By Ise-Oluwa Ige
Barring any last minute change, the Chief Judge of the Federal high court, Justice Dan Abutu is scheduled to deliver, today, a judgment on yet another constitutional suit demanding President Umaru Musa Yarâ€™Adua to step down on medical ground.The judgment, when handed down, will be the third, in the last 17 days, from the same judge on similar issue.President Yarâ€™Adua was flown out of Aso Rock, the power seat, in the wee hours of November 23, 2009 to King Faisal Specialist Hospital in Saudi Arabia for medical attention over an ailment diagnosed as acute pericarditis.
By today, he would have spent 67 days off-shore without handing over powers to his Vice, Jonathan Goodluck, as mandatorily required by the provisions of section 145 of the 1999 constitution whenever he is travelling out of the country for reasons including ill-health.
For the omission or the refusal to activate the provisions of section 145 of the 1999 constitution while jetting out of the country, Nigerians, in their thousands, had taken to the streets, two times, within the 67 days to demand his resignation from office or compliance with the constitutional provision. The mass rallies were organized by Save Nigeria Group led by Professor Wole Soyinka, Pastor Tunde Bakare, Mr femi Falana, amongst others.
The first rally held in Abuja, the Federal Capital Territory (FCT) while the second held in Lagos, the commercial nerve centre of Nigeria. For the two days, activities were paralysed in the two cities. They said the only honourable path available to President Yarâ€™Adua to tread is either to resign his office or step down temporarily for his Vice, Jonathan Goodluck.
But the wish of Nigerians who voted Yarâ€™Adua into power on April 21, 2007 did not matter to the ailing president. Not even the provisions of the sacred document called the 1999 Constitution,Â which he swore to uphold on May 29, 2007. His dispositions, before the mass rally, not to relinquish powers compelled few Nigerians to go to court. Lagos lawyer, Mr Femi Falana belled the cat while the umbrella organization of Nigerian lawyers followed his footstep. Four other separate suits on similar matter including the one instituted by radical human rights activist, Mr Bamidele Aturu on behalf of former Minority Leader of the House of Representatives, Hon Umar Farouk were also filed.
Each of them wanted the court to empower Vice President Jonathan Goodluck to begin to perform the executive functions of the president in the absence of the ailing president but in acting capacity as envisaged by section 145 of the 1999 constitution. But the Federation Attorney-General, Chief Mike Andoakaa (SAN) blasted those pushing for either the resignation of the president or invocation of section 145 of the 1999 constitution. He said Yarâ€™Adua needed not invoke the section 145 of the 1999 constitution before Jonathan could perform the functions of his office neither did the president needed be in Nigeria before he could govern the country.
He said that, under the law, the president could govern the country from anywhere in the world. He specifically argued that by virtue of section 5(1) and 148 (1) of the 1999 constitution, all the executive powers vested in the sitting president of the country were exercisable by his vice or and his ministers so far such powers were delegated to them.
He argued there was no vacuum in governance because Yarâ€™Adua was delegating his presidential powers even though reports said that the president was in most times inside life support machine.
But while hearing was going on in the first three lawsuits filed in court to challenge the refusal or omission of President Yarâ€™Adua to cede powers to his vice as envisaged by the constitution in spite his apparent inability to discharge the functions of his office, Andoakaa (SAN) vowed to spring surprise on the litigants.
And indeed, on January 8, 2010, a lawsuit was filed by one Christopher Onwueke, a pupil in the chambers of an Abuja based lawyer, Mr Amobi Nzelu. In a record four working days, the case was filed, written briefs were both exchanged and adopted while the Chief Judge of the Federal high court hearing other suits filed in the matter since last year delivered judgment on it.
Specifically, Justice Daniel Abutu, January 13, this year, delivered judgment on the youngest of the four separate suits filed in respect of the matter. The suit which sought interpretation of sections 5(1) and 148 (1) of the 1999 constitution was allegedly arranged by the Presidency to douse tension in the polity. Abutu J., in the judgment, said Vice President Jonathan Goodluck could exercise all the presidential functions of President Yarâ€™Adua pending when he would return from Saudi Arabia where he is receiving medical attention to resume his office.
But the judge said Jonathan would be performing the executive functions of the president in his capacity as vice president and not as acting president. Both the Attorney General of the Federation who was the sole defendant in the case and Mr Amobi Nzelu, theÂ lawyer who used the name of one of the pupils in his chambers to file the suit were happy with the pronouncement of the judge, thereby fuelling the rumour that indeed the lawsuit might have been arranged by the Presidency. It is trite that in all cases, there must be a winner and a loser. But in the instant case, both parties were winners and none was willing to appeal the judgment.
For the Attorney-General of the Federation, the judgment of Justice Abutu had satisfied the yearnings of Nigerians who had taken to the streets simply because they wanted Jonathan Goodluck to perform the functions of office of President Yarâ€™Adua. He said the verdict fixed all vacuum if at all any existed. â€œWith this judgment, Vice President Jonathan can perform all presidential functions. He can sign the budget. He can sign bill and forward bill to the National Assembly. He can also swear in certain high public office holder which function is vested in Mr president by the statute that created such office,â€ he had said.
But his colleagues in the legal profession and those in court challenging the refusal of President Yarâ€™Adua said Andoakaa was being economical with the truth. They said the judgment was a useless one because rather than solve problems, it had created more confusion. The judge was not only vilified on the pages of newspapers but a lawyer in one of the cases in court, Mr Bamidele Aturu,Â attacked him verbally in court.
In a satirical language, he told the judge that his judgment in the case would enter the Guinness Book of Record particularly because the case was filed, heard and determined in four working days while judgment was delivered on a day the case was scheduled for mention. In fact, radical Lagos lawyer, Mr Femi Falana who was the first person to go to court on the matter asked the judge to hands off his case for reason of likelihood of bias.
He alleged that even though the Christopherâ€™s case he decided was not predicated on section 145 of the 1999 constitution, Justice Abutu, like Vasco Dagama, had allegedly embarked on a suspicious and dangerous voyage of interpreting that section of the 1999 constitution in order to weaken his case.
The condemnation that trailed the judgment was so much that Abutu J on January 22, this year, treaded the path of caution while delivering judgment in another constitutional suit filed by Mr Bamidele Aturu on behalf of two eminent Nigerians including Mr Umar Farouk.Â The judge in the verdict granted one of the main prayers in the suit by annulling a supposed resolution passed by the Federal Executive Council (FEC) on December 2, 2009, giving President Yarâ€™Adua a clean bill of health and compelling the Executive Council of the Federation to pass a fresh one on his ability to continue governance within 14 days in view of his absence in the country on health ground for more than 60 days now.
Although the judgment was not as criticized as the first one but many experienced legal practitioners including a one time Chief Judge of Lagos State, Justice Omotunde Ilori said the 14 days ultimatum given was too much.Â If I were in the position of Justice Abutu, I would have given the same order but I would say that the Executive Council of the Federation should pass that resolution within 48 hours,â€ the retired judge said. Nevertheless, he said that the Federal Executive Council could not wriggle out of passing the necessary resolution to the effect that the president is temporarily incapable of discharging the functions of his office in view of the fact that he has been away from his duty post for more than 60 days and he is not yet back. He said the FEC has a good reason to pass the resolution since it is going to be subject to verification by a team of five medical experts comprising the personal physician of the president.
He said even if the president comes back to the country before the Executive Council of the Federation passes its resolution, he said that the Council would have a stronger reason to declare the president temporarily incapable of discharging the functions of his office if rumours that two life supporting machines had been imported into the country for use by the president, is true. He said in the interest of the nation and the health of the president, he said the wisest decision to take now is to step down temporarily pending when he would be medically fit to shoulder the heavy burden of his office.He said after all, he would not resign, meaning that he could take back his powers anytime he is fit.
Former President Olusegun Obasanjo had, few days ago, also shocked the world when he said that the only path of honour available for President Yarâ€™adua whom he assisted to power was to step down. He was said to have travelled to Saudi Arabia towards the end of December, 2009 to visit Yarâ€™Adua on his sick bed but that the ailing president could hardly recognize him let alone engage him in any meaningful discussion. Obasanjo who had shouldered the burden of the office, at least two times, in the history of Nigeria, perhaps knew that to govern a large country with massive population of 150 million would require one being in good health. Although Obasanjo had been roundly criticized for imposing ailing President Yarâ€™Adua on the nation, in the first instance, and the forum he used to pass across his message, many are now saying that Nigerians should ignore the messenger but consider the importance of the message he gave to Yarâ€™Adua. The leadership of the National Assembly which was not in the mood to heed the call
s for President Yarâ€™Adua to step down could no longer control the tension in its chambers.
As at last Tuesday, 74 senators had supported the motion asking the president to step down for his Vice, Jonathan Goodluck, in the interest of the nation and the health of the ailing president. The senators were of the view that the only path of honour left for the president was to transfer power with immediate effect even if he is back in the country pending when he would be fit to resume his office.
The umbrella organization of all Nigerian lawyersâ€”the Nigerian Bar Association (NBA), under the leadership of Mr Oluwarotimi Akeredolu (SAN) is demanding just that too. In a lawsuit instituted by the association which the Federation Attorney-General, Chief Mike Andoakaa (SAN) had attempted to stop but failed, NBA is asking the court to invoke the doctrine of necessity to declare that Vice President Jonathan Goodluck is entitled to perform, forthwith, the executive functions of President Yarâ€™Adua in view of the omission or and refusal by the ailing president to transmit a written declaration to the National Assembly as required by section 145 of the 1999 constitution. According to a former Attorney-General of the Federation and Minister of Justice, Chief Akinlolu Olujinmi (SAN) who is the lead counsel representing NBA in the case, he said in a saner clime, the only honourable path for a president to tread in a situation like this is to cede his powers to his vice, after all, presidency is a joint ticket.
He said, “the thrust of our case centres on section 145 of the 1999 constitution.Â Section 144 deals with permanent incapacity. That is not what we are talking about. â€œThere is a duty imposed on the President by section 145 of the 1999 constitution to send a letter to the President of the Senate and the Speaker of the House of Representatives whenever he is going on leave or whenever he is unable to discharge the functions of his office. That is basic. And as soon as that letter is written, without any further assurance, without anything being done by anybody, it enables the Vice President to assume the full plenitude of the executive functions of the President without any limitations until the President comes back and writes to say yes, I am back.
â€œThis happened in America. We copied our section 145 of the 1999 constitution from the American constitution and they have invoked it on three occasions there. In 1985 when President Ronald Reagan was going for surgery, he wrote to the President of their Senate and the Speaker of their House of Representatives that he was going for surgery. As soon as he wrote the letter, the then American Vice President, George Bush became the Acting President. And he acted for just eight hours! And as soon as he came back, he wrote to say I am back. And that put an end to the authourity of George Bush to act as president.
â€œIn 2002 when George Bush had become President, he was also going for surgery and Dick Cheney who was the Vice President, as soon as that letter was written, he became the acting president. And when President George Bush came back after recovering from the surgery he went for, just two hours, he wrote to say that I am back and as soon as he wrote the letter, the authourity of Cheney to act came to an end.Â In 2007, the same thing happened. You see, the transition there is so smooth. It doesnâ€™t raise any argument.
And there is no complication there,â€ he said. He added that even if the president is back in the country to convalesce, he said nobody is quarrelling with him but that the court should grant their request if Yarâ€™Aduaâ€™s inability to transmit a written declaration to the National Assembly was an omission or and failure to tread the path of honour. Lagos lawyer, Mr Femi Falana who has already appealed the controversial judgment of Justice Abutu in Christopherâ€™s case which was celebrated by both the plaintiff and the defendant is also insisting that the only path of honour left for Yarâ€™Adua is to step down pending when he would be fit to resume the duties of his office.
Falana who invoked section 295 (2) of the 1999 constitution wanted to destroy the legal substratum upon which Yarâ€™Aduaâ€™s continued stay in power rests.
He told Law and Human Rights Vanguard that even if he comes back to the country today as being rumoured, he said the news in town that the Presidency had imported two heavy life supporting machines for use by President Yarâ€™Adua worsened the case. He said if he were Yarâ€™Adua, he would just send the written declaration to the National Assembly and take his time to recuperate before coming home, after all, he would still remain the president if that is the title he does not want to lose. He advised Yarâ€™Adua to take the path of honour because the 1999 constitution which he swore to uphold does not envisage a sitting president who would be governing from life supporting machine.