Yar'Adua Debacle Throws Up New Proposal on Presidential Succession

2010-02-01
THIS DAY Newspaper- Sufuyan Ojeifo


When the Senate spent a little over eight hours last week in a two-day closed session to take a decision on the briefing it received on the health condition of President Umaru Musa Yar’Adua from the Secretary to the Government of the Federation (SGF), Alhaji Mahmud Yayale Ahmed, Nigerians were expecting a far-reaching resolution that would break the gridlock in the polity occasioned by the president’s prolonged absence from the country.


Yar’Adua had been at the King Faisal Specialist and Research Centre in Jeddah, Saudi Arabia, where he had been receiving treatment for acute pericarditis (inflammation of the membrane around his heart). He left the country on November 23, last year, without transmitting a letter to the National Assembly to enable his Vice President, Dr. Goodluck Jonathan, to step in as Acting President.


The general concern has been that Yar’Adua should have transmitted the letter in line with Section 145 of the 1999 Constitution so that there could be an Acting President in place. But Yar’Adua minders have insisted that the exercise of the power to transmit the letter is discretionary. However, when the Upper House drew the curtains on its two-day closed session, its decision was anchored on Section 145.


The Upper House urged Yar’Adua to notify the National Assembly with his medical vacation pursuant to Section 145. But in charting the path of political solution to give a soft landing to the president, it could not attach a timeline within which he should notify it. The Upper House was very careful in giving the president a deadline, realizing that its resolution does not have a force of law and therefore not enforceable.


Consequently, it gave a mandate to the Senate Ad-Hoc Committee on the Review of the 1999 Constitution to propose an amendment to Section 145 to “resolve the flaws exposed by the present circumstance.” When the amendment is proposed, it would be aimed at removing the word “whenever” that renders the powers provided in the section discretionary. Not only that, a timeline for the transmission of such letter will be proposed for inclusion in the section.


But this is not the only section of the Constitution that requires timelines for them to be efficacious. In fact, the other sections had already been presented to the Senator Ike Ekweremadu-led Senate Committee on Constitution Review at its zonal public hearing that took place on December 14 and 15 at the Port-Harcourt centre by Chairman of the Senate Committee on Solid Minerals, Senator George Thompson Sekibo (PDP, Rivers East).


Sekibo’s memorandum was an improvement on his Presidential Succession Order Bill, which was read for the first in the Senate on July 7, 2008 and which had since then been kept in the cooler due to its tendentious form and content. However, the memorandum he presented was tagged “Memorandum on Presidential Succession Order.”


He said, “My proposed amendments are centered on the proper mechanism for filling the offices of the President and Vice President of the Federal Republic of Nigeria in the event of the occurrences of certain circumstances described and contemplated by the Constitution, which may occur in the course of governance. Proper procedures for handling the speculated occurrences were not addressed by the constitution, thereby creating lacuna in the event of their occurrences.


“To the ordinary mind, it may appear that the constitution has fully provided for the order of succession to the Presidency; and, as such, no further addition is required. This would be a completely wrong assumption, because constitutions, by their very nature, are meant to provide the general framework and guidelines of any system of government, and not the details of how such system should work in practice. Since no other relevant Act has been enacted by the National Assembly, and a review of the constitution is in process, it is necessary to include these details on how those guidelines should be carried out into effect.


“As an example, we are all living witnesses to the declaration of a State of Emergency in Plateau State in this current democratic dispensation. We may recall that after the imposition of the State of Emergency, the Presidency and indeed the National Assembly suddenly realized that there were no enabling laws to facilitate the running of the subsequent alternative government of Plateau State.


“You would also recall that frantic efforts were made by the Executive and the National Assembly to dig up, dust up and revalidate a series of moribund laws in order to make the declared State of Emergency workable. That blunder may have been overlooked or treated lightly and blamed on the learning status of our nascent democracy.”


But dwelling on the timeframe for swearing- in a successor, Sekibo said that the issue was not also provided for by the constitution or contained in any enabling law, asking, “Should this aspect be left to speculation, and thereby causing unnecessary tension and apprehension in the polity?” He posited: “Where there are definite provisions of the law on the procedure to follow, the minds of the citizenry will be at rest whenever there is an occurrence of any of the circumstances described under section 143 and 144 of the 1999 Constitution. There should be concise provisions on the timeframe for the swearing in of any successor to the Presidency.


On the time limit for conduct of nullified elections, he observed that “there is also the Constitutional provision that stipulates that when the Senate President holds office as President of the country, election should be held within the period of three months for a new President and Vice President. It is pertinent to ask this salient question, what should be the situation where an election fails to hold within this specified period due to unforeseen circumstances? I feel certain that the constitutional provision in this area needs further consideration so that every loophole is carefully plugged.”


Sekibo had listed provisions for proposed amendment to include time specification in Section 136(2), which states inter alia: “Where the persons duly elected as President and Vice President die and are unable for any reason whatsoever to assume office before the inauguration of the National Assembly, the Independent National Electoral Commission shall immediately conduct an election for a President and the Vice President.


He had proposed thus: Subsection (2) of Section 136 is amended by the addition after the words “immediately conduct an election” the words “within thirty (30) days.” Thus, the new subsection 136(2), according to him, shall read thus: “Where the persons duly elected as President and Vice-President die or are unable for any reason whatsoever to assume office before the inauguration of the National Assembly, the Independent National Electoral Commission shall immediately conduct an election within 30 days for a President and the Vice-President.


On time specification in Section 140, which states inter alia: “(1) A person elected to the office of President shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed in this constitution and he has taken and subscribed to the Oath of Allegiance and the oath of office prescribed in the Seventh Schedule to this constitution; and, (2) The oaths aforesaid shall be administered by the Chief Justice of Nigeria or the person for the time being appointed to exercise the functions of that office,” he said it should be amended by the addition of the following new subsections (3) and (4).
His proposed Subsection 3 provides: The oaths aforesaid shall be administered on May 29 of the year following an election year at 12.00 noon prompt,” while in Subsection 4, “The person elected as President is deemed to have been inaugurated after 12.00 noon on the said date, as in subsection (3) of this section, even though he may not have subscribed to the Oath of Allegiance and oath of office and shall commence his duties and functions as President of the Federal Republic of Nigeria; while the aforesaid oaths be administered to him thereafter.”


Sekibo had also dwelled on amendment of Section 145 even before the present crisis. Section 145 of the Constitution reads: “Whenever the President 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 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.”


Consider his proposed amendment: “Section 145 of the constitution is amended as follows: By making section 145 as subsection 145(1) after deleting the word “whenever” and inserting the words “shall” after the word “President,” and the new subsection 145(1) shall read: “The President shall transmit to the President of the Senate and the Speaker of the House of Representatives 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.”


He had further proposed additional amendments thus: “By the addition of a new subsection as subsection 145(2)- “The Vice-President becomes an acting President whether there is a written declaration from the President or not, whenever the President becomes indisposed on medical ground for a period not exceeding 48 hours from when the President subjects himself to such medical attention and could not discharge his duties and functions from his office in the Federal Republic of Nigeria.
“By the addition of a new subsection as subsection 145(3)- “The Vice-President ceases as acting President whenever the President returns from such medical indisposition as contemplated in subsection 145(2)


Sekibo also proposed amendments to Section 146, which states inter alia: (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 of this Constitution.
(2) Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of the Senate shall hold the office of President for a period of not more than three months, during which there shall be an election of a new President, who shall hold office for the unexpired term of office of the last holder of the office.
(3) Where the office of Vice-President becomes vacant:-
(a) by reason of death or resignation, impeachment, permanent incapacity or removal in accordance with section 143 or 144 of this Constitution;
(b) by his assumption of the office of President in accordance with subsection (1) of this section; or
(c) for any other reason,
the President shall nominate and, with the approval of each House of the National Assembly, appoint a new Vice-President.”
Consider his proposed amendment: Subsection (1) of Section 146 is amended by the addition after the words “The Vice-President shall” of the words “be administered to the oath of Allegiance and oath of office within 24 hours to” and the new subsection 146(1) shall read thus: “ The Vice-President shall be administered to the oath of Allegiance and the oath of Office of the President within 24 hours to 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 and 144 of this Constitution.
“Subsection 146(2) is amended by the addition after the words “the President of the Senate shall” of the words “be administered to the oath of Allegiance and Oath of office within 24 hours to” and the new Subsection 146(2) shall read thus:
“Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of the Senate shall be administered to the oath of Allegiance and oath of office of the President within 24 hours to hold the office of the President for a period of not more than three months, during which there shall be election of a new President, who shall hold office for the unexpired term of office of the last holder of the office.”


He proposed that Subsection 146(3)(c ) of the constitution is amended by the addition after the words “the President shall nominate” of the words “within seven (7) days of the death or resignation, impeachment, permanent incapacity or the removal of the Vice-President,” and the addition after the words each House of the National Assembly of the words “within seven (7) days of presentation” and consequently “the new subsection 146(3) (c) shall read thus: “(c) for any other reason, the President shall nominate within seven (7) days of the death or resignation, impeachment, permanent incapacity or the removal of the Vice-President, and, with the approval of each House of the National Assembly within seven (7) days of presentation, appoint a new Vice-President.”


Sekibo, in his conclusion, had canvassed the proper running of any system of government that seeks to make progress and carry the people along, saying “it must never be premised on personalities or sentiments, while the purposes of our laws needs to project into the future, whilst also taking cognizance of the present.” He posited: “One of our main task as pioneering legislators of this system is to do all in our stride to entrench a solid and virile democratic injunction, so as to enable us attain our development dreams.”


He has left the committee with profound words that resonate in the circumstance of the nation’s current political crisis: “Now is the time to rethink over our system of presidential succession, not within or after a succession crisis,” adding, “We must note that presidential succession provisions are triggered by events that could tear the very core of our nation’s political stability. Therefore the need for a smooth, lawful, and constitutional transition of power is of utmost importance in our young democracy, and must be contemplated before they occur.”


He advocated further: “We must have a system in place, so that it is always clear – and beyond all doubt – who the President is, especially in times of national crises,” warning that, “A non-properly defined Presidential succession order for a country practicing the presidential system of government is like an accident waiting to happen.” He had admonished thus: “We must therefore take this opportunity and instill confidence in the government and our people who solely depend on our good sense of judgment.”


Indeed, this current political crisis would appear to be a blessing in disguise for Sekibo, whose perceived tendentious Presidential Succession Order Bill has been kept in the cooler in the Upper House. And because the bill had run into a storm, he had chosen to come through the way of a memo to address specific sections of the constitution that could be controversial in the absence of timeframe. The ball is the court of the Ekweremadu-led Constitution Review Committee to accommodate the proposed amendments by Sekibo.





 

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