever any judicial institution had the power to make such pronouncement.

It is without question that the Respondents like every Nigerian citizen can validly contest for any office in Ekiti or as it relates to the state once he can satisfy that: (1) He is a Nigerian Citizen (2) He has attained the age of 30 years (3) He has a minimum of the Senior Secondary Certificate or equivalent; and (4) He is a member and is sponsored by a political party.

Similarly the constitution state instances where a person may be disqualified to hold specific offices as it relates to a state under sections 66 [National Assembly Member], 107 [House of Assembly Member] and 182 [Governor]. Interestingly, each of these sections provides that a person is indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel or a Tribunal set up under a Tribunal of Inquiry Act or Law as the case may be, such a person cannot contest or hold office. The said White Paper, which is a product of a Judicial Commission of inquiry, issued by the Ekiti State Government, indicted the Respondents for the mismanagement of state funds from 2010 to 2014. The paper was not reported to have used the words, ‘Embezzlement and/or Fraud. Also, the White Paper then proceeded to penalize both respondents to a 10-year hiatus from holding political office within and outside the state.

Yes, the Ekiti State Government has the power to set up a Commission of Inquiry to look into any anomaly it sees fit as provided in the constitution and Section 2(1) of the Commission of Inquiry Law Cap C10 of Ekiti State. It should be noted that the section mentioned above is backed by the decision of High Court of Ekiti State. However the Ekiti State Government does not have the power to bar the Respondents from contesting or holding any public office against the direct provisions of the constitution. It is also quite unclear whether the State found the Respondents culpable for embezzlement and/or fraud regarding the state fund in question. Nevertheless, the place for issuing penalties for alleged criminal activities and the nature of the penalties to be issued are not within the purview of the executive through a White Paper. Rather it is the constitutionally provided power of the Judiciary of that State to do same.

It is my view that the penalty and its nature therefrom offends the constitution and the doctrine of separation of powers.

CAN THE EKITI STATE GOVERNMENT ENFORCE THE WHITE PAPER 

As stated earlier, a White Paper does not carry any legal weight in law. They are tools for communicating government information and policies to the legislature and to the public. It is important to state that the same White Paper declared that the government rejected the recommendation of the Commission on the mismanaged N2.75 billion allocated for a project (I am guessing criminal prosecution) but instead directed the Ministry of Justice to commence recovery of funds from Respondents thus making any action, civil at best [debt recovery proceedings]. This in itself has also taken the matter from the realm of criminal indictment. What then is the correlation between the 10 year bar for alleged financial mismanagement and civil recovery of funds from Respondents. The action of the Ekiti State Government to usurp of the role of the judiciary in penalizing the Respondents has created a quandary for the propriety of the Judiciary in such a process. The Court still remains the final destination to decide the legality of the White Paper to bar the Respondents and to pronounce on whether they can be disqualified under section 182(1)(i) of the Constitution viz-a-viz the reasoning of the Ekiti State Government.

I recommend that the Respondents direct the matter to Court to restore the sanctity of separation of powers. Delaying this matter till the elections can be costly for both the electorate and the elected.

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