Newsfront Online …Telling the Public as it is
By Saviour Ekpe
The issue regarding the Akwa Ibom State University, the Vice-Chancellor of the revered citadel of learning, Prof. Eno Ibanga and the Executive Governor of our dear Akwa Ibom, Mr. Udom Gabriel Emmanuel has received media and legal hype the past two days. It is true that at the expiration of his tenure, the Vice-Chancellor, Prof. Eno Ibanga had taken away his personal effects from the University until the Governor directed and reappointed him in an acting capacity. In this matter, the governor, according to analysts is not wrong owing to many factors and his knowledge of the dynamics of the university arrangement, especially the Akwa Ibom State University.
In his thoughtful reasoning “from the peaceful town of Abak” a writer by name, Nsikak Akai, Esq. on the topic, “The Appointment of Vice-Chancellor, Akwa Ibom State University: An Issue of Law” wrote, The Akwa Ibom State University is a creation of statute. It takes it life from the Law duly passed by the Akwa Ibom State House of Assembly in 2009. Having been duly passed, the said law received an executive blessing when the Executive Governor of the state assented to it on the 29th day of June 2009 upon transmission by the clerk of the statehouse. To that end, therefore, the university, its officers & organs are bound by the provisions of the said law. Suffice it to say, that the powers of the Visitor {Executive Governor of the state), is also as provided for and/or regulated by the said law.
Since the establishment of the said university in 2009, it has witnessed so far, two Vice-Chancellors who have contributed in no small measure, to the growth & advancement of the institution. On the 23rd day of April 2015, Prof. Eno James Ibanga, fnip, took over office from Prof. S. W. Peters, FAS, as the second helmsman of the institution. It must be noted that Prof. Eno Ibanga whose tenure was confirmed in April of 2015, was serving in an ACTING CAPACITY. Given the date on which his appointment was confirmed, by law, the life & tenure of office of Prof. Eno Ibanga expired on 22nd April 2020.
Acting very swiftly {in order not to create a vacuum} albeit erroneously, the VISITOR appointed the same man as Vice-Chancellor in another ACTING CAPACITY “subsisting till a post-covid19 normalcy return”. Now, several issues have arisen from this executive action. First, doesn’t the Visitor{Governor} wield such powers to appoint whosoever he pleases?
The answer to this issue is found in the enabling law. The First Schedule to the said law makes provision for the Principal Officers of the University. Section 4 {1} provides: “Subject to the provisions of this law, the Vice-Chancellor shall be appointed by the Governor after consultation with the University Council”.
Given the above, it can be safely and of course, hastily answered that the Governor reserves such powers subject, however, to having consulted the governing council. S. 4(3) provides as follows: “The Vice-Chancellor shall hold office for a SINGLE TERM OF FIVE YEARS FROM THE DATE OF HIS APPOINTMENT, AND SHALL NOT BE ELIGIBLE FOR RE-APPOINTMENT UNTIL AT LEAST FIVE YEARS HAVE ELAPSED SINCE HE LAST HELD OFFICE AS VICE-CHANCELLOR” (emphasis mine). The law is clear that words used in a statute or any enactment MUST be given their ordinary and plain meaning. It is also the law that the word SHALL when used in a statute connotes a command and does not by any means confer any discretion on anybody.
As could be seen in the above provision, whoever enjoys the Governor’s prerogative to hold office as Vice-Chancellor shall not exceed a single term of 5years. The law is also very clear that such an individual no matter the sterling qualities & performance exhibited in the first & only tenure in office in that capacity, is INELIGIBLE for another appointment(under any guise) into the same office unless & except as provided in the proviso to the said sub-section. That is to say, a period of 5 years must have passed!
With the greatest respect to His Excellency (The Visitor), the RE-APPOINTMENT of the previous holder of the same office on another acting capacity, was done in ERROR. A grave anathema in law. Moreover, it is not only ridiculous but completely ludicrous to state in the instrument re-appointing Prof Ibanga that the appointment is to subsist pending a post covid19 return to normalcy. This takes me to the next legal issue.
Secondly, I have carefully and very dispassionately read word for word, the law establishing AKSU. I have not found therein any provision where the draftsman foresaw a force Majeure. Meaning, it was not foreseen or contemplated that there could be any natural occurrence or disaster affecting the term of a Vice-Chancellor whose tenure has ran full cycle & as such liable for a Reappointment.
Assuming without in the very least conceding, that by virtue of the doctrine of necessity, could the governor not have acted in the manner he just did? The answer is quite simple. By Section 6(b) of the law aforecited, it provides: “The Deputy Vice-Chancellor shall: act in place of the Vice-Chancellors WHEN THE POST OF VICE-CHANCELLOR is Vacant or if the Vice-Chancellor is for any reason absent or unable to perform his functions as Vice-Chancellor”(emphasis supplied).
That provision read alongside with S. 4(3) {supra} leaves the Governor not in doubt as to the intention of the law. In my very respectful submission, the governor acted outside the scope of his powers. He simply swam against the tide. In any case, when will the post covid19 normalcy return? Maybe in the next 3 months or a year or another 5years. That means the government is simply leaving the matter at sea so as to allow its “beautiful bride” to continue enjoying the office of Vice-Chancellor when he is most ineligible to do so at this point.
Besides, I am aware (because it was in the news), that in this same season where the world is jointly fighting a war with a common enemy called COVID-19, another state-owned university, like ours, Kwara State University whose law is on all fours with the law establishing AKSU, recently changed its Vice-Chancellor. The Governor of Kwara State appointed Prof. Mustapha Mohammed-Akanbi as substantive Vice-Chancellor of the state university with effect from 1st April 2020.
The reason behind the action of the Akwa Ibom State Government in this regard is therefore not tenable and inexcusable. Just for emphasis, the Federal Government has also appointed new Vice-Chancellors for Federal Universities during this same period. I wish the Visitor had sought the advice of the relevant officers and members of his cabinet before committing this legal blunder. Would those persons have been bold enough to sincerely advise him given their comfortable positions on the dining table? That may be a discussion for another day. Just thinking aloud this morning”.
In his swift, annotated and well legal balance, Barr. Ikenna Emmaniekwe in his response wrote, “Barr Nsikak Akai as you know I am not from Akwa-Ibom state but I am a lawyer who loves law and it’s apt application on issues. Reading your post, I think there is a fundamental misapprehension of the law on your part. 1. You cannot fault the Governors appointment based on lack of consultation with the governing council because I don’t think you know for a conclusive fact that that was not or had not been done. 2. Section 4(3) speaks about the appointment of a “Vice-Chancellor”. I think you are wrong to apply that section to also cover the appointment of an “Acting Vice-Chancellor”. It is trite law that a holder of a substantive office and an occupier of the office in acting capacity are not one and the same. They wield and possess different powers and privileges. 3. If your reading of the law were correct then somebody who started as an Acting Vice-Chancellor cannot then be confirmed as a Vice-Chancellor until 5 years had elapsed after the date of his appointment as Acting Vice-Chancellor. So with respect, appointment as vice-chancellor and appointment as an acting vice-chancellor are not coterminous. They are distinctly separate! 4. Therefore, Prof. Ibanga has only been reappointed as an “Acting Vice-Chancellor” not a substantive Vice-Chancellor. Methinks that under section 4(3), he is only prevented from being appointed and confirmed again as the substantive Vice-Chancellor until after 5 years (that is after 2025). 5. Lastly, section 6(b) deals with a vacancy in the office of the Vice-Chancellor. It does not apply in this case because there was no vacancy. By the (re)appointment of Prof. Ibanga on April 22nd, that means that there was no vacancy and section 6, therefore, would and could not apply! If however there was no new appointment by the morning of April 23rd, that would amount to a vacancy for which the Deputy Vice-Chancellor would have had to assume powers in acting capacity pursuant to section 6. These are my humble and considered opinion, formed solely from the reading of your own post”.
