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Re : The Senate’s illegal resolution

By Kingsley Omose

That some Nigerians are questioning and or challenging the actions of the National Assembly in declaring Jonathan Goodluck as Acting President of Nigeria is not unexpected given that the actions in question are regarded by many as unprecedented.

Both the Senate and the House of Representatives had on February 9, 2010 unanimously passed similar resolutions to address the 78 days leadership vacuum that had existed in Aso Rock following the hospitalization of Umaru Yar’Adua in Riyadh, Saudi Arabia. The resolutions relied on an interview granted by Umaru Yar’Adua to the BBC and broadcast to a global audience on January 12, 2010 where he admitted his incapacitation, and this was taken by the National Assembly as amounting to a transmission to them sufficient to satisfy Section 145 of the Constitution.

This section provides that when the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or incapacitated in exercising the functions of office as President then the Vice President becomes the Acting President.

Similarly, when the President transmits a written declaration to the same officers that he is ready to assume the functions of his office, then likewise the Vice-President ceases to act as such and the executive powers of that office are restored to the President. What these Nigerians are saying is that although Yar’Adua is incapacitated as a result of which the country had been leaderless for over two months, the BBC declaration he made was not in writing and did not pass the test of transmission as contemplated by Section 145 of the constitution.

First of all, it is good that those agitating against the leadership vacuum in Aso Rock premised their position on the need for Yar’Adua to comply with the Constitution to enable the Vice President fill the leadership vacuum.

It is also good that those now agitating against the way and manner that the National Assembly filled the leadership vacuum are also relying on the failure to comply with the provisions of the Constitution as the basis for their agitations. What would have been disastrous for our pledging democracy would have been the intervention of the Nigerian military by way of a coup to address the leadership vacuum as this would have resulted in the suspension of key sections of the constitution.

In the midst of these agitations, the constitution is the better for it as the processes and events that are going on over the number one office in Nigeria and which also involves all the arms of Government, i.e. the Executive, Legislature and Judiciary, are helping establish the primacy of the constitution. Many have always doubted the authenticity of the Constitution which was imposed by military fiat in May 1999 as not being a product of the Nigerian people, and the conduct of three flawed General Elections have not eased those feelings.

However, the events of the last few weeks have ensured the consummation of the Constitution probably better that we could have achieved with a referendum because we all identified with the issue at stake, which is subjecting the occupant of the office of President to the Rule of Law. This is really what these agitations are about, and for as long as the interplay surrounding these agitations involve the Nigerian people and the three arms of government within the context of the Constitution, then we are collectively winners in what we now call the Yar’Adua saga. Having said that, one still has to examine whether there is merit in the position adopted by those who are now saying that no written declaration was transmitted by Yar’Adua as required by Section 145 thereby avoiding the decision made by the National Assembly.

It is instructive that Yar’Adua who is at the center of the debate regarding whether he transmitted a written declaration to the principal officers of the National Assembly has not issued a public statement or made another media interview rejecting what the National Assembly has done. We have also not seen the Special Assistant to the President on Media Matters, Olusegun Adeniyi, coming out with a written statement or press interview to castigate the members of the National Assembly for breaching the provisions of the constitution.

Even members of the Kitchen Cabinet of Yar’Adua who all along have been keeping us abreast of his recovery process in Saudi Arabia and eventual return to Aso Rock not only to pursue the 7-Point Agenda but to contest the 2011 General Elections have been strangely quiet. Not even Turai Yar’Adua who is one of a handful of Nigerians outside the medical personnel attending to Umaru Yar’Adua to know his exact state of health has come out to condemn the National Assembly for imputing to her husband things that he did not do or sanction.

It is difficult to believe that Umaru Yar’Adua who has been temporarily set aside from the office of President using a public declaration he probably made through the BBC to assure Nigerians that he was still alive even though incapacitated, would remain silent if he had issues with the manner of his removal. When this is taken together with the earlier decision of Dan Abutu, the Chief Judge of the Federal High Court in one of the cases requesting Yar’Adua to be compelled to forward a letter in accordance with Section 145, then the legal position becomes clearer.

The import of that decision was that Yar’Adua has a discretion whether to transmit a letter in accordance with Section 145, and as such he cannot be compelled to forward a letter of his vacation or incapacity to the principal officers of the National Assembly. With the National Assembly saying that Yar’Adua has exercised that discretion through a BBC interview and that such a declaration satisfies the requirements of Section 145, then only Umaru Yar’Adua can come forward to say that he did no such thing.

Another import of that decision is that since the discretion is vested in Yar’Adua he also had the option of deciding how best to exercise that option and in the absence of any proof on his part to the contrary, his decision to transmit that declaration through the BBC complies with Section 145. The only other parties that could easily have torpedoed the resolutions of the National Assembly are the President of the Senate and the Speaker of the House of Representatives coming forward to say they have not received any written transmission from Umaru Yar’Adua, but they have not said so. In fact, both the President of the Senate and the Speaker of the House of Representatives are the ones staunchly defending the actions of the National Assembly, insisting that the Constitution was complied with and the actions undertaken in the best interest of Nigeria.

In the absence of any direct mandate by Umaru Yar’Adua or the principal officers of the National Assembly to challenge in a court of law his compliance with the discretionary rights contained in Section 145, then such a person will have no standing or basis to ask that the resolutions be set aside. Transmitting a written declaration to the two principal officers of the National Assembly that one is proceeding on vacation or is incapacitated is much easier than doing so through an interview with a media outfit such as the BBC from the Intensive Care Unit of a Saudi Arabian hospital.

What I am in effecting saying is that by transmitting to the whole world a declaration of his  incapacity to continue to function as Nigeria’s President, Yar’Adua went overwhelming beyond the requirements of Section 145 of the constitution. The word “write” means to put in a form that can be read, while the word “declaration” means a statement that is emphatic and explicit (spoken or written) and when the two words are taken together it means an emphatic and explicit statement that has been put in a form that can be read. The word “transmit” means to convey, to transfer to another, impart, to air: broadcast over the airwaves, as in radio or television, and also means to send from one person to another, such as to transmit a message.

So let us infuse Section 145 with the above meanings: “Whenever the President conveys, transfers, imparts, broadcasts over the airways as in radio or television, to the President of the Senate and Speaker of the House of Representatives (the National Assembly) a statement that is emphatic and explicit and put in a form that can be read that he is otherwise unable to discharge the functions of his office, until he conveys, transfers, imparts, broadcasts over the airways as in radio or television to them a statement that is emphatic and explicit and put in a form that can be read to the contrary such function shall be discharged by the Vice-President as Acting President”
“We must be the change we want to see in the world” —- Mahatma Gandhi.


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