The National- Wednesday, January 19, 2011
UNWITTINGLY, the opposition has forced a situation where the country will go for five months without the new governor-general, Michael Ogio, taking up office.
This is so because the threat of a motion of no-confidence forced the government to quickly move for parliament to rise as soon as the election of Ogio was concluded.
Although elected, it is a constitutional requirement that “before entering upon the duties of his office, a governor-general shall take the oath of allegiance and make the declaration of loyalty and the declaration of office before the chief justice and in the presence of the parliament”.
Only during a state of national emergency can this mandatory provision of the constitution (section 90) be not complied with.
Should this, or any other governor-general discharge the duties of his office without being officially sworn in, he will be suspended form office until such time he does and, if he does not do so at the first reasonably available opportunity, he may be dismissed from office.
This also fits into parliament’s own timetable which was that it would have elected the GG when it met at its scheduled date in May.
Parliament’s hand might have been forced by the courts to meet and elect a governor-general, but he cannot take office until parliament has met and witnessed his taking the oath of office.
To have sworn the governor-general-elect in at the last sitting, it would have meant parliament would have had to sit for two weeks at the very least – enough time for the opposition to move a motion of no-confidence.
Parliament cannot just elect a GG and then swear him in on the same afternoon, or the next day, because the head of state, Her Majesty the Queen, will have to be informed and she will have to give her assent.
As you read this, the cabinet secretary is travelling to England to inform Her Majesty of the decision of parliament.
Only after the head of state has given her assent is the governor-general-elect eligible to be sworn in.
That being the case, a rather curious situation arises which the law is silent about and which
is left to conjecture.
Is the governor-general-elect entitled to enjoy the privileges and benefits of the office to which he has been appointed but which, under the law, he is not yet fully and officially vested with the powers and functions thereof?
If the governor-general is prohibited by the constitution from discharging the duties of his office, by rights he should not be entitled to the benefits of that office.
He should not occupy Government House and he should not be paid. That will mean going five months without any official residence and without any means of income.
That has to be so because the provision for declaration of office is not sub-serviant to the election of the GG. They are equal.
If a person is not elected by parliament, he will not be GG. If a person, who has been elected as GG by parliament, does not take his oath of allegiance and declaration of loyalty etc, he will still not be GG.
Both acts must be performed and one must follow the other to elevate a person to the vice-regal post.
That said, how long a time is it reasonable for a GG to wait before he is sworn into office to begin his duties.
Again, the law spells out that there shall be an acting governor-general only when there is a vacancy in the office of the GG which, in our case, there is not. There is a governor-general elected and waiting anxiously to serve his office.
There can be an acting GG also if the substantive office holder is suspended from office. Of course, Ogio is not suspended from office.
He is not absent from the country, which is another reason why there should be an acting GG, or out of speedy and effective communication which, again, he is not.
The only provision where he is eligible is flimsy to say the least. That states that an acting GG may be take office if the substantive office holder is “otherwise unable to perform, or is not readily available to perform the duties of his office”.
This is flimsy because Ogio is able to perform and is readily available. He just has not been sworn in.
For all the forgoing concerns, it is incumbent that parliament meets earlier than May to ensure the governor-general is properly installed by swearing him in.