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N/A resolution and the poisoned chalice called doctrine of necessity

By Chris Agbiti

Again, for the umpteenth time, Nigeria emerged from its ashes of constitutional conflagration that sort of defied the natural order of combustion: much like the Mosaic experience of the bush consuming the fire rather than the other way round. So it was with the recent constitutional crisis triggered off  by the eerie power vacuum in the wake of the long absence of President Yar’Adua from the country on medical trip.

As the entire nation waited with bated breath whether the final Armageddon had come for Nigeria, the National Assembly, like the legendary Phoenix, rose up to the occasion, after much foot dragging, with the uncanny panacea of great ingenuity that has helped to recreate us once again from the fast lane to perdition back to the service lane of instalmental decay.

In what seems more of a spontaneous instinctive reaction of self preservation, the National Assembly, a few days ago took it upon itself to sit at judgment to determine whether by proper construction of the provision of  Section 145 of the Constitution of the federation, the interview granted by Yar’Adua to BBC in far away Saudi Arabia, approximates to compliance with the requirement of the said section of the Constitution that obliges the President to transmit a letter to the National Assembly in such a situation as the President has found himself, as to allow the Vice President to step in as Acting President.

After receiving sufficient “evidence” from among themselves, the law makers arrived at a finding vide a yet-to-be-identified-but-apparently-emerging canon of interpretation that the President Yar’Adua’s interview with the BBC even “over-complied” with Section 145 of the Constitution as the BBC’s transmission of the interview was not only to the National Assembly but also to the whole world! And with that, the legislative hammer came down hard for Dr Goodluck Jonathan to assume the mantle of presidential power as Acting President, thus laying as precedent, the propriety of legislative usurpation of judicial power in such an event for which the law makers have ingeniously described an “act of necessity”.

While not a  few undiscerning minds have resoundingly applauded the conduct of our lawmakers in this regard, it is however advisable to have a sober rethink before the hysterical rush to join the band wagon in the entire danse macabre by the National assembly. It is noteworthy to state right away that the fact has never been in doubt that one of the props upon which the principles of constitutional democracy as practised in Nigeria stands is the principle of separation of powers among the three organs of government. That being the case, it is therefore quite disturbing that the interpretation of statutes that constitutes the real bedrock of judicial function is now being brazenly usurped by the Legislature on the altar of “ Necessity.”

The usurpation of judicial function by the Legislature in clear violation of the Constitution is a homicidal assault on the doctrine of Checks and Balances, the leverage upon which the three organs of government coexist to sustain the system. The conduct of the lawmakers is a demonstration of its unfounded pent-up disdain for the Judiciary.

I am not unmindful of the argument of the flip side that that the Judiciary could not have acted in the circumstances as there was no dispute in that regard. Such argument, with the greatest respect, glosses over the fact that the existence of law as to how an act is to be carried out as in the situation under review, presupposes a command and a restriction of individual will against arbitrariness in the face of such constitutional challenge as we found ourselves.

The point I am labouring to make is that the appropriate forum to ventilate their compulsive urge (labeled as “Necessity”) should never have been in the hallowed chambers of the National Assembly but before the sacred Temple of  Justice where the judicial powers of the Judiciary may be invoked by submitting to it the appropriate constitutional questions for determination as to whether or not the interview granted by the ailing President Yar’Adua to BBC qualifies as transmission of  letter to the National Assembly as to make Dr Goodluck Jonathan step in as Vice President.

Lord Halsbury L C aptly captured it in his pronouncement in Hilder and anor. Vs  Dexter ac 474 at 477 when he said thus, “in construing a statute, I believe the worst person to construe it is the person who is responsible for the drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed”.

In conclusion, while some continue to applaud the law makers for their resolution installing Dr Goodluck Jonathan, a person I hold in a very high esteem for his equanimity and intimidating humility, as Acting President, it bears repeating to still state here that with the brazen usurpation of the judicial power by the legislature, a precedent that seems to have received the imprimatur of a large percentage of informed but unsuspecting public, a chain of events certainly are set to unfold, one of which is that parallel binding forces of law may stare us in the face in future, viz, senate resolutions on all matters and decisions of courts. What happens thereafter can only be left to conjecture.


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