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Is Jonathan Acting President of Nigeria?

By Nkemjika

IN any true democratic society, the constitution is the supreme law of the land that must be obeyed by all authorities and persons. There has also not been any situation where a true democratic society allowed two presidents or heads of state to direct the affairs of a country at the same time.

This has to do with the fact that constitutions, in all constitutional democracies, define the power relations between a President and his deputy (Vice-President), and entrust the courts with the powers to interpret the laws of the country arising from disputes, be they social, economical or political.

Nigeria, as a true democratic society must be seen to be governed by its constitutional laws as determined or interpreted by the courts. It is from the above premise that an attempt is being made here on the real status of Dr. Goodluck Jonathan, in the wake of President Umaru Yar’Adua’s arrival in the country from Saudi Arabia.

*  Section 287(3) of the Constitution of the Federal Republic of Nigeria says quite emphatically that: “The decisions of the Federal High Court …shall be enforced in any part of the Federation by all authorities and persons …”. The same Constitution also insists in Section 241(1)(b) that: “An appeal shall lie from decisions of the Federal High Court…. to the Court of Appeal as of right in …cases where the ground of appeal involves questions of law alone….” .

A combined reading of sections 287(3) and 241(1)(b) suggests that until a Court of Appeal sets aside the declarations of a Federal High Court on any matter, its (Federal High Court) decisions are binding on all authorities in Nigeria, be they the Presidency, National Assembly, the Armed Forces, the Police, etc.

* As at this time of writing, there is an Abuja Federal High Court ruling on the status of Dr. Goodluck Jonathan whenever President Umaru Yar’Adua is on a leave of absence without informing the National Assembly, a declaration that has not been set aside by the Court of Appeal. The Federal High Court ruling delivered by Justice Daniel Abutu insists that Dr. Goodluck Jonathan cannot “perform the executive functions of President Umaru Yar’Adua in acting capacity as envisaged under section 145 of the 1999 Constitution for now”. Justice Abutu asserted that “the only condition that could warrant his (Goodluck Jonathan) change of status from Vice-President to Acting President is willful compliance by President Yar’Adua to activate the provisions of section 145 of the 1999 Constitution via transmitting a written declaration to the National Assembly endorsing power shift”. As at this time of writing, President Yar’Adua has not written to the National Assembly about any leave of absence from duty.

* Again, Justice Abutu did not mince words when he  said that “he could not and would not invoke the doctrine of necessity as being urged by the Nigerian Bar Association(NBA) to declare that the VP(Jonathan) was  entitled to perform the functions of office of the President in an acting capacity in view of the omission or failure by President Yar’Adua to transfer powers”.

In fact, Justice Abutu said he declined “the NBA invitation because the 1999 Constitution had provided for the procedure to be followed before a Vice-President could become an Acting President in the peculiar situation which we found ourselves now”. And the constitutional procedure talked about by Justice Abutu is “to the effect that the sitting President who is going on leave or unable to perform the functions of his office must transmit written declarations to the National Assembly which President Yar’Adua was yet to comply with”.

* From whatever perspective this matter is appraised, certain propositions are beyond questions here. The first is that the only constitutional situation where a Vice-President can become Acting President in Nigeria is when a sitting President transmits a written declaration to the National Assembly about his leave of absence from duty as sanctioned in section 145 of the Constitution. The second is that a Vice-President cannot be empowered by a resolution of the National Assembly to become an acting President under any circumstance.

THE third  is that until the Court of Appeal sets aside the declarations of the Justice Abutu Federal High Court on this matter, Dr. Goodluck Jonathan remains the Vice-President of Nigeria executing the functions of the President on behalf of President Yar’Adua.

The fourth is that the doctrine of necessity cannot be deployed under any guise to proclaim a Vice-President an Acting President in Nigeria today, unless determined otherwise by the Court of Appeal. The fifth is that all authorities like the Presidency, National Assembly, the Armed Forces, the Police and persons (leaders of thought, pro-democracy activists, journalists, etc) must regard Dr. Goodluck Jonathan as the Vice-President directing the affairs of the country on behalf of President Yar’Adua.

* Unfortunately, and in spite of the above propositions sanctioned by section 287(3) of the Constitution as affirmed by the declarations of an Abuja Federal High Court, the National Assembly, in contempt of a valid court order passed a resolution on February 9, 2010 purporting to have empowered Dr. Jonathan to become the Acting President of Nigeria. The worry here is not that Dr. Jonathan has been desecrating the seat of the President of the Federal Republic of Nigeria in total defiance of the 1999 Constitution.

The worry is that the enlightened community (both in Nigeria and abroad) has been encouraging Dr. Jonathan to subvert the Constitution of the Federal Republic of Nigeria based on an illegal and unconstitutional resolution of the National Assembly that does not even have any force of law in normal circumstances.

* However, no matter what anybody might like to say to the contrary, section 145 of the 1999 Constitution as interpreted by an Abuja Federal High Court ruling that has not been set aside by any superior court. That is, Dr. Jonathan remains the Vice-President of Nigeria directing the affairs of the country on behalf of President Yar’Adua. This is the position of the law which institutions like the Presidency, National Assembly, the Armed Forces, the Police, etc, must respect if Nigeria’s democracy is truly based on the rule of law.

There is no provision anywhere in the statutes or Nigerian’s Constitution or even court declaration asserting that the National Assembly can empower a Vice-President to become an Acting President or that the doctrine of necessity can be applied where a written constitution is in operation as we have in Nigeria.

* Perhaps, it is necessary to  end this piece by appraising the political developments in the country since President Yar’Adua came back. Mr. Segun Adeniyi correctly described Dr. Jonathan as the Vice-President of Nigeria in his first press release on Wednesday, February 24, 2010 intimating Nigerians on President Yar’Adua’s presence in the country. His insistence that Dr. Jonathan is the Vice-President accords with the provisions of section 145 of the Constitution as affirmed by the ruling of an Abuja Federal High Court on the matter.

The later press release on Thursday, February 25, 2010 by the same Mr. Adeniyi describing Dr. Jonathan as an Acting President is contemptuous of a valid court order that has not been set aside by a superior court, and therefore hollow and of no effect. The truth is that until the judgment of Justice Abutu on the status of Dr. Jonathan is set aside by the Court of Appeal, he (Jonathan) remains Vice-President and not Acting President. There cannot be two Presidents in one Presidency.

* In the final analysis, all the actions like the one claiming to have sacked Mr. Mike Aondoakaa as the AGF that Dr. Jonathan have been taking as Acting President are a nullity in the eyes of the law because the Justice Dan Abutu court order regarding him as Vice-President subsists. In the same vein, all military authorities are supposed to take orders from President Yar’Adua because Dr. Jonathan is Vice-President and not the Commander-in-Chief of the Armed Forces of the Federation.

In fact, anybody or authority that takes orders from Dr. Jonathan as Acting President is committing a treasonable offence because such actions are in breach of the provisions of section 1(2) of the Constitution which says that: “The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this constitution”.

Mr. Nkemjika, a research writer, writes from Lagos.


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