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Andoakaa hails judgment

By Ise-Oluwa Ige

ABUJA—The Attorney-General of the Federation, Chief Michael Andoakaa (SAN) Federal has hailed the high court judgment, sitting in Abuja yesterday. The judgment ordered the Executive Council of the Federation (ECoF) to pass a resolution, within 14 days, on whether or not the continued absence of ailing President Umaru Musa Yar’Adua from his duty post since November 23, 2009 on account of grave ill-health does not amount to permanent incapacity to perform the functions of his office.

The Attorney-General of the Federation, Chief Michael Andoakaa (SAN), yesterday  said of the judgment thus:

“It is a good judgment. All the issues, six in number, brought by the plaintiffs, the court dismissed them.

“In the first place, the plaintiff asked the court to declare that the president is permanently incapacitated but the court refused it. The court said it has no jurisdiction. The power to so do is vested in the Executive Council of the Federation.

“They also said that by circumstantial evidence, the president has been away for a long time and that the court should, on the basis of that, declare him permanently incapacitated.

The court also refused and said that it has no such jurisdiction. The court said that the body that is actually empowered by the constitution that is the Executive Council of Federation has not met to consider whether the president is fit or unfit to rule the country.

“The court therefore directed that within 14 days from today the Executive Council of the Federation which is the body known to the constitution, all along we call it Federal Executive Council (FEC), should examine this in accordance with section 144 of the 1999 constitution and decide on that.

“The court also went further to say that the removal of president must follow the procedure as stated in section 144 on the grounds of permanent incapacity.

“The procedure is simple: The Executive Council of the Federation will decide whether the president is fit or unfit  or permanently incapacitated. If they decide that, yes, he is, in their opinion, then their resolution will be sent to the Senate President and then the Senate President will constitute the medical team of five medical experts.

Justice Andoakaa...There is a duty imposed on the President by section 145

“The five medical experts will be inclusive of Mr President’s physician and when they find that the president is permanently incapacitated, the report of the panel will be presented to the Speaker of the House and President of the Senate and they will now decide on whether to remove Mr president on the ground of permanent incapacity or not. And in that case, section 146 will now come to play and the president will be removed.

“And the other aspect of the judgment is that he wanted the court to declare that the vice president has not been performing the functions of office of the president in the absence of the president and the court said no.

“The court said the vice president has been carrying out all the functions of the president in his absence. The constitution itself said the president shall have consultation with ministers in running his government.

“But under section 144, the body vested with the responsibility of determining the president’s health, whether he is fit to rule or not is the Executive Council of the Federation. That body itself, if you see the earlier resolution, they said they have not considered it. They said there was no basis to consider section 144.

“Now the court has directed that it must be considered. So, they must rule otherwise on whether the president is fit or not. That is, if the president is permanently incapacitated or he is not permanently incapacitated.

‘We will however study the judgment. We will study the judgment. We will study the judgment and look at it to decide if we will appeal the judgment.

‘But what happened is that even with an appeal, if there is no stay, the judgment has to be complied with.

“An appeal does not operate as a stay of a judgment of the court. We will look at the judgment.

“We are law abiding people. We will send a copy of the judgment to the vice president. Then, the Executive Council of the Federation comprising the vice president and ministers will meet and look at it. We don’t see any problem there,” he added

The Judgment

The  Federal high court sitting in Abuja had ordered the Executive Council of the Federation (ECOF) to pass a resolution, within 14 days, on whether or not the continued absence of ailing President Umaru Musa Yar’Adua from his duty post since November 23, 2009 on account of  ill-health does not amount to permanent incapacity to perform the functions of his office.

The trial judge, Justice Dan Abutu gave the order while delivering judgment in a suit maintained by two prominent Nigerians including the Minority Leader of the House of Representatives during President Olusegun Obasanjo era, Hon Farouk Adamu Aliyu and a lawyer, Mr Hussaini Gabbas, asking him to declare President Umaru Musa Yar’Adua unfit to continue with the functions of his office on medical ground.

That was moment after he rejected a December 2, 2009 resolution passed by the Federal Executive Council (FEC) to the effect that President Yar’Adua was fit to continue governance without seeing him or have access to any medical report from either his personal physician, Dr Salisu Banye, or medical expert.

Justice Dan Abutu, in the judgment yesterday, said that given the wordings of the alleged resolution passed by the FEC, he said as far as he was concerned, the Executive Council of the Federation was yet to perform the duties imposed on it by section 144 (1) (a) of the 1999 constitution.

He said this was because the Executive Council of the Federation never considered the health status of the president as commanded by section 144 (1) (a) before passing the said resolution.

The said December 2, 2009 resolution which the court said had failed every test of a valid document reads:

“The Federal Executive Council at its EX(2009) 45th Meeting held today, Wednesday, 2nd December, 2009, took notice of calls by some people for the invocation of the provisions of section 144 of the 1999 Constitution of the Federal Republic Nigeria for Mr President to resign his appointment on the ground of ill-health. “Council having reviewed all the facts on ground, unanimously resolved that there is no basis for the invocation of provisions of section 144 of the Constitution for the reason that the President has not been found incapable of discharging his functions. “Council wishes to inform all Nigerians that all organs of Government are functioning and that Government will continue to deliver.

“The Vice President reminded Ministers to defend Governments position appropriately whenever the opportunity arose,” it added

The trial high court judge, Justice Dan Abutu also declared, yesterday, as illegal the Federal Executive Council (FEC) that had sat on a number of state matters since the beginning of the Fourth Republic in the country.

The judge said that the body known to the constitution is the Executive Council of the Federation (ECOF) and not the Federal Executive Council (FEC).

He said the body that should pass the fresh resolution on President Umaru Musa Yar’Adua’s health must be the Executive Council of the Federation (EXCOF) which the 1999 constitution recognized and not the Federal Executive Council (FEC) that is unknown to the constitution.

The Executive Council of the Federation is indeed a non-corporate statutory body created by section 144 (5) of the 1999 constitution with statutory powers under section 144  (1) (a) of the same constitution to initiate the removal process of a sitting president when it is clear that he is permanently incapable to discharge the functions of his office.

But the trial judge yesterday declined an invitation by former Minority Leader in the House of Representatives , Umar Farouk, to declare President Umaru Musa Yar’Adua permanently incapacitated to discharge the functions of his office in view of the circumstantial evidence to the effect that the president abandoned his duty post for more than two months now on the account of serious ill-health.

He specifically held that he had no such jurisdiction.

Justice Abutu said that section 144 of the 1999 constitution specifically stated how a sitting president that suffers from infirmity of either the body or the mind could be removed.

He said the judiciary had no role to play in it.

The said section 144 of the 1999 constitution reads:

(1)    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 President or the Vice President is incapable of discharging 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 to the President of the senate and the Speaker of the House of Representatives

(2)    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 the Speaker of the House of Representatives shall be published in the Official gazette of the Government of the Federation

(3)    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

(4)    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 the 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 ofg the examination to  be conducted in accordance with the foregoing provisions

(5)    In this section, the reference to Executive Council of the Federation is a reference to the body of Ministers of the government of the Federation howsoever called, established by the President and charged with such responsibilities for the functions of government as the President may direct.

Similarly, the trial judge also yesterday refused an invitation to give an order compelling Vice President Jonathan Goodluck to begin the performance of the executive functions of the absent president.

He said he could not give such order because there was no evidence before him that Vice President Jonathan Goodluck was not performing the executive functions of the president.

The Federation Attorney-General of the Federation, Chief Michael Kaase Andoakaa (SAN) said he would send a copy of the judgment to the table of Vice President Goodluck Jonathan with immediate effect so that the Executive Council of the Federation would be able to comply with the ultimatum given it by the court.

He said that though he might appeal some aspect of the judgment but that the judgment would be complied with since appeal does not operate as stay of execution.

The lead counsel to the plaintiff yesterday, Mr Bamidele Aturu also hinted that he might appeal some aspects of the judgment not favourable to his client if he is so instructed but that the judgment was sound.

He however warned that the resolution to be passed by the Executive Council of the Federation must be publicized as contained in one of the prayers he sought from court.

He said that the Council must also set up a medical board comprisking the personal physician of the ailing president, all activities monitored by his clients,  to examine the status of health of the president before passing their resolution.

He said they would go to court to resist a situation whereby members of the Executive Council of the Federation would sit down in their meeting to say that President Yar’Adua is fit when the ailing president is not examined by medical experts.

Counsel review Judgment

Speaking with newsmen, both counsel reviewed the court’s judgment the way they understood it or and the way they wanted it interpreted.

According to the lead counsel to the plaintiffs, Mr Bamidele Aturu, he said yesterday of the judgment:

“The judgment of the court is very clear. It is unambiguous. As far as we are concerned even though there are some aspects of the judgment we might consider appealing against, but I must say that essentially, the judgment of the court represents victory for democracy in Nigeria today.

“It represents victory for those people who are interested in enforcing the constitution and I think it is a salute for certain individuals who have the courage to come out and say look, there are some constitutional crises in Nigeria and that some people are deliberately trampling upon the constitution and that they would stand out and stand up for justice and constitutionalism.

“They have stood up to be counted. I tell you, this judgment is going to redefine politics and the way politics is done in Nigeria.

‘Now the court did make it very categorical that the Executive Council of the Federation should within 14 days consider the question of the health of Mr President and pass a resolution to that effect.

“But I think we must make it very clear that the claim of the plaintiff before the court is that they should not only pass a resolution but that they should publicize this resolution.

“In other words, it would be a public matter. It is not a thing that some people will sit in their own offices and claim that they have passed a resolution.

“Now, the court made a very sound decision by saying that the Federal Executive Council is an illegal entity.

“It is a body that is unknown to our law. It is an unconstitutional body and I think that is also victory for our constitutionalism and democracy.

“We have a country where people who are lawyers have been organizing this nation under the aegis of an illegal contraption known as the Federal Executive Council. And I think this is a warning to the state government that they must begin to rename that meeting ..

“Having said that, under section 144, the executive council of the federation has no power or right to pass a resolution that Mr President is well or healthy.

“That function does not belong to the Executive Council of the federation. “What the section says is that it is only where they see that the president is not well or he is permanently incapable they can even publiscise or pass a resolution.

“They don’t have the powers to pass a resolution that he is well, that he he is healthy because they are not a medical team. They cant give a clean bill of health.

“So let the Attorney General of the Federation and the defendant not confuse the public by saying that since the court has given this judgment, then they will go and arrange a resolution that the president is healthy. “There is no such power.

“If they do that, we will challenge them. And the last point I want to make on this is that our client also will have to be present and available because this is a serious constitutional matter.

“We want to see physical medical evidence. It is not a thing that you will go and call the Secretary General of the Federation who is not a doctor, or a medical personnel to come and be briefing us about the health of the president.

“Nigeria is too important for any cabal or any group of people to toy with. We are standing on the platform of constitutionalism.

“We are saying the constitution must be obeyed. We are saying that section 144 must be obeyed and we are saying that they must obey it to the letter and we must salute the courage of the judge for finding a way to accommodate constitutionalism, decency, and I think good sense.

“We will however appeal the judgment,” he added.


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