From FEC, Yar'Adua Gets Life Buoy

2010-02-02
THIS DAY Newspaper- Davidson Iriekpen


Barely two weeks after Justice Dan Abutu, chief judge of the Federal High Court, Abuja ruled that Vice President Goodluck Jonathan should start exercising the powers of the President pending the return to the country of President Umaru Musa Yar’Adua, he again ordered the Executive Council of the Federation to, within 14 days, determine whether the president is capable of performing the functions of his office.

The order was sequel to a suit filed by former House of Representatives Minority Leader, Hon. Farouk Aliyu, and Jigawa State Nigerian Bar Association NBA) Chairman, Sani Gabbas. They had sought the court’s opinion on whether Yar’Adua could be away from the country for a long period on health ground without handing over to his deputy, Vice President Goodluck Jonathan.
The president was flown out of the country to King Faisal Specialist Hospital and Research Centre in Jeddah, Saudi Arabia on November 23, 2009. A report by his personal physician said he was diagnosed with acute pericarditis, an inflammation of the membrane covering the heart.
Justice Abutu held that the court had no power to declare the president permanently incapacitated as the body vested with such powers in line with Section 144 of the 1999 Constitution is the Executive Council of the Federation.
In his ruling, Abutu held that the cabinet should convene and pass a resolution to determine whether the president is still fit to run the office.

“The Executive Council of the Federation is hereby directed within 14 days to consider and pass a resolution declaring whether the president’s absence since November 23 makes him incapable of performing the functions of his office,” he ordered.
Section 144 demands that a resolution for the constitution of a medical panel must receive a two-thirds majority vote of council members indicating that the president is incapable of discharging the functions of his office. Such a declaration must be forwarded to Senate President and the Speaker of the House of Represen-tatives and must be verified by a medical panel to be appointed by the Senate President to examine and establish the health status of the President.
Specifically, Section 144 (1) of the Constitution states: “The President or Vice President shall cease to hold office if by a resolution passed by two-thirds majority of all the members of the Executive Council of the Federation, it is declared that the President or Vice President is incapable of discharging the function of the office.”

Section 144(2), however, requires that the council’s declaration must be verified by a medical team to be constituted by the senate, and thereafter, the president could be removed after “a notice thereof signed by the President of the Senate and the Speaker of the House of Representatives shall be published in the official gazette of the Government of the Federation.”
Attorney General of the Federation and Minister of Justice, Mr. Michael Aondoakaa (SAN), had said the order of the court would be reviewed and appropriate action taken. Explaining its implication, the AGF had said: “FEC would decide whether the President is permanently incapacitated. If they decide that yes, he is, in their opinion, then their resolution will be sent to the Senate President and then the Senate President will constitute a medical team of five medical experts which will also include the President’s personal doctor.

"If they find out that the President is permanently incapacitated, the report will be presented to the Senate President, then they will decide whether to remove the President on the ground of permanent incapacity. In that case, Section 146 will now come into play, then the President will be removed."
Just like the earlier ruling, the order came under severe criticisms. Many analysts had described it as a charade. They had reasoned that there was no possibility that the ministers who were appointees of the president would resolve that he is not capable of performing the functions of his office. Soon after the order was granted, the president’s loyalists started scrambling for a strategy around the order.

First, the scheme was to create a logjam that will ensure that the two-thirds majority resolution required by Section 144 for the setting up of a medical panel was not achieved. Some ministers and aides of the president vehemently canvassed against the invocation of Section 144.
Just as analysts predicted, the federal cabinet rose from its meeting last week to declare that only President Yar’Adua could determine whether he is fit to remain in office. It also resolved that the president is not incapable of discharging the functions of his office.

The council further argued that the medical treatment undertaken outside the country by the President since November 23, 2009, does not constitute incapacity and therefore, he should not cease to hold office as specified by Section 144 and 146 of the 1999 Constitution.
The council added that there was nothing to warrant his removal from office.
Aondoaka had after the meeting presided over by Vice President Goodluck Jonathan, said their decision was "unanimous".
He said by Justice Abutu’s ruling, "the President had delegated all his powers to the Vice President" and that the judgment "gives the Vice President unencumbered power to act on his behalf.”

Yar’Adua’s absence from the country and failure to properly hand over to Vice-President Jonathan in accordance with the provision in Section 145 of the 1999 Constitution is however believed to be impacting negatively on governance and impairing vital decisions of government.
The 2009 Supplementary Appropriation bill recently passed by the two chambers of the National Assembly was taken to Yar’Adua on his sick bed for presidential assent and then the former Chief Justice of Nigeria, Justice Idris Kutigi, had to swear-in his successor, Justice Katsina-Alu. The view is that all these could have been done by Jonathan had he been made Acting President.
But for Aondoakaa, the absence of the President from the country does not amount to the creation of any power vacuum as he was still exercising presidential powers from Saudi Arabia.

He had argued that, "Under the Presidential system of government, the President can rule from any part of the world. He does not have to be in Nigeria to exercise his powers as President".
But reactions have continued to trail the ruling and the resolution of the cabinet. A Lagos-based lawyer, Chijioke Ogham-Emeka, blamed the problem on what he described as “imperfect constitution bequeathed on the country”, saying it was wrong for Section 144(1)(a) of the constitution to state that it is the council that should declare the president incapable of discharging the functions of his office. He argued that until Section 144(1)(a) was amended, nothing reasonable would be achieved especially since members cabinet were appointees of the president and people who hold their offices at his pleasure.

He said what the constitution should have called for an independent body such as the National Assembly to pass the resolution.
“I recommend that Section 144(1)(a) should be made to read that if the president is continuously absent from his office owing to ill-health for a certain period of time, an independent body like the National Assembly shall vote to set up a medical panel to verify the situation and consequently hold that he is incapable of discharging the functions of his office

“As for the judge who made the order, I think his hands were obviously tied by an imperfect Section 144(1)(a) of the Constitution. The ruling was not responsive to the problem at hand because it did not do anything spectacular. Nothing concrete or revolutionary should be expected from the ruling because it did not in any way move the country from point one to point two as far as the absence of the president from country is concerned”.

Following Ogham-Emeka’s line of thought, another Lawyer, Mr Festus Keyamo, said the provisions of Section 144 which requires the council to initiate the process of declaring the president incapable of discharging the functions of his office was faulty. He noted that it would amount to political suicide or hara-kiri for the ministers who are appointed by the president to now vote to remove him from office which may also sound the death knell for their political future.

Keyamo argued that the way forward was for the National Assembly to exercise its powers under Section 143 of the 1999 Constitution to impeach the President for the gross misconduct of not informing them he was proceeding on leave of absence and for failing to comply with the Constitution by handing over to the Vice President whilst proceeding on leave of absence.
“Anyone who was expecting anything positive to come out of this ruling was wrong. The only way forward is for the National Assembly to exercise its powers under Section 143 of the 1999 Constitution to impeach the President for the gross misconduct of not informing them he was proceeding on leave of absence and for failing to comply with the Constitution by handing over to the Vice President whilst proceeding on leave of absence.”

A Senior Lecturer at the Faculty of Law, University of Benin, Mr Edoba Omoregie, advised the judiciary to steer clear of the issue and declare itself unable to adjudicate on any matter instituted in connection with the absence of the president from the country. The Lecturer said the matter is political and should not be viewed from a legal perspective. He said the judiciary was ridiculing itself for attempting to interfere in the matter.
He advised the National Assembly to wield the big stick by commencing impeachment proceedings against the president for breaching Section 145 of the Constitution.

“As far as I’m concerned, the judiciary is ridiculing itself because court pronouncements are not suppose to be in vain but in this instance, any order made is made in vain because the issue cannot be resolved legally but politically. It is a political issue. It is not an issue that can be resolved through judicial process. In any case, it is not only through judicial process that constitutional breaches can be redressed. The National Assembly has the powers to redress constitutional breaches. As far as the matter is concerned, there is sufficient ground for the National Assembly to commence impeachment process against the president for breaching Section 145 of the Constitution. The judiciary is ridiculing itself and it would be better if it stays clear and declare itself unable to adjudicate on any matter instituted in respect of this matter,” he said.



 

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