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The SAN’s PULPIT: Constitutional saga: Fit for the home video?

By Awa Kalu

Sometime last week, someone, somewhere, decided to bring back our dear and beloved President to his fatherland in circumstances that have triggered further debate as to our ability to manage our affairs as ordered by the extant Constitution. Lest we forget, our President whose movement ordinarily, ought to be accompanied by a dignified measure of pomp and pageantry was brought through the Nnamdi Azikiwe International Airport, Abuja, in the dead of night.

Rather than illuminate his arrival, someone somewhere ordered the lights at the Airport switched off. A combination of different types of motor vehicles took Mr. President and moved him to the seat of power amidst very tight security.

We were denied the opportunity of seeing the present father of the nation who had been ill and abroad for medical treatment for a period slightly in excess of three months – and said to be recuperating. Writing about a President’s entitlement to a modicum of splendour, Professor Ben Nwabueze, SAN, states that ‘The President is hailed, feted and entertained with traditional dances, and showered with gifts’.

He further postulates that ‘splendour is indeed a feature of the life style of African presidents’.

‘Personifying the state, …they dress themselves up in uniforms, build themselves palaces, bring all other traffic to a standstill when they drive, hold fancy parades and generally demand to be treated like Egyptian pharaohs’.

He contends that ‘Ceremony may indeed have a useful role in the life of a nation, provided that it is limited to appropriate state occasions and not made to attend the everyday life of the President’. Can it be disputed that after labouring under the clutches of an allegedly debilitating illness for a period in excess of three months, Mr. President deserved a warmer welcome than was arranged by his handlers?

As if the drama surrounding the return of Mr. President was not demoralizing enough, a statement oscillating between insensitiveness and lack of constitutional awareness was issued soon after, refusing to acknowledge the acting President in that capacity but referring to him as ‘Vice-President’ thus, constructively creating the impression that Mr. President’s return had de-frozen the quiescent powers of his office.

However, to the credit of the author of that statement, a television interview next followed acknowledging the man blessed with good luck as the acting President after all. For the avoidance of doubt, the gap between the office of ‘Vice-President’ and that of ‘acting President’ cannot be wished away and it ought not be assumed that the two positions are one and the same.

As Prof. Nwabueze has submitted, ‘the government of the federation is organised around the president. With certain exceptions and restrictions, the Constitution invests him with the entire executive power of the federation and, what is more significant, makes it exercisable by him in his discretion as a personal ruler, uninhibited by the artificial separation between nominal and real authority, whereby powers legally vested in one person can only be exercised by others’.

It is the learned Professor’s view that ‘unlike his predecessor under the constitution of the first republic, the president under the new constitution is no figurehead who takes no executive decisions or actions except through or as advised by others, and who therefore bears no responsibility whatever for government. On the contrary, he is an executive president in every sense of the term, required to bring his judgment to bear upon every issue presented for decision and upon the content of all advice offered, and to accept responsibility for decisions and actions of government’.

He explains that the executive president as a single individual combines the effective powers of the cabinet, the head of government and the individual ministers with the symbolic authority of the head of state in the First Republic. His point of clarification is that ‘this attribute of a single authority does not require that the president should administer the government alone and unaided. He is by the express terms of the Constitution permitted to act either directly or through the vice-president and ministers or officers in the public service of the federation’.

What emerges from the foregoing is that a Vice-President is a delegate of the power and authority of the President to the extent that the President may from time to time direct. However, should the occasion warrant, as under the present circumstances, the vice-president moves up on the power ladder and becomes the acting President.

In our humble view, once the acting President is on the saddle, his position as Vice-President is not extinguished but goes in abeyance and is only re-activated when the substantive president resumes office. This obviously is the intendment of the Constitution. The point that requires no elaboration is that both the offices of President and Vice-President are created in mandatory terms by virtue of the provisions of sections 130(1) and 141 of the Constitution.

In that vein, the Constitution directs that in any election, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid. The Constitution makes similar provisions in relation to the office of Governor and Deputy Governor.

What seems rather obvious is that at the time of election, the Constitution does not contemplate a President without a Vice-President nor a Governor without a Deputy Governor. What is also clear from the constitution is that certain consequences follow if for any of the reasons stated in the constitution, the President or Governor is unavailable or on the other hand, the Vice-President or Deputy Governor similarly becomes unavailable.

For this reason, the Constitution contemplates the death of the President or any of the Governors. In the event of death, the occupant of these offices cease to hold the office in question and in the case of the President, the Vice-President steps into his shoes. In the case of a Governor, the Deputy Governor becomes Governor in the event of death. Conversely, should the Vice-President or Deputy Governor become unavailable by reason of death, the President or Governor as the case may be, is at liberty to nominate a successor.

Why are we carrying on as if nature no longer abhors a vacuum? A person holding any of the offices of
President, Vice-President, Governor or Deputy Governor may also resign and the consequence is the same as in the case of death, namely, cessation of office. The same consideration applies in the case of removal in circumstances ordinarily referred to as impeachment. It may be surmised that in our experience, the death, resignation or removal from office may not create the kind of complications leading to the present imbroglio.

We have however, seen that the situation contemplated and envisaged by section 145 of the Constitution has become a bugbear for the institutions created by the Constitution, such as the National Assembly and the Executive Council of the Federation. Illness has become as problematic as elections in this country!

The point is simple and it is that the President is incontrovertibly ill, so ill as to be incapable of discharging the functions of his office. The dilemma presently is that those who swore to preserve and protect our Constitution are creating all kinds of quadratic equations and are slow in providing solutions.

In those days when we studied Algebra, Geometry and so on, we always had on hand, a classmate or a senior who could solve equations. How is it that in a country of over a hundred million people, no one has been able to come up with an answer for the predicament we have found ourselves in? The sheer and demonstrable complexity of this equation is of course man made resulting in steps that have created a manuscript that Nollywood will be salivating over in a short while.

The point has been made elsewhere that the National Assembly will be unable for several reasons to impeach the President. The only reasonable opportunity to reinforce the presidency is perhaps for the Executive Council of the Federation to take the steps under section 144 of the Constitution to translate the acting President to a substantive President.

An attempt will be made to breeze through the specifics of that section to see whether it does not erect ‘a bridge too far’. The section provides that the President or Vice-President shall cease to hold office if – (a) by a resolution passed by two-thirds majority of all the members of the executive council of the federation, it is declared that the President or Vice-President is incapable of discharging the functions of his office. The question that needs an urgent answer is: who will draft this resolution and who will present it?

I have no doubt that some members of Council have the requisite know-how to draft the resolution and the gumption or liver to present it. Once the resolution is passed and transforms to a declaration of incapacity to discharge the functions of the office of the person concerned, then (b) the declaration is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of section 144, in its report to the President of the Senate and the Speaker of the House of Representatives. The medical panel mentioned in section 144(4) is to be set up by the President of the Senate and can certify in a report that in its opinion the President or Vice-President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office.

A notice of such certification must be signed by the President of Senate and the Speaker of the House of Representatives and shall be published in the official Gazette of the Government of the Federation. Once published, the President or Vice-President shall cease to hold office with effect from the date of the publication. While the section provides for a procedure that seems simple enough, yet events so far give the clear impression that the invocation of this section is unlikely in the near future.

The only point which needs to be clearly stated is that the procedure under section 144 is not available to the coterie of Advisers and sundry officers who find themselves in the hallowed council chambers when meetings are held. Section 144(5) makes it crystal clear that the reference to ‘executive council of the federation’ is a reference to the body of Ministers of the Government of the Federation, howsoever called, established by the President and charged with such responsibilities for the functions of government as the President may direct.

Looking into my crystal ball, I have no hesitation in predicting that none of the provisions sections 143 and 144 of the Constitution shall come to pass soon enough. What appears less difficult is for Dr. Jonathan to continue to act as President while the President recuperates as the plenitude of presidential powers are available to the him as acting President. Meanwhile, the Peoples Democratic Party has emphasized that the acting President should not eye the President’s office in the 2011 elections as the zoning of the office remains in the North for the next tenure. Similarly, the Governors’ forum has assured us that the President will not resign and will also not be impeached. Accordingly, the only option is that those who have ardently sustained the President through prayers should continue. When there is life, there is hope.


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