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Acting Presidency: Necessity Amends Constitution

Dr. Goodluck Ebele Jonathan, Ag. President

PROLOGUE
By Ikeddy Isiguzo
, Chairman Editorial Board
THE first responses that the manner of the acting presidency the National Assembly thrust on Dr. Goodluck Ebele Jonathan was legally flawed were right. The explanation that it was based on the doctrine of necessity has introduced another plank for constitutional abuses, especially in the hands of politicians for whom individual survival comes at the expense of everyone, and everything.

We had all yearned for a change of gear after almost three months of speculative decisions on the President’s health. It is a testimony to the ingenuity of the human spirit that when the solution finally came, it breached the minimal standards for constitutionality and created new meanings for new circumstances – meanings that are failing to pass even momentary tests.

It was not for nothing that necessity has been dubbed the mother of invention. The ingenuity of the National Assembly in discovering the doctrine of necessity should impress us.

“A rigid and inflexible interpretation will not only stifle the spirit and intendment of the Constitution, but will also affront the doctrine of necessity.  The doctrine of necessity requires that we do what is necessary when faced with a situation that was not contemplated by the Constitution.  And that is precisely what we have done today.  In doing so, we have as well maintained the sanctity of our Constitution as the ultimate law of the land,” Dr. David Bonaventure Achelenu Mark said of the resolution.

It takes special skills to kill a tsetse fly that perches on sensitive parts. The National Assembly must have been unconvinced about its own explanations. It dug deeper for more ridiculous defences of its action that knocked the doctrine of necessity badly.

“We came to the conclusion that the President, through his declaration transmitted on the BBC, has furnished this parliament with irrefutable proof that he is on medical vacation in the Kingdom of Saudi Arabia, and has therefore complied with the provisions of Section 145 of the 1999 Constitution,” Dr. Mark continued on his determined defence of a move that sounds more ridiculous with each word thrown to its support.

The impression is that the President used BBC – a foreign medium, in case we have forgotten – to deliver a sensitive Nigerian document to Nigeria’s National Assembly.

The absurdity of this suggestion rankles. When it comes with the imperious and impervious imprimatur of our Senate President there is cause to be apprehensive. The National Assembly illegally and slyly amended the 1999 Constitution to achieve its aim. Where did Section 145 substitute a broadcast for A WRITTEN DECLARATION?

Section 145 states, “Whenever the President to the President of the Senate and the Speaker of the House of Representatives A WRITTEN DECLARATION that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them A WRITTEN DECLARATION to the contrary such functions shall be discharged by the Vice President as Acting President”.

Can the President transmit the budget, proclamation of state of emergency, deployment of troops on foreign engagement, loans to other countries, treaties, nominees for appointments to the National Assembly through BBC broadcasts?

Dr. Mark was disturbed enough by the inelegance of his magisterial posture that he decimated himself and kiths further without knowing it.

The blind lunge at blackmail depicts dripping desperation. A democratic Senate President, who still claims his actions stem from the Constitution, predicts that our reactions would fly on the wings of “both mischief and ignorance”. The only way to escape this charge is to agree that Dr. Mark’s tinctured doctrine of necessity can amend the Constitution.

“I have re-emphasised this salient constitutional provision to dispel the obvious disinformation and distortion which both mischief and ignorance will inevitably spawn,” Dr. Mark insisted on the compliance with Section 145.

Wikipedia records two earlier uses of the doctrine of necessity in Pakistan and Grenada though Scottish philosopher David Humes had been credited with works on the subject as far back as 1748. Nigeria’s is the third. On 16 May 1955 the Chief Justice Muhammad Munir of Pakistan declared it was necessary to go beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent.

He relied on Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’, and the Roman law maxim urged by Jennings, ‘the well-being of the people is the supreme law’ to resolve a constitutional crisis that rested on several layers of illegalities.

In a 1985 judgment, the Chief Justice of the High Court of Grenada invoked the doctrine of necessity to validate the legal existence of a court then trying for murder the persons who had conducted a coup against former leader Maurice Bishop.

The court had been established under an unconstitutional “People’s Law” following the overthrow of the country’s constitution.

The doctrine of necessity is not cloaked in the opaqueness that the sticky fingers of our politicians are drawing on it.  The principle – even practice of this provision – is that the law cannot provide for all circumstances. It is therefore acceptable to make intervening pronouncements to stem breakdown of law and order.

It seems the National Assembly could have had this in mind. It would have been enough to rate Section 145 inoperative as the President was not in a position to compile with it. On its own that would have created grounds for necessity.

The elevation of a BBC broadcast to compliance with a WRITTEN DECLARATION is obtuse. It diminishes the Constitution, and opens a tempting landscape for unstoppable serial abuses.

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