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Yar’Adua: Former AG tackles Andoakaa

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

By I se Oluwa Ige
The constitutional suit maintained by the Nigerian Bar Association (NBA) against the Federal Government over the failure by President Umaru Musa Yar’Adua to activate the provisions of section 145 of the 1999 constitution when he was proceeding on medical leave 23 November 2009 to enable Jonathan Goodluck perform the presidential functions in acting capacity was heard on its merit last Thursday.

Former Attorney-General of the Federation and Minister of Justice, Chief Akinlolu Olujinmi (SAN) led a number of members of the inner bar to cancvass legal arguments on behalf of NBA in the case.

Olujinmi (SAN) was the chief law officer of the Federation during the regime of President Olusegun Obasanjo.
The incumbent Attorney-General of the Federation, Chief Michael Kaase Andoakaa (SAN) led the Federal Government’s legal team to canvass arguments in court over why Jonathan Goodluck would not act as president no matter how long President Yar’Adua stays in Saudi Arabia for treatment and recuperation.

As soon as the two lead counsel stepped out of the court room, newsmen gathered round them to ask for explanations over their written briefs.

It was Andoakaa (SAN) who first spoke but in a low voice.

He answered about three questions and moved.  Then Chief Olujinmi’s (SAN) turn.
He summarised the case of NBA and distinguished the association’s case from other similar suits on-going.
Excerpt of the chat.

How will you react to the issue of section 144 of the 1999 constitution which the Attorney-General of the Federation just brought into the case of NBA during adoption of briefs?

A: The thrust of our case centres on section 145 of the 1999 constitution.  Section 144 deals with permanent incapacity. That is not what we are talking about. There 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. This 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.

In 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.

In 2007, the same thing happened. You see, the transition there is so smooth. It doesn’t raise any argument. And there is no complication there.

What specific reliefs are you asking for now?

A: We are praying the court to hold that there is a duty under section 145 on the President to write a letter to the National Assembly whenever he is going on vacation or whatever. When he left the country on November 23, 2009, he did not write that letter in accordance with the provision of the constitution. And that omission to write that letter means a failure to comply with the constitution.

Then the third relief we are seeking is that if there is a failure to write the letter, then the functions of the President cannot be in abeyance and the fourth one is that the Vice President is entitled to assume the authourity of the President under the doctrine of necessity and discharge the functions of president as Acting President. So those are the issues we are seeking.

And from the case they also made, they are conceding this doctrine of necessity. The meaning of it is what they didn’t quite gather when they relied on section 5 (1) and 148 (1) of the 1999 constitution. So, I said look, that is not the authourity for the doctrine. It is a common law doctrine that has been invoked in several cases and that our Supreme Court has taken time to expand that doctrine in 1979. So, there should be no problem whatsoever for his lordship to make a pronouncement based on that doctrine in favour of the Vice President.

Are you satisfied with the way his lordship shut you out from addressing the issue of section 144 smuggled into your case by the AGF, Chief Andoakaa (SAN) during hearing in your case?

A: I don’t want to say I was shut out. I made the point and I want to believe that his lordship saw it. The point is that the two sections: 144 and 145 of the 1999 constitution are mutually exclusive

But he didn’t take you down?

A: Yes, he may not have taken me down. It is not that every time the judge takes you down as a counsel when they themselves know that this thing is irrelevant. You look at it. Section 144 deals with permanent incapacity. I am not dealing with that. My case is very clear.  And his lordship will read through. So, if I didn’t say anything at all, he has a duty to look at the case I am making before him and use that to decide

For clarity purposes, are you asking the court to declare the Vice President Jonathan as Acting President on the principle of necessity?

No, no, no. We are not saying he should declare him Acting President. We are saying that he should declare that under the doctrine of necessity, even when there has been omission to write the letter which section 145 prescribes,  the Vice President is entitled to assume, under this doctrine, the functions of the president as acting president.

But the vice president is already performing the functions of President. Few days ago, he called out the military in Jos. Are you still saying there is vacuum?

A: No, no, no. we are not saying that there is a vacuum. You see, you have to read section 145 of the 1999 constitution to know exactly what we are saying. Powers can be delegated to the vice president and to the minister. That is not in dispute. If powers are delegated, you do it.

But when the Vice President is exercising delegated powers, he is not doing so as acting president. There is a clear difference between the two. A minister can say the road leading from Lokoja to Abuja should be done. He is not acting as president by that instruction.

Let me give you further instances to drive home this point. When the new Chief Justice of Nigeria (CJN) was to be sworn in recently, why didn’t the Vice President do it if he has powers to do it on his own as vice president? They said the supplementary budget was signed outside Nigeria.

Why didn’t the vice president do it? If that power has been delegated to him. But as acting president, he can do all these without looking up to anybody to give him powers to do it because the vice president has assumed the full authourity of the president for the duration of the absence of the president.

So calling out the military, may be they have delegated that power to him and he did because they said that certain functions were delegated to him. But that is not the issue we are dealing with.  There is no way anybody will know what power has been delegated. But we are dealing with what the constitution, a self executing provision requires. And once you do that, that is all. You see, there are over 150 million people in this country. You cant toy with it.

But the claim of the Federal Government from day one is that section 145 of the 1999 constitution is discretionary which a sitting president can activate or decide not to if he feels it is not necessary. What is your view?

A: No, it is not discretionary. You see when you are dealing with what affects the lives of more than 150million people, can you be talking of the whims and caprices of just an individual. The president, they say, can just get up and walk away without telling the leadership of the National Assembly or even the judiciary. We are dealing with a population of 150million people. Can that happen? Can you now say, oh it is a matter of discretion?

So are you saying that the provision of section 145 is a mandatory provision even with its wording?

A: Yes, it is a clearly mandatory provision and that is how it has been operated. You see, in America where we borrow this provision, it is mandatory that the president must write. And where you omit to write, shouldn’t the court now invoke the doctrine of necessity to ensure that the constitution works? We gave this constitution to ourselves. At least , that is the preamble of the constitution.

For the peace and order, now somebody omitted, it may be an excusable situation for not being able to write but it is not the issue here. In any case, one other interesting thing here is that if they are saying that oh, the vice president has been acting and that he can continue to perform the functions of the president, then what is their problem to simply concede to the case we have brought.

You do not think that their inability to say we agree absolutely with the plaintiff has some underlining factor. Because we are not saying and I made it clear in court that the president has ceased to occupy the office of the president.

That deals with permanent incapacity.  That is not our case

But I still think their complaint is the wordings, the language of section 145 which commences with a relative clause marker “whenever” and the absence of the words like “shall” and “must” in the provision giving the impression that it is discretionary. But assuming the constitution says: ‘he shall….,’ if he therefore goes without doing what he ought to do, then one can say there is an omission of what the president ought to do?

A: When you are interpreting the constitution, you must adopt an approach that will best preserve and promote the purpose of the constitution. And what is the purpose of our constitution? It is to promote the peace, order and good governance of 150million people. If you now look at that provision, you will now find that because arguments go on here and there, people have interest, that is why they are saying it is not mandatory that there is no word like shall.

You don’t have to use the word shall. When you look at the constitution and these issues were made clearly in our address in court. When the constitution intends a discretion, it says the president in his discretion. Check section 148.

It says the president in his discretion can assign or delegate functions. When it also uses the word may, it is also discretionary. But when it says “whenever” the president transmits to the senate. That is, whenever the president informs the senate leader that he is going on leave because he is the one who knows when he is going. So the constitution says whenever he is going on leave, then the vice president shall become the acting president. That is what it says.

There is nothing discretionary there. He knows when he is going. Nobody decides it for him. That is why the provision begins with whenever. Nobody knows when he is going. Nobody decides it for him. That is why the law says whenever he is going and informs the senate, then, the vice president shall become the acting president.

What do you say about the judgment of the court on this issue?

A: Well, the earlier judgment has nothing to do with our case. It is limited in scope to delegated functions. What the plaintiff came to court to do was to say when there is delegated functions, the vice president is entitled to perform those functions. That is all it says. Delegated functions.  That is what it says. And when he performs those functions, he is not doing so as acting president. There is a clear distinction.

An acting president requires nobody’s authourity or delegation to do anything. He becomes president in an acting capacity. And he can do just anything necessary for the good of the people.

But with the Justice Abutu judgment, can the vice president convene a meeting of the Council of State?

A: If the power is delegated by the president, yes. If the power is delegated but until that power is delegated, the vice president will be acting unconstitutionally by assuming the chairmanship. This is because in the constitution, the chairman of all these constitutional bodies is the president. So, the  vice president cannot say I want the meeting of council of state to hold tomorrow. Except he is acting as president and that is when the machinery of section 145 of the 1999 constitution is activated. And if the president delegates that powers, he can. Without delegation and the activation of section 145, the vice president will be acting illegally.

That means with this Abutu judgment, the vice president cannot do anything on his own?

A: He cannot. He cannot. In actual fact, the judgment is also limited to the powers he delegated before he went away on 23 November.

You mean he cannot delegate his powers from Saudi Arabia?

A: Section 145 says when you are going on vacation, the powers of your office shall be exercised by the vice president as acting president. That shows very clearly that you cannot carry these functions out. That is the meeting.

Then that means Jonathan cant convene the meeting of the Council of State?

A: No, no. don’t make a mistake. If before he went, that power had been delegated to him, he will be able to do it. It is only those powers delegated up till 23 November that he can exercise.

But reports said the man was wheeled out of Aso Rock on November 23. So, how could he have delegated  such powers?

A: But before 23 November, was he not functioning? I mean the president?

He was

A: Yes, between him and his vice, he would have delegated some functions. If the vice president is functioning as acting president, he can convene any of these meetings  and preside because he is acting president pursuant to section 145 of the 1999 constitution. The fact that he cannot do so now shows the limitation of the powers he is exercising. Those powers have not been delegated to him by anybody and that is why the council of state cannot meet.

Then does that mean that by Abutu judgment, the vice president is just a robot, that is, he cannot use his initiative except the ones delegated to him?

A: I have said so. There is no issue raised when you talk of delegated powers. Nobody is contesting that. I can give four, five, ten powers. Do this, do that. That is not the problem. But you cant go outside the powers delegated to you otherwise you will be seen as usurping the authourity not conferred on you by any law.

So you cannot expect the vice president to assume the full authourity of the president without compliance with section 145 of the constitution and without the court declaring that under the doctrine of necessity, the vice president is under a duty to assume the authourity of the president as acting president.

But don’t you think that this crisis we are experiencing would have been averted if you had used a different approach to seek this goal. I mean if you had approached the court by way of mandamus?

A: There are various approaches. And there are more than one case in court over this matter. Bamidele Aturu argued his own. If you were in court that day, the last time, you will see the angle he took. He argued section 144 and 146 . Falana is also arguing his own. It is also the same case. If we have section 145 , we are dealing with a situation that when we started , nobody had an idea of how long it would take for the president to come back. He is still there today. In Aturu’s case, he is already incapacitated as far as they are concerned. That he cant come home for almost two months. You need a clear determination pronouncing on each of these provisions. If, for instance, the court pronounces now, everybody will now know what the position of court is on this issue. A president in America was away for just two hours, yet he handed over. The vice president became acting president for just two hours. So, when that is pronounced by court, it becomes an established position. Nobody is confused as to what the president should do. There is something that must be commended in the various cases before the court. They are testing these various provisions of the constitution and it is for the good of all of us.

Do you agree with the AGF that the constitution should be amended?

A: I don’t agree with him at all. You don’t need any amendment over this matter. To address a clear provision. You see there is an omission to do what you are supposed to do. So, what are you amending. The American constitution may is about ten or fifteen pages. Yours is a thesis. Yet you still want more provisions. You know, you don’t put everything in the constitution because we are dealing withy mature men. This is the way the constitution should be approached,. If there is a duty imposed on anybody, he should perform for the good of everybody. It is the governor of Niger state that impresses me a lot. He calls himself the chief servant. That is what an elected officer should be. We elect you there to serve us. You don’t get there to become our master. No, every leader is a servant unto his people and that is the way it should be. And when the constitution puts a duty on you, it is not for your interest alone, it is for the interest of the 150 million people you are serving as president , as vice president, as governor, senate president,. Speaker or whatever position you hold. In the public service. You are there to serve people and that isd how it should be

Our case against NBA— Andoakaa

Q: What is your position in court sir?

A: My argument in court is that they have no case.

Q: In the other case by Christopher and decided last week, you never challenged the locus standi of the plaintiff. Why are you challenging it here?

A: That case of Christopher is not on all fours with this. In this case, they are asking the court to declare the vice president as Acting pPresident.

Q: Why did you say they have no case?

A: It is because the court has no power to grant such request. The court cannot make the declarations they are asking for. The court has no such powers. That can only be invoked when the letter is transmitted.

Q: Are you still saying that the powers to transmit is discretionary?

A: It is discretionary. There is no doubt about it.

They themselves admitted that. I didn’t even rely on my affidavit, I relied on their affidavit and further affidavit and in paragraph 19 and 20, they showed the letters the President of America wrote. So they have to bring the letter our own president wrote.

They have to bring the letter that Mr President wrote transmitting to the national assembly that he is on vacation.

They themselves acknowledged that that there was no letter. But one interesting things about that document they filed is that it stated that the time the president sent those letters, it was never revealed to anybody for security purposes.

It is on the document they filed. You can get a copy of the document. None of those transfer of powers lasted up to a day. The highest was four hours. And it is never revealed to anybody. It is only when the president takes back his power that they announced. That is the document they filed, and it is not going to help them. And for security reasons, it is never revealed to anybody that the president has written. That is what happens in America. It is only when the president takes his powers back that he announces that at a point he gave his powers to his vice.


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