THE RIPPLE EFFECT OF THE FREQUENT CONSTITUTIONAL BREACH BY THE NDU SU

EXECUTIVES: A MISUSE OF POWER AND AN ABUSE OF DUE PROCESS

BY SEN. IGBONGIDI, PRINCE IBENADOR

To: The Student Union Executive Council;

The Student Community.

Introduction

It is a recondite principle of law that one cannot give what he does not have. This
principle is encapsulated in the Latin maxim - nemo dat quod non habet. It is upon this
threshold that modern state (in this case, Unions) Constitutions capture the doctrine of
separation of powers in the delineation of governmental powers to institutions and
functionaries of government in such a manner that each arm of governmental powers is
administered by separate and distinct individuals. As a fundamental credo, the
Legislative Arm of government is empowered to make, amend or even repeal laws. The
Executive Arm of government is empowered to execute the laws, formulate policies and
maintain law and order. Judicial powers of government are vested in the courts duly
recognized by the constitution of any union, institution or nation.

This delineation of powers among the three arms is a safeguard against over-
concentration of powers in an arm which may lead to abuse of power, which has become
the case of the Comr Apiri-led Administration. It also constitutes checks and balances on
the use of these powers by the three arms of government.

The Constitution of the Student Union, Niger Delta University recognizes democratic
tenants by infusing the doctrine of Separation of Power as contained in Section 5 of the
Constitution. The doctrine means that a different body of persons is to administer each
of the three arms of government. This means that no one of them is to have a
controlling power over either or both of the others for the purpose of preserving the
liberty of the students and for the avoidance of tyranny. This is captured in the preamble
of the Students’ Union Constitution.

The doctrine of separation of powers is not a mere academic concept but a practical
principle that underpins our constitutional order. It is the bedrock of a free and just
society. It promotes good governance, accountability, and the protection of students'
rights on campus. It ensures that no arm of the SU becomes a law unto itself; sadly, the
Executive arm is fast becoming one. It is an essential aspect of our constitutional
democracy and it ensures that power is not concentrated in one arm of the SU to the
exclusion of the others. It is not merely a legal or constitutional principle but also a
philosophy and ideology. It is an embodiment of the democratic spirit that seeks to
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prevent despotism and arbitrariness by ensuring that each arm of government operates
within its sphere of authority.

It is unfortunate that four months after free, fair and transparent SU elections
conducted by the SMIC, the Executives have been wallowing in the abyss of misrule and
have been struggling tenaciously to sustain genuine democracy provided for in SU
Constitution. When we look at constant constitutional breaches by the Executive arm,
one will arrive at the reluctant and bitter realisation that the students who voted for
these Executives are not strong enough, united enough, courageous enough, or
enlightened enough to cause them to adhere strictly to the age-long principle of
separation of power.

The President/Executives are threatening the peace of the students’ community by

serially breaching the provisions of our SU Constitution and undermining organs and
institutions of the Union in order to advance his/their personal interest and
aggrandisement. While the President of the Union has ironically taken the oath to
preserve and protect the SU Constitution, the reality of his selective and wanton
violations of its provisions means that his oath is observed only in the breach.

As students, we protested, cried and clamoured for the return of the union and four
months after the elections, the executive arm has deliberately shut the doors of
democracy and its principles. The SU Executives have on several occasions breached the
provisions of the Union’s Constitution. Section 2 of the Constitution reads – “…this
constitution shall be ‘supreme’ and its provisions shall have binding force on ‘all’
members of the union…” The word “supreme” connotes finality and the word “all”
includes the SU Executives.

The Constitution of the Union provides for three arms of the Union – the executive,
legislative and judicial arm but for the past four months, the Executives have been
unable to conduct the election for parliamentarians which ipso facto cuts off the
appointment of judges and thereby, deny students the access to justice. No Parliament,
no Judiciary, where will advocates seek compelling orders? Do we as students learn and
do the converse? How can we explain that the SMIC we all criticized and never believed
in could in two weeks do what INEC cannot do with four years of planning (any
evidence?) and the Executives of the SU we thought would be messiahs cannot or better
still, have for four months deliberately refused to do what Tinubu has done in a matter
of weeks? How do we further explain that the Faculties of Law and Pharmacy have
successfully conducted their parliamentary elections and the SU is yet to even when SU
assumed power and was inaugurated before the Faculties?

This deliberate act and the imposition of higher Students’ Union dues contrary to what
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was agreed in Congress is a gross violation of the Supreme Constitution of the Union and
an abuse of due process. In furtherance, with each day that passes without a parliament
and a legal adviser to the Executives, Section 26(10) & (20) are breached in perpetuity.
The Executives are clearly performing the roles of the other arms. Democracy is a
government of the people, unfortunately, the Executives are beginning to run the
government like a family meeting – who is rich has the say; in this case, who has the
power has the say. This power that belongs to the students? Laughable.

In light of the foregoing, the living room of my sanity is threatened and my legal
hormones blown into full-scale lunacy in pondering where the SU Executives imported
the powers to overturn the decision of a congress of the union. And as Your Excellency
very much knows, respect for the rule of law is integral to promoting and preserving the
values and principles of democracy. Sadly, however, by the actions of the government of
Comrade Apiri B. Precious, one is forced to think otherwise.

It is trite that the provision of the Constitution without the blink of an eyelid must be
obeyed. A breach of the constitution is so fundamental and it cannot be remedied. When
the constitution has stated steps that must be taken before an action can proceed then
omitting to do so would render such act one made in futility. It logically follows that the
acts of the executives are in futility. Fundamentally, it should be noted by the Executives
that you cannot violate one provision of the Constitution in the bid to remedy the
alleged breach of another provision of the same Constitution.

It is very grievous and serious for the President of the Union who had subscribed to an
Oath and solemn affirmation prescribed as a condition precedent to the assumption,
holding and exercise of the powers vested by the Constitution in him as the holder or
the office of President, to be noted of deliberate violation, breach, contravention or non-
compliance with any provisions of the Constitution which he swore to preserve, protect
and defend in the discharge of the duties and performance of the function of the office.

The consequence of deliberate violation, infraction, noncompliance, breach or

contravention of the provisions of the Constitution by any President amount to gross
misconduct on his part which is a ground, if proved, that will warrant his removal from
the office.

Finally, it is worth noting that the doctrine of separation of powers is not a barrier to
collaboration and coordination among the arms of government; it threatens no arm. It is
a framework that facilitates effective governance by delineating powers and
responsibilities while fostering accountability and preventing abuse of power. The SU
Executives should swing into action immediately to facilitate the elections of
parliamentarians and subsequently, the appointment of judges. We have issues that are
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of litigating interest.

I beg the government, do not force the students to use the power of Congress and
peaceful protest; may we not fight what we prayed for. Comrade Apiri, let the students
breatfffeee, don’t suffocate us!!!

Igbongidi, Prince Ibenador,

400 Level, Faculty of Law,
Niger Delta University.
08130383395; princeibe243@gmail.com

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