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The danger in limited delegation

By Tony Momoh
IT is very embarrassing indeed if and when a public officer articulates a position that is not grounded on set rules and procedures. That public officer ends up having what we call a bad press. The tragic outcome is that one with a bad press leaves behind a record that is distorted even if otherwise credible.

The one who has been cutting this image for himself because of his actions or acts credited to him is our dear Michael  Aondoakaa. He is our attorney-general and minister of justice. And that is the problem because he is caught between two volcanic political mountains, one as a minister and the other as a chief law officer of the land.

Whenever he speaks, he is seen to be mouthing what the Constitution says, what the laws of the land provide. Unfortunately, what the Constitution says and what the laws provide are, in many cases, clear enough for the ordinary man to understand.

But, without considering the blot of a bad press in the career record of a public officer, our minister of justice has been unduly controversial in pontificating on provisions of our Constitution, and this has exposed him to comments that should not be associated with one who knows his job and how to do it. Incidents to ground this case are legion – what they say he said about the office of chief justice; his claim that the president can rule from any where; the power he seems to be exercising to tell who can do the work of the president!

Even earlier in his tenure, he had made claims on the reporting line of the EFCC, the conditions the governor of the Central Bank must meet before he re-denominates the naira; and when INEC can give a certificate of election to a candidate who has been declared winner in an election! And in each of the pronouncements, there were clear constitutional and legal provisions to take our chief law officer on.

We shall look at only the latest. On Wednesday, December 23, I read two newspapers that cannot be said to be flippant in reporting the news or uninformed in accessing the goings on in government.  The Peoples Daily, published in Abuja, said, in a front page headline: “To fill power vacuum as a result of President Yar’Adua’s illness, Aondoakaa asks Goodluck to act for President.”

The Daily Independent said, “Aondoakaa writes Jonathan to function as President; Advises VP to Sign 2009 Supplementary Bill; Says CJ, Appeal Court president need no formal swearing in. A day later, the attorney general denied that any such letter was written. I do not want to be part of debating the existence or otherwise of so-called Fifth Columnists.

I discuss this matter on the ground that it is a possible step a desperate situation may demand. And we must warn that such a step will be unconstitutional and will establish precedents that may well ignore the clear provisions of the Constitution that any public officer must take an oath of allegiance and an oath of office before assuming office.

So, if the chief justice of the federation and the president of the Court of Appeal have been cleared to assume office on the recommendation of the president, how can they assume such office without being sworn, without taking the judicial oath?  And who, outside the clear division of powers of the Federal Republic of Nigeria, can perform certain functions across the board except the heads of the organs?

The Legislative powers are exercisable by the National Assembly at the centre and the state assemblies in the states, headed by the president of the Senate and the speaker of the House of Assembly at the centre; and the speaker of the House of Assembly in the State. The Executive powers are exercised by the president at the centre and the governor at the state level.

And judicial powers are exercised by the Supreme Court and other listed courts, but the judiciary is headed by the chief justice of Nigeria. Three key officers are listed to head the three arms of government and how they assume office is settled.

The president of Nigeria must be sworn in before he assumes office of president, and the oath is administered  by the chief justice of Nigeria or whoever is acting chief justice. The chief justice of Nigeria cannot assume office unless and until he has been sworn in and that oath is administered by the president of Nigeria or someone who is acting president of Nigeria.

This takes us to the purported letter written by our chief law officer. The quotes by the newspapers reveal naked unconstitutionality. I doubt that such a letter was written, but if it was, it is a clear product of a desperate mind in search of solutions outside clear guidelines that produce the answers sought. The Constitution is a composite document that must be read together.

It is structured in such a way that you move from general provisions to details of rights and obligations. The powers of the federation are shared in part two of chapter one among the Legislature (sec 4); the Executive (sec 5), and the Judiciary (sec 6).

The section referred to in the letter purportedly written by the minister of Justice is section 5 which tells us who will exercise the executive powers of the federation. It is the president and he can exercise all the powers directly or ask the vice president or any of his ministers or other official to do so in any area he may allocate. Such exercise is clearly said to be subject to the provisions of the Constitution.

In Chapter 6 of the Constitution, the office of president is established.  He is the head of state.  He is the chief executive of the federation.

He is the commander-in-chief of the Armed Forces of the Federation.  Once upon a time, in the First Republic, this power was shared between the president as head of state and commander in chief of the armed forces, and the prime minister as chief executive of the Federation. It was the problem we had when elections were heavily compromised in 1964 and President Nnamdi Azikiwe and Prime minister Abubakar Tafawa Balewa disagreed on the outcome of the elections that there was military intervention in 1966.

Having learnt lessons of undue spread of power,  we anchored all the powers of the federation and their execution in one person, the president. So at any time, there can be only one president, never two, and the delegation of powers outside the  provisions of section 148(1) which is the same in all respects with section 5 and in fact overshadows it, is a twisting of clear provisions which no one can accept.

Let’s not deceive ourselves, twist and turn as we may, there is only one way out of our situation today. The President is ill. He is in hospital. Even if he leaves hospital today, he will need time, a hell lot of time, to recuperate and be fit enough to assume office and cope with daily demands on  the chief executive of the federation, the commander in chief of the armed forces, and the head of state performing all ceremonial functions that kept Zik busy in the First Republic.

The clear way out is for the president to divert attention from himself by writing to the president of the Senate and the speaker of the House – obviously if he can talk and take decisions as we are told he can from his hospital bed – saying he is away on health grounds and he cannot now cope with the rigour of office. The vice president will then be sworn in by the chief justice of Nigeria before he quits office on December 31.

The vice president then becomes acting president. In that capacity, he can swear in our new chief justice of Nigeria. As acting president, there will be no acting vice president, so those wanting to hop on that seat will have to stay away. The good news about the provision of section 145 providing for acting president is that the only limit to the acting is the tenure of the president who is on leave.

But as acting president, Dr Goodluck Jonathan becomes the acting head of state of the federation, the acting chief executive of the federation and the acting commander in chief of the Armed Forces of Nigeria. All the buck then stops on his table until the president returns and communicates to the bodies concerned that he is back from hospital and is ready to assume office. Chikena.


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