Yar'Adua, The Court and Constitution

2010-01-31
THE GUARDIAN Newspaper-Akpo Mudiaga Odje


This country, with it institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it or revolutionary right to dismember it or overthrow it.

- Abraham Lincoln


THE polity has gradually evolved from one of charged lethargy to paralysing anxiety and concern regarding the state of health of our dear President Alhaji Umaru Yar'Adua vis-ˆ-vis the relevant provisions of the 1999 Constitution.

Indeed, the atmosphere has been further galvanised by the recent judicial pronouncements relating to the status of the Vice President in the present circumstances as well as the decision of the Executive Council of the Federation not to invoke its powers under Section 144 of the 1999 Constitution and the resolution of the Senate urging the President to formally notify it of his medical vacation in accordance with Section 145 of the Constitution.

This discourse puts into microscopic scrutiny these contending issues and the judicial pronouncements by juxtapositioning same with the Constitution.


Issue put forward in the first case: Suit No. FHC/ABJ/CS/10/2010 Onwuekwe vs AG Federation & Ors.

In this case filed at the Federal High Court, Abuja, which came before his Lordship, Hon, Justice Dan Abutu, the Plaintiffs principally asked the Court to determine whether in the absence of the President and in his default in sending a written declaration as directed under Section 145 of the Constitution, the Vice President can nevertheless carry out presidential duties to cope with the exigencies of government and responsibilities of the State to its citizenry pursuant to Section 5(1) and 148 of the 1999 Constitution.

In answering this question on 13/1/2010, the learned trial Judge, Justice Dan Abutu held that:

"The Vice President, Goodluck Jonathan, could exercise, in the absence of the sitting President, all the powers vested in the President. He said the exercising such presidential powers by the Vice President could only be queried by Mr. President if he did not permit the Vice President to so perform the presidential functions."

In other words, in the absence of Mr. President and in default of complying with Section 145 above, the Vice President shall continue to exercise presidential powers subject to the provision of Sections 5 and 148 of the 1999 Constitution.

Indeed, from this perspective, there is nothing new or spectacular about the judgment. It merely repeats or reinforces the provisions of Sections 5 and 148 of the 1999 Constitution. These Sections provide, to wit:

Section 5(1): Subject to the provisions of this Constitution, the executive powers of the Federation -

(2)(a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and

(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

Section 148(1): The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of government.

As can be lucidly gleaned from the above, the Vice President remains subservient and at the mercy as well as discretion of the President in carrying out any such functions that must specifically be delegated to him by the President.

Certainly, the judgment of Justice Dan Abutu recognised this fact when he noted that:

"The exercise of such presidential powers by the Vice President could only be queried by Mr. President if he did not permit the Vice President to so perform the presidential functions."

In point of fact, the President remains President and the Vice President remains Vice President!

Put succinctly, Dr. Goodluck Jonathan, by the terms of the said judgment, cannot by any stretch of the imagination be referred to as Acting President!

The judgment thus delivered remains purely academic, ineffectual and otiose, in enlarging and/or enthroning the Vice President to the exalted status of Acting President as recognised by our Constitution.


Issues put forward on the second case: Mr. Farouk Aliyu & Ors. vs AG of Federation & Ors.

IN the second judgment delivered on 22/1/2010 by Justice Dan Abutu, His Lordship ordered that the Executive Council of the Federation should within 14 days from the date of his judgment, take a decision whether to invoke the provisions of Section 144 or not. In this case, the Plaintiff had asked for the following issues to be determined:


Whether the absence of Yar'Adua from Nigeria and from his constitutional and statutory duties for medical treatment since the 23rd day of November 2009 at a Saudi Arabia hospital without being on vacation did not constitute permanent incapacity within the meaning and general intendment Section 146 of the 1999 Constitution.

Whether having regard to the fact that the President, who has not been on vacation, has been undergoing treatment at a hospital outside Nigeria in Saudi Arabia since the 23rd day of November 2009, the Executive Council of the Federation ought not to be compelled to pass and publicise a resolution as to whether or not the President is incapable of discharging the functions of his office.

Whether it was lawful and constitutional for the President indefinitely to exercise or purport to exercise the powers of the office of the President of Nigeria from a hospital outside Nigeria.

Whether or not the indefinite absence of the President from Nigeria since 23rd of November 2009 without notifying the National Assembly or authorizing the transfer of the exercise of the powers of the office of the President to the Vice President was compatible with the oath for the due execution of the duties of his office prescribed in the Seventh Schedule to the Constitution by virtue of Section 149 of the Constitution.
The judgment delivered by Justice Dan Abutu in this case is novel only to the extent that it declared the nomenclature of the Federal Executive Council (FEC) as illegal, whilst legalizing the Executive Council of the Federation (ECF).

Be that as it may, the illegal Federal Executive Council had hitherto brandished its decision not to invoke the provisions of Section 144 in its counter affidavit in this action.

That is to say, the Council whether illegal or legal, will simply decide within 14 days that it does not want to invoke the provisions of Section 144 because in their opinion, the President is not permanently incapacitated nor suffers from any infirmity of the body and mind that will render him incapable of discharging the function of his office.

Naturally, having this in mind, the Attorney General of the Federation, curiously declared that he would not appeal against the court judgment.

In other words, he would only replace the illegal letter-headed Federal Executive Council, with Executive Council of the Federation and return the same verdict to wit:

"We are of the opinion that Mr. President's health concerns are not sufficient enough to warrant invoking of Section 144 of the 1999 Constitution period!"

And this is what the Attorney General of the Federation did last Wednesday, with the resolution from the now legalised Executive Council of the Federation to the effect that the President in their opinion is not permanently incapacitated merely because he has sought medical attention abroad for almost 70 days!

In retrospect, the circumspect lawyer of the Plaintiffs in that case clearly envisaged this action by the learned Attorney General of the Federation. Thus, he had to write to the Chief Law Officer within the week, emphasising that the judgment did not mean the Executive Council of the Federation would just pass any resolution to comply with the judgment. For this reason, therefore, the last may not have been heard from the parties on this vexed issue.

The two judgments settled nothing nor addressed the real issues at stake

Accordingly, the two judgments delivered by Justice Dan Abutu have settled nothing, nor have they provided a genuine or veritable avenue for this nation to move forward constitutionally in the absence of Mr. President.

Surely, the crucial point of reference is Section 145, which requires a written declaration from Mr. President to the National Assembly to set in motion the authority of Mr. Vice President to become Acting President. And that Section 145 provides that:

"Whenever the President transmits to the President of the Senate and the Speaker of the House of Representative a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President."


Falana and NBA cases may open new vistas in the Law

I think Chief Femi Falana's suit as well as that of the Nigerian Bar Association (NBA), may offer far-reaching effects if they succeed because the NBA specifically is asking the Court to swear in the Vice President under the jurisprudential doctrine of "Necessity" pursuant to Section 145 of the Constitution.

How far this can be achieved remains a big challenge since Justice Dan Abutu had earlier on rejected the prayer of the Plaintiffs in the second case, to swear in the Vice President as Acting President. In that instance, the judge retorted that:

" I cannot give an order directing the Vice President to begin the functions of office of the President of the Federal Republic of Nigeria, since he has been performing such functions."

This may be a judicial pre-emptive strike!

Does the President interview with the British Broadcasting Corporation (BBC) constitute a Written Declaration under Section 145 of the Constitution?

In one of the several legal challenges, the articulate Ajulo Esq., has asked the Court to declare that the President's interview with the BBC was sufficient to jumpstart the consequences of Section 145 of the 1999 Constitution and thus grant authority on the Vice President to become Acting President.

This is based on the view that the interview had been downloaded, transcribed and/or written in the circumstances and already transmitted by virtue of electronic devices to the President of the Senate and the Speaker of the House of Representatives.

This case may yet bring out the dexterity of our Courts to rise up to the challenges of the yawning gap the President's ill health has caused to the polity.


How to ascertain state of a President's health under the 1999 Constitution

THE provisions relating to the above are sharply captured in Sections 144 and 146 of the 1999 Constitution, which so far as material for our purpose, provide that:

Section 144(1) "The President or Vice-President shall cease to hold office, if:

(a) 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 functions of this office; and

(b) the declaration is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the President of the Senate and the Speaker of the House of Representatives.

(2) Where the medical panel certifies in the report that in its opinion the President or Vice-President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, 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.

(3) The President or Vice-President shall cease to hold office as from the date of publication of the notice of the medical report pursuant to subsection (2) of this section.

Section 146(1) The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 or 144 of this Constitution."

These provisions of the Constitution are clear and unambiguous and must thus be given their true and ordinary meaning in their interpretation. The Court cannot, therefore, look outside this definition. This is the view of the Court in the case of Onagoruwa vs. State (1993) 7 NWLR (pt.303) 49 at pages 100-101 paras. H-A wherein the proficient Niki Tobi, JCA (as he then was) stated the law thus:

"It is trite law that where a statute has defined a particular word, a Court of law is bound to use the particular definition. It has no business to go outside the definition in search for other meanings."

We also rely on the locus classicus of Adisa vs. Oyinnola (2000) 10 NWLR (pt.674) 116 at 202 paras. D-F and Military Governor of Ondo State vs. Adewunmi (1998) 3 NWLR (pt.82) 280 at 313 paras. E-F.

Consequently, the first step to ascertain the state of health of our President is to ignite the provisions of Section 144(a) by two-thirds of the members of the Executive Council of the Federation passing a resolution to the effect that Mr. President is incapable of discharging his functions.

For double assurances and safeguards, there must be a Verification Report of that resolution by a medical panel established under Section 144 (4). And if verified, under Subsection 2 of Section 144, the President of Senate and the Speaker of the House of Representatives are obliged to sign a notice, which shall be published in the Official Gazette of the Government of the Federation.

And once this is done, the President or the Vice President, as the case may be, shall cease to hold office in accordance with Section 144(3) thereof.

Honestly, the several conditions and provisions listed above are to safeguard the President from being unduly removed from office on a mere allegation of an unsubstantiated medical condition.

Role of Executive Council of the Federation on this matter

In our present case, the now restyled illegal Federal Executive Council hitherto publicly declared on Wednesday 3/12/2009, through its Minister of Information, Mrs. Dora Akunyili that it scoffs at the calls for Mr. President's resignation and in this respect it is not contemplating to ignite the provisions of Section 144 of the Constitution.

Again after the 14-day judicial ultimatum, the Executive Council of the Federation, now recognised by law, has stated publicly on 27/1/2010 that it would not invoke the provisions of Section 144 above. This position, as at today, puts to rest the possibility of invoking Section 144 of the Constitution.

These present actions by those who the Constitution has made repositories of public power are a clear signal that this constitutional option may never see the light of day.


President's Absence and the Powers of the Vice President to Act

SECTION 145 of the 1999 Constitution, is germane in discussing this point. That Section provides that:

"Whenever the President transmits to the President of the Senate and the Speaker of the House of Representative a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President."

Under this point, it must be noted clearly that the Section recognises Acting President for the Vice President, ONLY when Mr. President previously transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or otherwise unable to discharge his duties.

In this case, the Vice President takes over as the Acting President with full capacity to act in his stead. However, it appears that when there is no transmission as stated in Section 145, the Vice President remains Vice President, performing only delegated functions as directed by Mr. President. In other words, he shall be subject to the control and direction of Mr. President in discharging Mr. President's function at all times except those constitutionally reserved for him.

This view is re-enforced by Section 148 of the 1999 Constitution, which provides for the powers of the Vice President thus:

Section 148(1) The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of government.

This presupposes delegation and loyalty to the President as opposed to independence and full powers under Section 145 above.

If the Vice President becomes Acting President, under Section 145 above, certainly he may not require any further directives or control from the President to discharge his functions. However, if it is merely delegated as in this case, where President Umaru Yar'Adua left for Saudi Arabia, without transmitting any written declaration to the Senate and House of Representative, the Vice President, Mr. Goodluck Jonathan, is seized with only delegated authority and cannot be an Acting President.

In the eyes of the law, as far as Section 145 is concerned, Mr. President is not on vacation! See Justice Dan Abutu's judgment in the first judgment: Suit No. FHC/ABJ/CS/10/2010. Onwuekwe vs AG of Federation & Ors. (Supra).

Be that as it may, the office of the Vice President is firmly established and cannot be declared vacant or wished away by the whimsical caprices of a sitting President. In AG Federation vs. Abubakar (infra) at page 124 para E-F, the articulate Onnoghen, J.S.C posited that:

"There is no where in the 1999 Constitution where it is stated that the President or Vice President of the Federal Republic of Nigeria shall be removed or is removable from that office if he defects from the political party on whose platform he was elected to that office and joins another political party."

However, notwithstanding the supremacy of the President's office over that of the Vice President by virtue of Section 148 thereof, the Vice President, in the discharge of his duties, is not a servant of the President. He must have a mind of his own and act in the best interest of the nation, regardless of party affiliations and the Presidents prompting. Put succinctly, the Vice President should have a mind of his own.

Thus, the Court in AG Federation vs. Abubakar (2007) 10 NWLR (pt. 1041) at page 156, paras E-H, speaking through the terribly learned Muhammad, JSC, noted that:

"I think in a democracy, which is founded upon a Constitution, which assigns offices and responsibilities, the Vice President cannot be a slave to the President with no will or opinion of his own and that his personality or individuality should submerge in that of the President. That is perhaps, why Abdullahi, PCA held the view that:

'I, too, do not know o f any authority, which creates a supine, single-minded Vice President indeed a robot. It is respectfully to my mind not the intention of the Constitution to create a Vice President with no mind of his own.'

"Although both the President and his Vice contested and won election together under the umbrella of the same party, I share the same view with the Court below that the bond of companionship, which compelled them particularly the Vice Presidential candidate to remain together during election loosens, soon thereafter, and they would swim to certain extent separately. On his election, the Vice President ceases to be the Vice Presidential candidate of the sponsoring party but a Vice President of the Federal Republic of Nigeria, so says section 141 of the Constitution." (Underlining supplied for emphasis).

The Vice President is therefore a force to reckon with in the interplay of power within the seat of government. However, as at today, the Vice President remains merely a Vice President exercising delegated authority under Section 148 for the President and not an Acting President with full authority as provided for in Section 145 of the 1999 Constitution.


Vice President becomes President if the incumbent President resigns

SECTION 146 of the Constitution enables the Vice President to hold the office of the President where the same becomes vacant by reason of death or resignation.

There is a world of difference between Acting President and carrying out presidential function as directed by the Court

It is only and until the President transmits a written declaration to the Speaker of the House of Representatives and the President of the Senate, that Dr. Goodluck Jonathan can become Acting President in line with Section 145 of the 1999 Constitution.

There is a world of difference between Acting President and carrying out presidential duties. Accordingly, by the provisions of the Interpretation Act Cap 123 Laws of the Federation 2004, duly incorporated by Section 318(4) of the 1999 Constitution, an Acting President has the same powers as the substantive President, whereas to carry out presidential duties as the Court directed, Dr. Goodluck Jonathan still remains merely a Vice President as directed by the provisions of Sections 5 and 148 of the Constitution.

The impact of Convention and National Interest in this matter

After 30 days from 23rd November 2009, President Umaru Yar'Adua was in the national interest and convention, obliged to send a declaration in compliance with Section 145 of the Constitution.

It will be recalled that it was the absence of the Presidential Power and Authority that made it impossible for President Barack Obama of the United States of America to be reached to stay action on Nigeria being blacklisted in the terror list after the Christmas botched terror attack.

In point of fact, when President George Bush Jnr. went for his about two-hour operation, he handed over power as Acting President to Mr. Dick Cheney his Vice. The same with British Tony Blair, who, during his heart bypass operation of about 16 hours, handed over to his Deputy, Mr. Prescott, as Acting Prime Minister.


The National Assembly vis-ˆ-vis Section 145

IT was good to hear that the Senate has apparently woken up from its dogmatic slumber by urging the President, through a resolution, to formally notify it of Mr. President's medical vacation, thus granting the consequence of Section 145 of the Constitution. This is, indeed, a commendable action by the Senators.

Role of Nigerians in this matter

From all we can deduce so far, there is a groundswell of opinion that Mr. President should formally set in motion the provisions of Section 145 of the Constitution.

From Prof. Wole Soyinka to former heads of state like Gowon, Shagari and Shonekan, the message is the same: Mr. President hand over power!

President's action is an impeachable offence

In must be noted and highly emphasised that the President's wilful refusal to enforce the provisions of the Constitution amounts to an act of gross misconduct punishable by impeachment under Section 188 of the Constitution.

This is the very essence of the spirit of checks and balances as well as to eschew acts of dictatorship and autocracy.

I sincerely hope and pray that Mr. President heeds to the request of the Senate, lest he be impeached for refusal to so comply.


Similar provision like Section 145 in the United States and Ghana's Constitutions


Constitution of the United States of America, Amendment XXV 1967, Section 3
AS copycats, and just as we copied the preamble of the American Constitution, so we have lifted hook line and sinker, the XXVth Amendment ratified in 1967 of the American Constitution. And Section 3 thereof provides that:

"Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President."

This informed the conventional background that President Ronald Reagan relied on in handing over to George Bush (Snr.) as Acting President, when he was shot in 1981.

Similarly, the younger President George Bush handed over power to Dick Cheney, his Vice President, as Acting President when he underwent on emergency operation for less than three hours!

That America is a nation need not be over-emphasised because everything is done in the national interest. On the contrary, Nigeria is a country and not a nation. So, things are done in personal interest rather than national interest, as in this case.


Constitution of the Republic of Ghana 1992
Sincerely, the Ghanaians have made their model very simple and automatic upon the President leaving the shores of Ghana. Section 60(8) of the 1992 Constitution of Ghana provides that:

"Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of the office, the Vice President shall perform the functions of the President until the President returns or is able to perform his functions."

This is a unique provision that automatically makes the Vice President "Acting President" without using those words. This provision abhors leadership vacuum. It is straightforward and lucid.

However, there may be some problems regarding who determines when the President is unable to perform the function of his office, but I have no doubt in my mind that by the support through a general referendum by which the Ghanaian Constitution was enacted in 1992, the operators will NEVER frustrate the intents and purposes of its provisions.

It will work for them, but it will surely not work for us. So, we need a more comprehensive amendment to Section 145 of our Constitution to meet the Nigerian character and our proclivity for holding on to power forever!


Amendment of Section 145 of the 1999 Constitution urgently required

EXPERIENCE being the teacher of hindsight, we hereby recommend to the National Assembly Committee on the review of the 1999 Constitution, to amend Section 145 to read:

"Whenever the President is out of the country for an unbroken period of 30 days either for vacation or otherwise incapable of discharging the functions of his office, he shall transmit to the House of Representatives and Senate a written declaration to that effect, within 30 days, thereof to enable the Vice President become the Acting President.

Provided that if the President fails to comply with this Section after 30 days whether he is within or outside the shores of the country, the National Assembly shall by simple majority pass a resolution authorising the Vice President to be the Acting President until the President is back and is examined as well as certified fit by a medical team set up in accordance with provisions of Section 144 (4) of the Constitution."

This amendment may in future prove to be a better safeguard against this most embarrassing situation that our dear country has found itself in the comity of nations.

Conclusion

It is a thing of shame and regret to note that for almost three months as at today, the President of a nation, who even to pedestrian knowledge is unwell, is yet to formally inform the National Assembly as directed by the very Constitution he swore to defend and uphold upon being sworn into office on 29th May, 2007. It is a denigration of that exalted office.

I think it should be condemned and I so condemn it.


 

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