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Yar’Adua : Aondoakaa flays NBA

*He must transfer powers, NBA insists

By Ise-Oluwa Ige

ABUJA— The Attorney-General of the Federation, Chief Michael Kaase Aondoakaa, SAN, yesterday described as annoying a request by the Nigerian Bar Association, NBA, asking the Abuja Federal high court to apply the doctrine of necessity to declare that Vice President, Goodluck Jonathan is forthwith entitled to perform the functions of President Yar’Adua in acting capacity.

He said as far as he was concerned, Jonathan would not perform presidential functions in an acting capacity because the condition precedent was never fulfilled by President Yar’Adua neither was there any reason for his (Yar’Adua) activation of the alleged discretionary provision of section 145 of the 1999 constitution.

But the NBA yesterday replied Aondoakaa that section 145 of the 1999 imposed a mandatory duty on President Yar’Adua to transfer powers to his vice since he is presently on medical vacation and that the lacuna that would have been created owing to his omission would be filled upon the judicial application of the doctrine of necessity.

The umbrella association of lawyers in the country yesterday said it is indisputable that the president has powers under section 5(1) and 148 (1) of the 1999 constitution to delegate his presidential functions to his vice and ministers while on the shores of Nigeria but that whenever he is going away either on leave or when he is temporarily unable to discharge the functions of his office, it said he could not go away with the powers.

NBA said no one knows when Mr President would want to go on leave or when he would feel that he is temporarily unable to discharge the functions of his office but the section 145 says that whenever he is going away, he must transfer his powers.

It said the provision of section 145 was meant for the situation on ground.

It added that the section 145 of the 1999 constitution which is the subject of litigation before the high court was copied from the American constitution and that three American presidents had, in recent past, activated the provision while they were to go for surgeries, none of which exceeded four hours.

NBA faults Aondoakaa’s position

The NBA said Nigerian government being represented by Aondoakaa could not claim that it understood English language, the language used in constructing the provision of section 145 better than the English people whose presidents mandatorily transmitted written declarations to their National Assembly when they were unable to exercise the functions of their offices even for as short as two hours.

The NBA said apart from the word “vacation” that Nigerians added in their own constitution, it said the wordings of section 145 of the 1999 constitution were the same with section 3 of the American constitution where it was copied and being practiced.

“In 1995, when Ronald Reagan was the American President, he wrote a letter to the leadership of the upper and lower chambers of their National Assembly simply because he was going for a surgery. George Bush was the American Vice President at the time and following the transmission, he automatically became the Acting President. Bush acted as President for 8 hours!

“And when President Reagan recovered, he wrote a letter to the National Assembly and he took back his powers.
“In 2002, George Bush was the President of America. He also went to the hospital for surgery that would require his sedation.

“Before he went, he also transmitted the written declaration to the leadership of the National Assembly to the effect that he would be unable to perform the functions of his office and his Vice, Dick Cheney automatically became the Acting President.

“It is interesting that the surgery lasted less than two hours. As soon as he recovered, he wrote back to the National Assembly and he took back his presidential powers. His Vice, Dick Cheney acted for just two hours!

“Also, in 2005, George Bush was the President of America. He also went to the hospital and he wrote in compliance with the provision of section 3 of the American constitution which is in pari material with the section 145 of the 1999 constitution and his Vice, Chendey also acted until he came back to resume his duties.

“If America which is the oldest democracy in the world does this, why can’t we copy it since we copy the provision from them,” it said.


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