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Yar’Adua saga : The risk of hastily amending section 145

By kingsley Omose

One of the positive outcomes of the Umaru Yar’Adua saga has been the sudden drive to amend relevant sections of the constitution to avoid a repeat of the situation where Nigeria has to be leaderless either due to mischief on the part of an incumbent President or genuine incapacitation.

While these moves are laudable, the National Assembly has to avoid creating a straight jacket situation by putting a time frame within which the failure of the President to transmit a written declaration of vacation or incapacitation can be taken as satisfying the requirement for the Vice-President to be declared as the Acting President.

We have to recognise that the recent 78 days leadership vacuum was an abnormality that was taken advantage of since May 2007 by those now referred to as the ‘Kitchen Cabinet’ of the President because of the long running health condition of Umaru Yar’Adua.

The National Assembly also benefited from this abnormality since they knew that the annual presentation and budget defense exercise by Ministries, Departments and Agencies of government was a license to practice ‘carry go’ knowing fully well that Umaru Yar’Adua had always been too incapacitated to oversee the budget implementation exercise.

So the proposal to amend Section 145 by imposing a 21 days period within which a vacationing or incapacitated President has to notify the National Assembly through its principal officers to enable any possible leadership vacuum to be promptly filled by the Vice President as Acting President is fraught with risks. While the danger of having a leadership vacuum in the exercise of the executive duties of President of the Federal Republic of Nigeria are quite high, what is more dangerous is having the President and the Vice President struggle over the exercise of such duties because of the application of the 21 days rule.

This means that allowing the incumbent President to initiate the transmitting process of proceeding on vacation or being capacitated to jump start the Vice President becoming Acting President still remains the best option at least under Section 145 as it allows for the smooth exchange of power and eliminates any bickering or rancour. Unfortunately, this does not cure the leadership vacuum that arises out of mischief or genuine incapacitation as the alternative of getting the members of the Executive Council of the Federation to initiate the process of an incumbent President being declared incapacitated by the National Assembly is also fraught with mischief or reluctance.

The first thing we can do is to ensure that those who will occupy such executive positions at Federal, State or Local Government levels are certified at least before being sworn of being free of ailments or medical conditions that are incapacitating or debilitating and an independent medical process or existing medical processes can be utilized for that purpose. Particular attention will have to be paid to the mental states of these candidates or office holders as exercising the executive duties of the President requires taking decisions that can affect the wellbeing and fate of 140 million people and by extension the wellbeing and fate of the 14 other nations in West Africa.

Second we may also want to follow the American model and eliminate the need for the President to transmit to the National Assembly that he is proceeding on vacation as this will eliminate tossing the executive duties of the President to and fro between the incumbent President and the Vice President because an Acting President who is mischievous can wreck havoc during such periods.

This means that Section 145 can only be activated in the event of the President becoming incapacitated in which case he or she is no longer in a position to exercise the executive duties of President of the Federal Republic of Nigeria and since excutive authority flows from that office then it is fitting that such duties be performed by the Vice President as Acting President. This is how the Umaru Yar’Adua scenario should ordinarily have played out but for mischief makers who having hijacked the executive duties of the President since May 2007 because of his health condition believing that even when the private incapacitation of Umaru Yar’Adua had become public knowledge were not willing to cede power to the Vice President.

Third, we can see that the Constitution envisages two scenarios for activating the flow of executive power between the President and the Vice President one initiated directly by the incumbent President and the other initiated by the members of the Executive Council of the Federation. Unfortunately, we have seen that mischief makers or blind loyalty can effectively hinder the activation of this process by the Executive Council of the Federation thereby keeping an incapacitated President in office to the detriment of Nigerians and foisting a leaderless situation in the country that the same mischief makers can exploit to their advantage.

We probably need to examine the exercise of this power by the Executive Council of the Federation in declaring the President incapacitated and see whether the function should be transfered to either the Judiciary or the National Assembly, or alternatively see how the existing exercise of that function can be reinforced to eliminate mischief or blind loyalty. In the final analysis the Constitution cannot envisage and provide for all scenarios and this is where the attitude of our office holders comes into play in understanding as Condelezza Rice the former United States Secretary of State said that the Presidency is more important than the occupant of the office of President.


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