Whither Yar'Adua's Rule of Law Campaign?

THIS DAY Newspaper-Davidson Iriekpen

When Yar’Adua made a global pronouncement on his determination to uphold the principle of rule of law, very few Nigerians believed him. The cynicism stemmed from former President Olusegun Obasanjo’s perceived disdain for rule of law.
While pledging his commitment to rule of law upon his inauguration, Yar’Adua enumerated the degree of damage that violation of the principles of rule of law had done to the society.

“As a nation, one of our greatest challenges has been the evolvement of a culture of disrespect for the rule of law, unbridled corruption, endemic crime, violence, infrastructure deficit and a general malaise in the polity. All this constituted a direct manifestation of disrespect for law and order. This background has informed our administration‘s total and absolute commitment to entrenching and enduring culture of unqualified respect for rule of law and constitutionality in the conduct of government business,” Yar’Adua stated.

For a nation traumatised by the contempt with which previous governments including those headed by Generals Sani Abacha and Ibrahim Babangida and later Obasanjo, treated the rule of law, this was good news to the ears. During their regimes, Abacha, Babangida and Obasanjo did not manifest their indifference to rule of law so early. It took a while before they revealed their identities to Nigerians. Particularly, under Obasanjo, the executive was interpreting the nation’s constitution and court judgments in manners suitable only to it.

What perhaps fuelled the skepticism that trailed Yar’Adua’s promise were the overriding powers ascribed to the executive by the constitution. Most poignant of them was the clause that places the implementation of the courts’ judgments at the whims and caprices of the president whom by an executive order, could cause a stay of execution without recourse to the court.

While many Nigerians did not envisage the current stance of the Yar’Adua administration since his ascension as president, Yar’Adua had had to face different tests of political will. Undoubtedly, in the first 100 days of his administration, some unprecedented records were set which in turn set the tone for a new dawn in Nigeria’s judicial system and the rule of law. To kick-start the policy, no sooner was he sworn into the office than he ordered the enforcement of the Supreme Court judgement pronounced three years earlier, but disregarded by the Obasanjo regime, to release the confiscated N14 billion Lagos State local government funds.

Aside this laudable action, to the admiration of many Nigerians, the President and his deputy, Dr. Goodluck Jonathan, publicly declared their assets in line with the laws of the 1999 constitution. Another pointer to the administration's seeming commitment to the operations of rule of law was demonstrated with the reinstatement of Justice Chrissiantus Senlog, who was sacked in 2004 for his reported complicity in the Akwa Ibom State governorship election in 2003.

The immediate reinstatement of Governor Peter Obi of Anambra State and Governor Rotimi Amaechi of Rivers State after Supreme Court judgements, further demonstrated the prime respect of the Yar'Adua administration for the rule of law. In all these matters, the President immediately ordered that the Supreme Court order be carried out by the Inspector General of Police.

To many Nigerians, this was a marked departure from the days of Obasanjo under whose government, such landmark judgments by the apex court could have been consigned to the dust bin of history or interpreted otherwise by his legal apparatchiks. In the administration of Obasanjo, further interpretation of the court’s undisputed pronouncements would have been sought in the most bizarre ways to seek political capital.

But it appears that all these earlier gains seem to have evaporated with Yar’Adua’s refusal to authorise Jonathan to act on his behalf by transmitting a letter to the National Assembly as stipulated in Section 145 of the Constitution, before being flown out of the country to King Faisal Specialist Hospital and Research Centre in Jeddah, Saudi Arabia on November 23, 2009 for treatment.

A report by his personal physician said he was diagnosed with acute pericarditis, an inflammation of the membrane covering the heart. His absence from the country and failure to properly hand over to Jonathan in line with Section 145 of the 1999 Constitution is alleged to be creating a vacuum and holding back the implementation of some vital policy decisions in the country. In the last couple of days, several groups as well as the local media have been very vocal in the calls for a handover of power to the vice president while the president recuperates.

Recently, the Financial Times in an editorial titled: "Nigerian Vacuum: Yar'Adua Needs to Avert a Constitutional Crisis," stated thus:"When Umar Abdulmutallab, a well to do Nigerian gone astray, attempted to blow up an airliner over Detroit, Barack Obama, the US President, had no counterpart to engage with. Even before Yar'Adua was in hospital, the country had been poorly represented on the world stage."

As if that observation was not damaging enough, matters got to a head recently, when the 2009 Supplementary Appropriation recently passed by the two chambers of the National Assembly was taken to Yar’Adua on his sick bed in Jeddah for endorsement. Another instance was when the out-going Chief Justice of Nigeria, Justice Idirs Kutigi had to swear-in his successor, Justice Katsina-Alu. These functions and many others, could have been performed by Jonathan had Yar’Adua complied with the provisions of Section 145 of the Constitution by properly handing over power to him.

The country’s 1999 Constitution has ample provisions to take care of such contingencies. When George W. Bush of the United States of America (USA), whose constitution Nigeria adopted, proceeded for an operation, he handed over to his deputy, Dick Cheney. A similar scenario played out when another US President Ronald Reagan was shot.

The question of who was in charge at that momentous period was then raised and it was clear in America that in the absence of the president, the vice president acted. So, it is therefore not strange in better organised political environments that such a precedent must continue. But in Nigeria, this is not the case as the Constitution is misinterpreted and deliberately misapplied by individuals whose motives are anything other than altruistic.

Today, there are incontrovertible provisions that in the absence of the president, Sections 144 and 145 of the 1999 Constitution have provisions to take charge of such situations, either by way of a resolution of the Federal Executive Council, setting up a medical board to determine the capacity or incapacitation of the president as the case may be and the Vice President may now be asked to take over. In the alternative, the constitution also states that if he comprehends his incapacitation or he is going on leave or for whatever reasons, he has to communicate in writing to the Senate and set in motion the process of formally handing over power to the vice president.

But allegedly standing the constitution on its head, the Attorney-General of the Federation and Minister of Justice, Mr. Michael Aondoakaa (SAN), informed Nigerians that the President could effectively perform his official functions without actually being in the country, saying the law does not specify that he should always be around to discharge the duties of his office.

The minister who was apparently relying on the provisions of the Section (5(1)) of the 1999 Constitution, noted that what the President needed to do in some of the urgent national issues was to give instructions wherever he was to his ministers who according to him, will carry out the executive functions on his behalf. Under this section marked “executive powers,” it is not in doubt that the President can exercise the powers vested in 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. But many observers have argued that it is not applicable now that the president is temporarily indisposed.

Specifically, the section states that: “Subject to the provisions of this constitution, the executive powers of the federation (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 the which the National assembly has, for the time being power to make laws.”

While Section 145 of the Constitution states that: “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.”Section 144 of the 1999 Constitution requires that presidential disability shall be established if "by a resolution passed by two-thirds majority of all the ministers in the Federal Executive Council, it is declared that he is incapable of discharging the functions of the office and the declaration is verified by a panel of five medical practitioners in Nigeria, one of whom shall be the personal physician of the President and four other practitioners who have attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted." But unfortunately, none of these sections have been complied with as Yar’Adua continues his absenteeism from office.

The controversy generated over the president’s long absence from the country was further complicated when Justice Dan Abutu, in a short judgment delivered in the suit instituted by one Mr. Christopher Onwukwe, effectively foreclosed the chances of Jonathan being sworn in as acting president, irrespective of how long Yar’Adua stays out of the country and away from office on health grounds.

The judge also held that the vice president could not become the acting president, "he can only carry out the functions of the president in his absence," in line with Section 5(1) of the 1999 Constitution. The judge held that even before the suit "the Vice President has been carrying out the duties of the president as allowed by the constitution.


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