Doctrine of necessity misapplied to right a wrong

2010-02-16
THE GUARDIAN Newspaper-Ibe Uwaleke



WHEN the absence from office of President Umaru Musa Yar'Adua due to medical reasons was becoming unbearable to Nigerians, the Nigerian Bar Association (NBA) stepped in and proceeded to a Federal High Court, Abuja, sitting before its Chief Judge, Justice Dan Abutu, to ask it to declare Goodluck Jonathan, then Vice President as Acting President, to fill the vacuum by applying the doctrine of necessity which is a judicial impetus to save Nigeria from precipice. But the court, in its own wisdom did not see any reason to invoke that doctrine at that time and, therefore, declined to apply it to the situation.

On February 9, 2010, the National Assembly after reviewing the situation and the pending doom, interpreted and applied the doctrine of necessity to end the crisis that was looming through an overwhelming voice resolution. But since this decision was taken by the National Assembly, many people particularly legal minds, have kicked against it, saying that the resolution does not have the force of law or stand the test of time. They also argued that it is absolutely unconstitutional and that the doctrine of necessity in which the resolution was hinged upon, is not a legislative doctrine.

What is the solution? In this interview granted to THE GUARDIAN'S IBE UWALEKE by a former Attorney General and Minister of Justice, Chief Akin Olujimi (SAN), who is also counsel to the NBA in the doctrine of necessity case, he says even though the application of the doctrine by National Assembly is absolutely unconstitutional and without any force of law, it is expedient to invoke it in the larger interest of the country.

Excerpts:

You represented the Nigerian Bar Association (NBA) in court where it asked a Federal High Court, Abuja, sitting before Justice Dan Abutu to apply the doctrine of necessity to resolve the prolonged Yar'Adua's absence and to declare Goodluck Jonathan as Acting President. But the court declined to apply it even though it is a judicial doctrine. Eventually, the National Assembly used it to save the situation. Do you approve of this arrangement?

As you said, I was counsel in the matter. But I can tell you now that there is an appeal still pending on the issue. The issue really was one, the NBA believed that the judge should adopt the doctrine of necessity. As beautifully put in the report of the Senate proceedings, that it does apply where there is a situation not contemplated by the constitution. The situation here was the omission of the President (Yar'Adua) to send a written declaration to the President of the Senate and Speaker of the House of Representatives. The constitution did not provide for when the President failed to send such declaration what should happen. That doctrine, which has been applied in several cases even by the Supreme Court of this land was referred to. Incidentally, the Attorney General (Michael Aondoakaa) (as he then was), agreed and argued in favour of the doctrine of necessity, though tried to withdraw it from the full implication of that doctrine, because according to him, once the Vice President was able to perform the functions delegated to him, that to him, was within the doctrine of necessity.

But it goes beyond that. You see, with that doctrine, just as the Senate had done, the Vice President should step into the shoes of the President as acting President. So the trial court ought to have given effect to that doctrine. But, the court with due respect did not have a proper grasp of the doctrine, even when it was properly explained with a citation of the Supreme Court's decision to back it up. But the Senate has done it. Even though there are issues taken, it is not really given to the Senate to do it. It is for the court to invoke that doctrine not for the lawmakers to apply it. The lawmakers were trying to find a way of saving the situation where we had no President for close to three months and they were asking questions, what should we do? The interest of a larger majority of the people prevailed on the National Assembly to take the decision it took.

Are you aware that many legal minds have kicked against the resolution of National Assembly, saying that it has no force of law?

Resolutions of the National Assembly have no force of law. The lawmakers usually pass resolutions and send them to the Executive. The Executive is not even bound to implement these resolutions. But they can guide the President for whatever actions he is taking. So, the resolutions have no backing of the law. But we should not lose sight of the fact that the situation that the National Assembly has to catch up with was necessary in the interest of this country.

You are happy with that resolution or are you not?

Well yes, to the extent that it was meant to solve a crisis politically. But constitutionally it is wrong, absolutely wrong, because Section 145 of the Constitution is clear on what should be done. When there is any dispute between two persons or among people on the interpretation of a provision of the constitution, it is for the court to resolve and resolve it properly.

If the court that is supposed to interpret provisions of the constitution declined to do so only for the NASS to interpret and apply them, don't you think the court has failed in its constitutional responsibility?

Yes, that is the point we are making. When you see things like this happening, the tendency or urge to criticise the Judiciary is always there because it looks rather strange. The reason is that if you believe the courts are the appropriate places to resolve such questions, and the courts do otherwise, then you will start suspecting. There is this thing we know as influence on judgments written without being made open to the people. This is what we call inarticulate major premises. By this, only the judge will know what has influenced his decisions before they are given.

Now, you have gone on appeal on the NBA matter asking that the doctrine of necessity be applied by the court. If the appellate court agrees with the NBA, will that be confirming the Senate's resolution or overthrowing it?

No! No! No. If the court agrees with us, it only legalises the lawmakers' action.

What of the other lawyers and some lawmakers who are threatening to challenge the National Assembly's resolution in court? If they succeed to convince the court to agree with their position that the resolution has no force of law, don't you think the country will return to the starting point?

Well, when the National Assembly members sit, they take a decision. All members of the Assembly are bound by its resolution. Some members may oppose the resolution and lose out in a debate in the House. Losing out in a debate does not confer a member locus to go out of the House to sue it for its resolution.

The late Abraham Adesanya when he was in the Senate did so in the early 80s. He lost out in a debate in the Senate and went to the court. But the Supreme Court said, look, the fact that he was a party to the discussions in the Senate would not confer locus on him to challenge their resolution, which bound him as a member of the Senate. So the court threw out his case without considering its merits. Therefore, I see very little chance for some of the lawmakers who want to go to court now to challenge the National Assembly's resolution.

What of some arguments by people who say that the 1999 Constitution did not make any provision for an Acting President?

Specifically, Section 145 of the Constitution mentioned that whenever the President sent a written declaration that he is proceeding on vacation, the Vice President shall execute the functions of the office of the President as "Acting President". So it is there, clearly stated.

The resolution by the National Assembly did not give any time-frame on how long Jonathan can act. If President Yar'Adua fails to return to office till the end of this tenure, what happens?

What section 145 says is when that declaration is given and the President returns, he will write back to say I am back and I want to resume my duties. But your question is if he doesn't return, let us wait and see. If we reach that stage, the appropriate solution will be found for it. You cannot speculate if he will not return now. We only hope he will return.

Do you mean if he does not return, Nigerians will start another political debate on what to do with Jonathan?

Yes, it makes the polity very interesting (laughter).

 

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