Legal implication of National Assembly's resolution on Jonathan as acting president

2010-02-16
THE GUARDIAN Newspaper


FEBRUARY 9, 2010, will remain a landmark and remarkable day in the Nigerian Constitutional and Democratic sojourn. The National Assembly Consisting of the Senate and House of Representative each passed a resolution to the effect that the Vice President, His Excellency Dr. Goodluck Ebele Jonathan, (GCON) shall henceforth discharge the function of the office of the President, Commander - in-Chief of the Armed Forces of the Federation as Acting President and that the Vice President shall cease to discharge the function of the President when the President pursuant to Section 145 of the Constitution of the Federal Republic of Nigeria, 1999, transmits to the President of the Senate and the Speaker of the House of the Representative in writing that he has returned from the medical vacation.

The legal and, political brouhaha provoked by the resolution has been both overwhelming and hilarious with few cynicisms. It is clear that politically it has removed Nigerians from the logjam, legal and political quagmire that has engulfed it since November 23, 2009. While some have argued that the resolution is illegal and has no binding force of law others have argued otherwise. This is the narrow compass of this discourse.

As a general rule the Federal Republic of Nigeria shall not be governed nor any person or group of persons take charge of the governance of Nigeria or any part thereto except in accordance with the provision of the Constitution. This is the provision of Section 1 (3) of the Constitution of the Federal Republic of Nigeria 1999. It means we all must be governed by the provision of the Constitution. The legislative arm of Government derives its function from section 4 of the Constitution.

All the subsections in section 4 talks about making laws. Resolution of the National Assembly is not included under section 4 of the Constitution of the Federal Republic of Nigeria. Can we then say that resolution is no Law? What is a Resolution? Black Law defines resolution as a "formal expression of opinion, intention or decision by an official body or assembly especially a legislative."

In parliamentary jurisprudence there are two types of resolutions. Joint resolution and concurrent resolution and all have different legal effects. A joint resolution has been define as "a legislative resolution passed by both houses." It has the force of law subject to executive veto.

Concurrent resolution is a resolution passed by one house and agreed to by the other. Concurrent resolution has no force of law but a joint resolution has the force of law. What we have on hand is each chamber passing a separate resolution on its own but on same subject mater arriving at the same resolution. It qualifies for joint resolution since both Houses has passed it. They need not sit jointly to arrive at the joint resolution.

Therefore the resolution by both Houses on 9th February 2010 has the force of law. It qualifies as joint resolution. The decision making power of the National Assembly can be gleaned from some provisions of the Constitution. Let us take the example in Section 50(2)(c) of the Constitution which talks of the Resolution" in relation to vacation of office of the President, Deputy President of the Senate or Speaker or Deputy Speaker of the House of

Representative, if he is removed from office by a resolution. For ease of understanding section 50 (2)(c) of the Constitution provides:

"The President or Deputy President of the Senate or the Speaker of the House of Representatives shall vacate his office

(c)If he is removed from office by a resolution of the Senate or of the House of Representatives, as the case may be, by the votes of not less that two-thirds majority of the members of that House."

From the above "a resolution" therefore has a binding force once the required votes have been obtained. Section 56(1) of the Constitution provides the voting pattern in arriving at any

"decision." Section 56(1) of the Constitution provides: "Except as otherwise provided by this Constitution, any question proposed for decision in the Senate or the House of Representatives

shall be determined by the required majority of

the members present and voting; and the person presiding shall cast a vote whenever necessary to avoid an equality of votes but shall not vote in any other case. "

Decision has been defined legally to mean a determination arrived at after consideration of facts. Therefore the combined effect of the foregoing demonstrates that there is a decision of the National Assembly. Now this decision is in relation to section 144(1) and 145(1) of the Constitution. Section 144 states:

"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 his office. "

Section 145 states: "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. "

I am restricting myself to simply the issue of the resolution and its legal effect and not the tedious conundrum of the interpretation of Sections 144 and 145 of the 1999 Constitution.

Suffice it to say in conclusion that in any case it is a cardinal principle of statutory interpretation that where words in a statute if given their ordinary and literal meaning will lead to absurdity or defeat the intention of the Law markers, such literal interpretation will not be followed.

This is the golden rule established as far back as in 1836 in England in Beck v. Smith and followed by Nigerian counts in other decisions. It is the dex ex machina of the literal interpretation, which prohibit manifest absurdity. In 1967, the Nigerian Supreme Court faced with the dilemma of giving a literal interpretation to the provision of both an Edict and a Decree that will produce manifest absurdity opted for the golden rule. That was the case of COUNCIL OF THE UNIVERSITY OF IBADAN V. ADEMOLEKUN (1967) 1 ALL NLR 213. This is the modern day purposive interpretation of statutes.The doctrine of necessity was invoked by the Supreme Court in

LAKANMI Ei ORS v. A-G WEST Ei ORS. (1971) UILR VOL. 1.

Though the case was severally criticized among others as sitting on a banana peal, which fell easily with the slightest touch of Military Decree yet the concept of doctrine of necessity remain intact. It cannot be over looked having regard to the social, political, economic nature of the time.

Dr Izinyon (SAN) wrote from Abuja.

 

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