ORO POWER GRAB A PUBLIC DISGRACE
BY NEMA YALO
The power struggle in Northern Province offers a lesson to provincial governments nationwide. In that context the relevant laws discussed here should offer useful education. The political saga has kicked off with an alleged serious criminal offence – break and enter allegedly orchestrated by two MPs who are not members of the Oro Provincial Assembly. This writer is aware on credible information that the two MPs from Northern Province Delilah Gore and David Arore have, without any lawful excuse, failed to attend more than three scheduled Oro Provincial Assembly meetings notwithstanding that they each received due notice of those meetings.
Section 12 of the Organic Law on Provincial Governments and Local-level Governments states in part that if a member of Parliament is absent, without leave of the Provincial Assembly, during three consecutive meetings of the Assembly, unless the Assembly waives this provision upon satisfactory reasons being given, the member shall cease to be a member of the Provincial Assembly. To date the Oro Provincial Assembly in a duly scheduled meeting has not waived the operation of Section 12 to allow both MPs to remain as members of the Assembly. So by automatic operation of a Constitutional Law they are not members of the Oro Provincial Assembly.
How David Arore and Delilah Gore being national leaders ignore the voice of the Constitutional Law at the behest of the voice of their hunger for political power not only contradicts the generally accepted standards of leadership and governance but also defeats the very highest law of the land they each swore unto the Bible (therefore unto God) to uphold and obey on the very first instance they each stepped onto the floor of Parliament. Mr Arore reportedly said his actions are democratic. Under which Constitution and under what system of government? With respect, the alleged conduct is the behavior of persons who have lost moral compass and who by their own conduct are announcing to the nation that they are no longer fit to be accorded the title “Honourable”, a word that goes with an honourable profession - politics.
Section 15 of the Organic Law which provides for the procedures of Provincial Assemblies states that the Provincial Governor shall preside at all meetings of the Provincial Assembly at which he is present. And if the Provincial Governor is not present then it must be because, as Section 14 says, he is on leave of absence, or absent from the province, or is out of speedy and effective communication, or is otherwise unable to perform, or is not readily available to perform the duties of his office. In that case the Deputy Governor shall perform the functions and responsibilities of the Governor as Chairman of the Provincial Assembly. Governor Juffa was and is not on leave. He was and is readily available to perform the functions and responsibilities as the Chairman of the Oro Provincial Assembly. This week he has been out of the province, however he has not been out of speedy and effective communication so he would have been notified if an urgent or special provincial assembly meeting was necessary.
Unlike the government in the National Parliament Provincial Governors and Deputy Governors are not protected by law by way of grace period prohibiting motion of no confidence brought against them for a certain period from the date they take office. They are subject to a motion of no confidence provided for by Section 20 of the Organic Law. A Provincial Assembly may by a two-thirds absolute majority voting on a motion, dismiss the Provincial Governor or Deputy Provincial Governor. The motion must be expressed to be a motion to dismiss the Governor or the Deputy Governor. A notice of the motion must be presented to the Clerk of the Assembly (although the Clerk is not expressly mentioned by law) not less than one week’s notice. The notice must be signed by not less than one quarter of the total number of seats in the assembly. The grounds for dismissal of the Governor or the Deputy Governor are: (1) deliberately and persistently frustrating or failing to comply with the resolutions of the Provincial Assembly, or (2) deliberately and persistently disobeying applicable laws, including the Constitution, an Organic Law or any national legislation applying in the province, or (3) is negligent in exercising his powers or performing his functions, duties and responsibilities, or (4) does an act that is or is likely to bring into disrepute or call into question the integrity of his office. For the purposes of the first two grounds the conduct of the Governor or the Deputy must be deliberate and not a genuine mistake and it must be persistent, meaning not a one-off conduct but is continuous or obstinate. If Governor Juffa has by his conduct satisfied any of the grounds he is, like everyone, subject to the law. But the law must be invoked properly by those who are proper members of Oro Provincial Assembly as recognized by the Constitutional Law.
When there is a successful motion of no confidence against the Governor, the next in line to replace him is any one of the MPs from the province unless they are not themselves disqualified or are dismissed from the assembly. In the case of Northern Province, both MPs are disqualified by automatic operation of law. David Arore chose not to be sworn in as a member of Oro Provincial Assembly together with his colleagues on the first occasion following the conclusion of the general elections for Local-level Governments (LLGs) in Northern Province. He showed no interest in providing leadership and governance through the Provincial Assembly. More than two years lapsed. Then on 20 September 2014 in a secret ceremony outside of the “Horukari Bande” (Oro Provincial Assembly) he decides to get sworn in as a member of the Assembly. So now he has interest for the province(?).
There is no specific time prescribed by law as to when a person gets sworn in as a member of a Provincial Assembly. However the Constitution at Section 249 says that every person who is subject to the Leadership Code, before taking office and entering upon the duties of exercising any powers of his office, shall be sworn into office. Then Section 15 of the Provincial Government Administration Act 1997 states that the “Provincial Assembly shall meet within 15 days of the day fixed for the return of the writs following a general election to Local-level Governments”. Therefore members of the Oro Provincial Assembly would have been sworn in within 15 days of the day fixed for the return of the writs following a general election to LLGs. That date would have been its first meeting. But prior to conducting their business they would have been sworn in first in accordance with Section 249 Constitution. If Mr Arore was not readily available at that point, then he could have taken steps to be sworn in at the next schedule meeting. But he chose stay away for two years and then to get sworn in at a secret ceremony outside the assembly only reveals his true intent.
As for the allegation that Delilah Gore spent K17,000 of her Department’s money for the purpose now subject of the saga being clearly a purpose not intended by law is a clear misapplication of public funds. If the allegation is true then she is no better than Governor Havila Kavo or Francis Potape both of whom were recently found guilty of similar crime by the National Court. In May 2010 a New South Wales Labor MP Mr David Campbell resigned when it the media revealed him using his Government car to visit a gay sauna in Sydney. On 16 April 2014 NSW Premier Barry O’Farrel resigned over revelation at an anti-corruption commission hearing that he received an A$3,000 (K6,709.00) bottle of wine from a Liberal Party fund-raiser. On 27 April 2014, Jung Hong-won Prime Minister of South Korea resigned from office following the sinking of MV Sewol on 16 April 2014 in which more than 300 people were killed. He did so not because he was responsible in any way but because he was the ‘ceremonial head’ of the government which was heavily criticized for slow response to the disaster. Here, Delilah Gore has voluntarily offered to mothers, women and children, the disabled and disadvantaged kids and all who fall under her ministerial portfolio 17,000 reasons for her resignation. If she does not then her government which announced to this nation from day one of taking office that it will offer ‘transparency and accountability’ to translate those words into action. Both Havila and Potape who are in government should resign too.
Nemo Yalo is a Practising Lawyer and was the former Counsel to the Ombudsman Commission as well as Acting National Circut Court Judge
The power struggle in Northern Province offers a lesson to provincial governments nationwide. In that context the relevant laws discussed here should offer useful education. The political saga has kicked off with an alleged serious criminal offence – break and enter allegedly orchestrated by two MPs who are not members of the Oro Provincial Assembly. This writer is aware on credible information that the two MPs from Northern Province Delilah Gore and David Arore have, without any lawful excuse, failed to attend more than three scheduled Oro Provincial Assembly meetings notwithstanding that they each received due notice of those meetings.
Section 12 of the Organic Law on Provincial Governments and Local-level Governments states in part that if a member of Parliament is absent, without leave of the Provincial Assembly, during three consecutive meetings of the Assembly, unless the Assembly waives this provision upon satisfactory reasons being given, the member shall cease to be a member of the Provincial Assembly. To date the Oro Provincial Assembly in a duly scheduled meeting has not waived the operation of Section 12 to allow both MPs to remain as members of the Assembly. So by automatic operation of a Constitutional Law they are not members of the Oro Provincial Assembly.
How David Arore and Delilah Gore being national leaders ignore the voice of the Constitutional Law at the behest of the voice of their hunger for political power not only contradicts the generally accepted standards of leadership and governance but also defeats the very highest law of the land they each swore unto the Bible (therefore unto God) to uphold and obey on the very first instance they each stepped onto the floor of Parliament. Mr Arore reportedly said his actions are democratic. Under which Constitution and under what system of government? With respect, the alleged conduct is the behavior of persons who have lost moral compass and who by their own conduct are announcing to the nation that they are no longer fit to be accorded the title “Honourable”, a word that goes with an honourable profession - politics.
Section 15 of the Organic Law which provides for the procedures of Provincial Assemblies states that the Provincial Governor shall preside at all meetings of the Provincial Assembly at which he is present. And if the Provincial Governor is not present then it must be because, as Section 14 says, he is on leave of absence, or absent from the province, or is out of speedy and effective communication, or is otherwise unable to perform, or is not readily available to perform the duties of his office. In that case the Deputy Governor shall perform the functions and responsibilities of the Governor as Chairman of the Provincial Assembly. Governor Juffa was and is not on leave. He was and is readily available to perform the functions and responsibilities as the Chairman of the Oro Provincial Assembly. This week he has been out of the province, however he has not been out of speedy and effective communication so he would have been notified if an urgent or special provincial assembly meeting was necessary.
Unlike the government in the National Parliament Provincial Governors and Deputy Governors are not protected by law by way of grace period prohibiting motion of no confidence brought against them for a certain period from the date they take office. They are subject to a motion of no confidence provided for by Section 20 of the Organic Law. A Provincial Assembly may by a two-thirds absolute majority voting on a motion, dismiss the Provincial Governor or Deputy Provincial Governor. The motion must be expressed to be a motion to dismiss the Governor or the Deputy Governor. A notice of the motion must be presented to the Clerk of the Assembly (although the Clerk is not expressly mentioned by law) not less than one week’s notice. The notice must be signed by not less than one quarter of the total number of seats in the assembly. The grounds for dismissal of the Governor or the Deputy Governor are: (1) deliberately and persistently frustrating or failing to comply with the resolutions of the Provincial Assembly, or (2) deliberately and persistently disobeying applicable laws, including the Constitution, an Organic Law or any national legislation applying in the province, or (3) is negligent in exercising his powers or performing his functions, duties and responsibilities, or (4) does an act that is or is likely to bring into disrepute or call into question the integrity of his office. For the purposes of the first two grounds the conduct of the Governor or the Deputy must be deliberate and not a genuine mistake and it must be persistent, meaning not a one-off conduct but is continuous or obstinate. If Governor Juffa has by his conduct satisfied any of the grounds he is, like everyone, subject to the law. But the law must be invoked properly by those who are proper members of Oro Provincial Assembly as recognized by the Constitutional Law.
When there is a successful motion of no confidence against the Governor, the next in line to replace him is any one of the MPs from the province unless they are not themselves disqualified or are dismissed from the assembly. In the case of Northern Province, both MPs are disqualified by automatic operation of law. David Arore chose not to be sworn in as a member of Oro Provincial Assembly together with his colleagues on the first occasion following the conclusion of the general elections for Local-level Governments (LLGs) in Northern Province. He showed no interest in providing leadership and governance through the Provincial Assembly. More than two years lapsed. Then on 20 September 2014 in a secret ceremony outside of the “Horukari Bande” (Oro Provincial Assembly) he decides to get sworn in as a member of the Assembly. So now he has interest for the province(?).
There is no specific time prescribed by law as to when a person gets sworn in as a member of a Provincial Assembly. However the Constitution at Section 249 says that every person who is subject to the Leadership Code, before taking office and entering upon the duties of exercising any powers of his office, shall be sworn into office. Then Section 15 of the Provincial Government Administration Act 1997 states that the “Provincial Assembly shall meet within 15 days of the day fixed for the return of the writs following a general election to Local-level Governments”. Therefore members of the Oro Provincial Assembly would have been sworn in within 15 days of the day fixed for the return of the writs following a general election to LLGs. That date would have been its first meeting. But prior to conducting their business they would have been sworn in first in accordance with Section 249 Constitution. If Mr Arore was not readily available at that point, then he could have taken steps to be sworn in at the next schedule meeting. But he chose stay away for two years and then to get sworn in at a secret ceremony outside the assembly only reveals his true intent.
As for the allegation that Delilah Gore spent K17,000 of her Department’s money for the purpose now subject of the saga being clearly a purpose not intended by law is a clear misapplication of public funds. If the allegation is true then she is no better than Governor Havila Kavo or Francis Potape both of whom were recently found guilty of similar crime by the National Court. In May 2010 a New South Wales Labor MP Mr David Campbell resigned when it the media revealed him using his Government car to visit a gay sauna in Sydney. On 16 April 2014 NSW Premier Barry O’Farrel resigned over revelation at an anti-corruption commission hearing that he received an A$3,000 (K6,709.00) bottle of wine from a Liberal Party fund-raiser. On 27 April 2014, Jung Hong-won Prime Minister of South Korea resigned from office following the sinking of MV Sewol on 16 April 2014 in which more than 300 people were killed. He did so not because he was responsible in any way but because he was the ‘ceremonial head’ of the government which was heavily criticized for slow response to the disaster. Here, Delilah Gore has voluntarily offered to mothers, women and children, the disabled and disadvantaged kids and all who fall under her ministerial portfolio 17,000 reasons for her resignation. If she does not then her government which announced to this nation from day one of taking office that it will offer ‘transparency and accountability’ to translate those words into action. Both Havila and Potape who are in government should resign too.
Nemo Yalo is a Practising Lawyer and was the former Counsel to the Ombudsman Commission as well as Acting National Circut Court Judge
