VICE PRESIDENT GOODLUCK JONATHAN OF NIGERIA:
National Assembly Resolution and the Transfer of Power
By Dr. S. Okechukwu Mezu
WHAT THE CONSTITUTION SAYS:
Supposedly, it was the constitution of the Federal Republic of Nigeria that created the National Assembly (Senate and House of Representatives), the Executive Branch (President, Vice President and Federal Executive Council of the Federal Republic of Nigeria) and the electoral laws and the organ Independent National Election Commission (INEC) that conducted the elections that brought the present occupants to power. There were of course no elections in 2007 but a chronicle of shame and deceit Nigerian elections 2007… . This is not the subject of this article. The crucial question here is – does that National Assembly have the legal standing to transfer the way it did to the Vice President of Nigeria the powers of the President of the Federation? The answer is a decided NO. It is illegal, ultra vires, null, void and of no effect. The motion which was presented by Senator Folarin and seconded by Senator Ike Ekweremadu read thus:
“The Senate notes that the President, Commander-in-Chief of the Armed Forces of the Federation, His Excellency, Alhaji Umaru Yar’Adua, GCFR, left Nigeria for a medical attention in the Kingdom of Saudi Arabia on the 23rd November 2009.
“Notes that the entire country, particularly the Senate, prayed for his quick recovery and expected his early return from the said medical vacation.
“Notes that on the 12th of January 2010, His Excellency, President Umaru Yar’Adua, GCFR, transmitted to the whole world through the British Broadcasting Corporation (BBC), a declaration that he is receiving medical treatment in Saudi Arabia and consequently will be unable to discharge the functions of his office until his doctors certify him fit to return to Nigeria to assume his duties.
“Notes that the President of the Senate and the Speaker of the House of Representatives read the President’s declaration transmitted through the BBC and further published in several print media.
“Satisfied that, in the interest of our nation, Section 145 of the Constitution of the Federal Republic of Nigeria 1999 has been complied with by the said declaration.
“Do hereby resolve as follows:
1. That the Vice-President, His Excellency Dr. Goodluck Ebele Jonathan, GCON, shall henceforth discharge the functions of the office of the President, Commander-in-Chief of the Armed Forces of the federation as Acting President.
2. That the Vice-President shall cease to discharge the functions of the office 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 Representatives in writing that he has returned from his medical vacation.”
DISHONESTY BREEDS DISHONESTY
It is flabbergasting to read that when the Senate President put the question, it was “unanimously agreed to.” Are there no men or women of integrity in the Senate of the National Assembly? Rather than stabilize the polity, it has commenced another dance of death and destruction for Nigeria. What the Constitution states is clear, unequivocal, unambiguous and specific. Section 144 (1) of Nigeria’s constitution states:
The President or Vice-President shall cease to hold office, if—
(a) by a resolution passed by two-third majority of all members of the executive council of the Federation it is declared that the President or Vice-President is incapable of performing the functions of his 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 Senate and the Speaker of the House of Representatives.
Subsection (4) states that: The medical panel to which this section relates shall be appointed by the President of the Senate, and shall comprise five medical practitioners in Nigeria—
(a) one of whom shall be a personal physician of the holder of the office concerned; and
(b) four other medical practitioners who have in the opinion of the President of the Senate, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions.
Subsection (2) provides as follows: 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 Speaker of the House of Representatives shall be published in the Official Gazette of the Government of the Federation.
Subsection (3) states:
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.”
A two-third majority of all members of the executive council of the Federation has not declared that the President is incapable of performing the functions of his office; the declaration was not verified and no medical panel was set up as under sub-section (3); neither was there a notice signed by the President of the Senate and Speaker of the House of Representatives published in the Official Gazette of the Government of the Federation to that effect. What happened was not the creation of a legal precedent or legal antecedent but adventurism towards the edge of a great precipice. It is the executive council of the Federation made up of the Vice President and Ministers, as described in section 144 (5) that should initiate the process. But a government that comes into power through the subversion of the democratic electoral process will produce nothing but subversion of the constitution and the democratic process. Loyalty to self interest takes precedence over loyalty to the nation. Just as Ministers produced through and from a flawed process cannot be expected to stand by the truth so also Honorable members produced from a dishonorable undemocratic process cannot be expected to stand by the truth, live by the truth and vote on the basis of what is right not what is expedient.
DAYS OF INFAMY
It was most shocking and disappointing that not even a single member of the Executive Council of the Federation dissented when Judge Abutu ventured to force them to vote within two weeks in accordance with section 144 (1) (a) in the absence of a proper adherence to section 145 of the constitution and laws of the Federation. It is incongruous that the Senate of the Federation based its decision on the purported Yar’Adua interview supposedly with the BBC some four weeks earlier saying that he would resume duty when his doctors so certify. If they are to be believed, why did it take them four weeks to absorb the “import” of this unverified message to a foreign British organ, not even to the Vice President, President of the Senate, Speaker of the House of Representatives or even the Nigerian press. Members of the Federal Executive Council, without seeing the President, without speaking to him, without consulting with the President’s doctors “unanimously” voted and confirmed that the President was not incapacitated. Not even one voice dissented. The Dora Akunyili, post ipso facto rethink is a mea culpa and not a profile in courage. We certainly thank God that she reclaimed her integrity. She was a unique and a saving grace. In a reverse mode, the House of Representatives after maintaining a few days earlier that President Musa Yar’Adua was hale and hearty enough to continue in office joined their Senate Confreres-in-Ignominy to affirm that power should be transmitted to Vice President Goodluck Jonathan to act as President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria. Were these Honorable members oblivious of the BBC broadcast a few weeks earlier? Honor and integrity should be made of sterner stuff. The Executive Council of the Federation has failed the nation. Their crime, while unpardonable, is understandable because they are appointed by President Yar’Adua. The National Assembly has failed the nation. Their lapses, while inconceivable, are explainable because they were not elected by the people. At least one Judge, Justice Abutu of the Federal High Court, Abuja, in the Judiciary has failed the nation by doing the bidding of the the Attorney-General, Michael Aondoakaa who believes that the President can rule Nigeria from anywhere in the world even from a Hospital Intensive Care Unit (ICU) in Saudi Arabia. Justice Dan Abutu purported to direct the Vice-President to expressly take over power in the absence of the President pending his recovery and return to office contrary to the provisions of Section 145 of the 1999 constitution which only permits the Vice President to discharge the functions of President as Acting President only and only if the President transmits a letter in accordance with section 145 or in the alternative assume the functions of an Acting President as envisioned in section 145 or the functions of the President according to section 146 if and only if the President is absent by reason of death or resignation, impeachment, permanent incapacitation (in accordance to section 144) or finally by the President’s removal from office for any other reason in accordance to sections 143 and 144.
American and Nigerian Presidential Systems
Aondoakaa in his skewed syllogism compares the Nigerian Presidential system to the American system. He observed in a session with State House Correspondents that Nigeria practices a presidential system of government very identical to that of the US. He spoke about the provisions of the 25th Amendment to the US Constitution which is similar to the provisions of Section 145 of the 1999 Constitution of Nigeria. “Since the history of America, that provision has been used three times. The first person to assume office under the provision of the voluntary transfer of power was President G. Bush Senior. He became the first person in the history of America to be an acting president.” He mentioned the case on July 13, 1985 when President Ronald Regan went for colon cancer surgery, transmitted a letter to the Speaker of the House of Representatives and the President of the Senate intimating them of his incapacity leading to the Vice President George Bush acting as President from 11:28 a.m. to 7:22 p.m. of the same day. Following the end of the operation, Ronald Regan transmitted another letter and assumes power as President. Attorney General Aoandoakaa mentioned the case on June 29, 2002 when President George Bush Jr declared himself temporarily unable to discharge the power of the president and the duties of his office because he was undergoing surgery, which required sedation. President Bush Jr. followed the established protocol and Vice President Dick Cheney acted from 7:09 a.m. to 9:24 a.m. A similar routine was also followed from 7:16 a.m. to 9:21 a.m. on July 22, 2007 when President George Bush underwent another surgery which required sedation.
Attorney General Aondoakaa having given these laudable examples, in the worst sophistry known to the human mind, pretends not to see the necessity for a President (in an Intensive Care Unity (ICU) even if periodically since November 23, 2009, for a period of more than seventy days in far away Saudi Arabia) to do what is right, honorable and expedient, that is, to follow the law, before his departure, or during his stay in Saudi Arabia by writing to the National Assembly for the peaceful and quiet transfer of power to his Vice President for the smooth running of Government as enshrined in the Constitution of the Federal Republic of Nigeria. And if the President is unable or unwilling, the Attorney General Aondoakaa failed and/or neglected to advise the Executive Council of the Federation properly to do the right thing; and no member of the Executive Council until the revolt led by Lady Dora Akunyili saw it right and proper to show fidelity to the nation and its Constitution. We must here excuse the Vice President Goodluck Jonathan who cannot be an advocate and beneficiary of the advocacy at the same time.
JUDICIARY, LEGISLATURE AND SEPARATION OF POWER
So, when on January 22, 2010 Justice Dan Abutu, Chief Judge of the Federal High Court, ruled on suit No FHC/ABJ/654/2010 and directed the Executive Council of the Federation, to within 14 days, consider, pass and publicize a resolution in accordance with the provisions of Section 144 of the 1999 constitution declaring whether, having regard to the absence of the President from Nigeria on medical ground since the 23rd of November 2009, the President is incapable of discharging the functions of his office,” appeared to give legal backing to a cause pre-scripted by the Attorney General of the Federation. Aondoakaa was emboldened in his syllogism: “We cannot and no organ of government can take over the responsibilities of the court, which is supposed to be the law. If the court gives a decision, it is not open to anybody or organ of government to say that the court is wrong. The only position left is that if you are affected by the decision of the court, if you are not a party to the case; you apply for leave as an interested party to appeal against the decision of the court as an interested party. That decision gives the VP unencumbered power to act on his behalf and at least that is what we have so far and that should be the guiding consideration of all of us which could have been if we are obeying rule of law and not subjecting the decision of the court to undue political consideration, that could have ended the matter. On the part of the executive council we have accepted the decision of the court and as long as we know, no minister can disagree with the VP and no executive order issued by the VP can be questioned by any authority in the executive arm of government. That is the position.”
The court is not the law. The Law in this case is the Constitution of the Federal Republic of Nigeria. The court only interprets the law; it does not and should not make law. That is the duty of the National Assembly. The court cannot and should not confer on the Vice President and give him “unencumbered power to act” on the behalf of the President. The Federal Executive Council should therefore not accept the decision of the court as advocated by Aondoakaa.
In the United States which Aondoakaa sees as akin to the Nigerian system, under Section 3 of the 25th Amendment, the president may transfer the presidential powers and duties to the vice president, who then becomes acting president by transmitting a statement to the Speaker of the House and the president pro tempore of the Senate stating the reasons for the transfer. The president resumes the discharge of the presidential powers and duties when he transmits, to those two officials, a written declaration stating that resumption. This transfer of power occurred for reasons President Bush considered appropriate in 2002 and again in 2007 as rightly pointed out by Attorney General Aondoakaa for medical procedures that required sedation following which President Bush resumed power the same day.President Musa Yar’Adua failed and/or neglected to follow this protocol available in the Nigerian constitution.
US 25TH AMENDMENT AND SECTION 144 OF NIGERIA’S CONSTITUION
Also, under Section 4 of the 25th Amendment to the US Constitution, the vice president and a majority of the Cabinet (in Nigeria, Executive Council of the Federation) may transfer the presidential powers and duties from the president to the vice president once they transmit to the Speaker of the House and the president pro tempore of the Senate a statement declaring the president’s incapacity to discharge the presidential powers and duties. When this happens, the vice president assumes the presidential powers and duties as acting president but the president can declare that no such inability exists and resume the discharge of the presidential powers and duties. Where the vice president and the cabinet contest this claim, then the US Congress must meet within two days whether in session or not to examine and decide the merit of the conflicting claims. Here again the Executive Council of the Federation failed the Nigerian nation by culpably refusing to uphold the constitution they swore to defend. The National Assembly also failed Nigerians by refusing to carry out the duties assigned to them by the constitution. Both members of the Federal Executive Council and the National Assembly who aided and abetted this rape of the constitution should be tried for treason and if found guilty the two institutions should stand dissolved and individuals found to have conspired to aid and abet this rape of democracy should be banned from holding political office, if not for life, at least for a period of five years.
It is not too late to do the right and intelligent thing. The act of both Houses of the National Assembly passing separate motions authorizing the handing-over of power to the Vice-President Goodluck Jonathan and asking him to take over as “Acting President and the Commander-in-chief of the Nigeria Armed Forces” until such a time that Umaru Yar’Adua returns from medical treatment in Saudi Arabia and transmits a letter indicating that he is medically fit to resume his duties, has no place in law or the constitution of Nigeria. And who swears in Acting President Goodluck Jonathan? Is it the Chief Justice of the Federation who was sworn in before his time?
No one should hold responsible for the impasse the sick and incapacitated President Musa Yar’Adua. Former President Olusegun Obasanjo was not quite fair to President Yar’Adua when he opined in one of his frank outbursts: “If you take up an appointment, a job, elected, appointed, whatever it is, and then your health starts failing and you will not be able to deliver to satisfy yourself and satisfy the people who you are supposed to serve, then there is a path of honour you are supposed to take …. There is a path of honour and morality and if you don’t know that then you don’t know anything.” A human being in an intensive care unit cannot be held responsible for his actions or inactions. Neither is a human being under serious sedation aware of, or concerned with, issues of “honor” and “morality.”
MORALITY, HONOR AND JURISPRUDENCE
Demola Seriki, Minister of State, Interior, on the other hand was equally wrong when he postulates: “The Constitution of the Federal Republic of Nigeria which we operate is very clear on certain things. First, when people ask the National Assembly to act, they miss the point. The National Assembly can only act in line with this Constitution of Nigeria …. Then people say those in the Federal Executive Council, FEC, are not mindful of the feelings of Nigeria, that Section 144 of the Constitution of the Federal Republic of Nigeria has taken care of it. I ask those saying so, have they read it? If they have read it, do they understand it? That section, that is Section 144, convenient as it is for those quoting it, says the FEC should act in a situation of permanent incapacitation. My question is: Are we there yet? …. When people quote the Constitution, they should quote it well and not the way it suits their desires.”
Nigerians have not only read the Constitution of the Federal Republic of Nigeria, they understand it very well. Insanity no matter how temporary is still insanity. Incapacity, permanent or not, no matter its duration is incapacity within that limited time, space and spectrum. Sedation, even for a duration of a few hours (as in the case of President George Bush in the US) tolls Section 144 of the Nigerian Constitution. Absence of President Yar’Adua from November 23, 2009 and counting – incommunicado, unseen, unheard – cries to the highest heavens for action.
Those around President Yar’Adua who seek to use his name to cling to power should be held accountable. It is believed that only his wife and maybe two close aides have access to him. We wish him God’s blessing and speedy recovery. But he is not just a husband and father, he is a public figure, the father of the nation. His health is the health of the nation; his sickness portends a sick nation. The people and the nation have as much right as the immediate family to know the truth and nothing but the truth about his state of health. Nature abhors vacuum and there should be none in the Presidency but the right thing should be done.
STATE OF THE NATION AND THE WAY FORWARD
The purported letter from the National Assembly dated February 10, 2010, and addressed to the Chief Justice of Nigeria, Justice Ignatius Katsina-Alu, the Executive Council of the Federation (EXCOF) and the Acting President referenced as NASS/C5/R/05/III/92 from the Clerk of the National Assembly, Mr. Yemi Ogunyomi, to the Secretary to the Government of the Federation far from solving the debacle confounds it. Titled as ‘State Of The Nation And The Way Forward – National Assembly Resolutions, Of 9th, February, 2010’, it says:
“On Tuesday 9 February, 2010, the Senate and House of Representatives adopted Resolutions on the State of the Nation occasioned by the prolonged medical holidays of the President, Commander-in-Chief of the Armed Forces, His Excellency, Alhaji Umaru Yar’Adua in the Kingdom of Saudi Arabia.
“Members of the National Assembly noted that Nigerians fervently prayed for the speedy recovery of Mr. President and his early return to Nigeria.
“However, on 12 January 2010, Mr. President informed Nigerians through the British Broadcasting Corporation (BBC), that he was receiving medical treatment in Saudi Arabia, and would only return to Nigeria to resume his functions as President when his doctors so certify.
“Satisfied that this declaration by Mr. President amounts to substantial compliance with the provision of Section 145 of the Constitution of Nigeria 1999, the National Assembly resolved that:
(i) the Vice President, His Excellency Dr. Goodluck Ebele Jonathan, shall henceforth discharge the functions of the Office of the President, Commander-in-Chief of the Armed Forces of the Federation as Acting President; and
(ii) the Vice President shall cease to discharge the functions of the Office of the President when the President, Commander-in Chief of the Armed Forces of the Federation, transmits to the President of the Senate and the Speaker of the House of Representatives in writing, that he has returned from his medical vacation.
“Kindly convey these National Assembly Resolutions to His Excellency, Dr. Goodluck Ebele Jonathan, the Chief Justice of the Federation for his information, and Members of the Federal Executive Council for compliance.
“Find attached hereto, the Votes and Proceedings of the Senate and the House of Representatives in this regard, please.
“Accept the assurances of my highest regards for your office.”
The Resolution is null and void and of no effect with due regard to the provisions of the Nigerian Constitution and even if it is passed off as law of the National Assembly, who signs it to give it the due effect as prescribed by the Constitution – the incapacitated President or the Acting beneficiary of the incapacitation. The separation of powers does not allow the National Assembly or its Secretary to give directives to the Judiciary, or to the Executive arm of government, certainly not to the members of the Federal Executive Council just as the Secretary to the Government of the Federation cannot give directives for compliance to the staff of the National Assembly. “Acting” President Goodluck Ebere Jonathan should realize that the Jerusalem crowd that sang Hossana, Hossana on Sunday was the same crowd a short Friday later that shouted Crucifixi eum, crucifixi eum. Crucify Him! Crucify Him!
DR. S. OKECHUKWU MEZU, BA, MA, LL.B, Ph.D., Diplôme d’Etudes
Publisher, Black Academy Press, Inc., Baltimore, Maryland USA