Political Battle in Oro: Gary Juffa vs David Arore

Commentary  by Peter Balos

On the 28th of October, 2014, the Oro Provincial Assembly (the Assembly) in an unprecedented maneuver ousted Hon. Garry Juffa as the Governor of the Province and voted in Ijivitari MP Hon. David Arore as the new Governor. The illegality (or otherwise the constitutionality) of this political maneuver has now entailed national debate and is still at stake.

My Opinion on its legality

(i) Grounds of ousting

Section 20 of the Organic Law on Provincial Governments and Local-level Governments (the Organic Law) makes pertinent provisions for removal of the Governor of a province. Pursuant to this section, the 4 primary grounds of dismissing the Governor are:

• deliberate and persistent frustration or failure to comply with the resolutions of the Provincial Assembly, 

• deliberate and persistent disobedience to comply with applicable provincial and national laws, including the Constitutional Laws,

• negligence in exercising the powers or performing the functions, duties and responsibilities, or

• doing an act that is or is likely to bring into disrepute or call into question the integrity of the office.

Any one of these grounds is sufficient for removal of the incumbent and it does not really need to be coupled. Once the Governor is dismissed under Section 20, Section 19(1)(a) makes the consequential declaration that the office of the Governor is vacant. Then Section 21(1) allows the Assembly to elect one of the Assembly members who is also a sitting member of the Parliament. It is not illegal that all these can take place just in one meeting/session.

(ii) Procedural requirements

There are 3 major requirements and they are:

• two-thirds absolute majority vote,

• one week’s notice signed by one-quarter of the Assembly members, and

• the new Governor must be a sitting Member of the Parliament.

Let’s take a close look at each requirement.

(iii) Two-thirds absolute majority vote

The phrase ‘two-thirds absolute majority vote’ is not defined by the Organic Law. That being so, it is not impermissible to resort to Schedule 1.2 of the Constitution and adopt the definition of the term “absolute majority vote”, as defined in relation to the proceedings of the Parliament. In a nutshell, the relatable provisions read as such:

““absolute majority vote”, … means if qualified by reference to a certain fraction or percentage, affirmative votes equal to not less than that fraction or percentage of the total number of seats in the Parliament;”

Applying the gist of the above definition provisions in this case, ‘absolute majority vote’ here is qualified by two-thirds. Thus, the two-thirds absolute majority vote required by Section 20 of the Organic Law is simply the two-third of the total number of the members (seats) of the Assembly. I reiterate that, in the thrust of the definition above, it must be clearly understood that the two-thirds required by the Organic Law is the two-thirds of the total number of seats in the Assembly and not the two-thirds of the total number of members present in a given Assembly meeting. (My emphasis). In Oro Provincial Assembly, the total numbers of seats is 15. Out of this, 9 people voted to oust Hon. Garry Juffa and replace him with Hon. David Arore. By mathematical calculation, two-thirds of 15 is 10. That means, 9 is 1 less the required ‘two-third absolute majority vote’. (My emphasis)

(iv) One Week’s Notice

This notice is to be signed by one-quarter of total number of seats in the Assembly. One-quarter of 15 is 3.75. The nearest whole number is 4. It is my conjecture that the notice was signed by at least 4 members of the Assembly.

It is not clear whether or not the one week’s notice ought to nominate the next Governor. In the Parliament, a notice of motion of no confidence against the PM must nominate the next PM unless it is moved within the last 12 months of the 5 year life of the Parliament. That being not expressively stated in the Organic Law, it is not imperative that the notice should nominate the next Governor.

(v) New Governor must be a current MP from the Province

This is a non-issue as Hon. David Arore is the current MP for Ijivitari Open in Oro Province.

(vi) The Chairmanship

Section 14(2) of the Organic Law states that the Governor of a province is the Chairman of the Provincial Assembly of that province. However, Subsection (3) says that the Deputy Governor can be the Chairman if the Governor is:

• on leave of absence,

• absent from the province,

• out of speedy and effective communication, or

• otherwise unable to perform, or is not readily available to perform the duties of the office.

Again any one of these grounds is sufficient for the Deputy Governor to chair an Assembly meeting and it does not necessarily be coupled. In the current case, again it is my conjecture that the meeting of the Assembly on Wednesday, 28th October, 2014 was chaired by none other than the Deputy Governor having justified under one of these above considerations.

Conclusion

To conclude, based on the facts I am made known to, and presuming that the Assembly meeting was chaired by the Deputy Governor, it appears that everything was legal except one. That one being 9 is 1 less than 10. The required two-thirds absolute majority vote in an Assembly constituted by 15 seats is 10 votes. That should sufficiently nullify the purported election of Hon. David Arore as the new Governor of Oro.