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Yar’Adua’s Handdover:What the Law says, by Auwalu Yadudu

Professor Auwalu Yadudu...Sani Abacha meant well for the nation
Professor Auwalu Yadudu...Sani Abacha meant well for the nation

By JIDE AJANI, Deputy Editor

The excitement was palpable – that is meeting Professor Auwalu Hamisu Yadudu. Tracking him from Abuja, Kano, Ilorin and even Lagos, it was worth the long wait to finally pin him down.  There are some interviews you do because you want news; but at the end of this interview with Professor Yadudu, you get education.

Modest in his own way, this graduate of Harvard University packs a punch. Even when his views may not agree with yours, he speaks his mind. Perhaps, one of the fascinations leading up to this interview was and remains the fact that recently, Professor Yadudu has become a darling of some pro-democracy leaders.

Meeting him at the launch of CODER – Coalition of Democrats for Electoral Reforms, sitting on the same high-table with Bola Ahmed Tinubu, John Odigie Oyegun, Ayo Opadokun (all of them National Democratic Coalition, NADECO chieftains who made life uncomfortable and governance difficult for General Sani Abacha, whom Yadudu served as adviser, legal matters) was for this writer curious.  Here was a man who was on the other side but who today, still mixes.  So, what is the cause?

He speaks on Sani Abacha though he insisted it was a no-go area. He also gives an education on who can determine the fitness or otherwise of a siting president, explaining the process and its challenges too. Excerpts:

IT would be difficult for people to reconcile that a Yadudu Auwalu, is the one scratching a recharge card to load on his telephone.  As General Sani Abacha’s adviser on legal matters, the impression then was that this was a man of power and means; so what happened?  Where did all the money go?

Well, I thought 11 years after General Abacha, I no longer look back at that event. But having raised it, I would say what people should know of me is that I am a human being who is simple-minded, and who, as a professional, did my duties according to the ethics of my profession and to the best of my abilities and guided by my conscience; and also determined not to harm anyone.

I remember this as an abiding principle that I lived by all through that period as adviser on legal matters to General Sani Abacha.

The reason I asked that question is because you were seen as a man who had an answer to every matter of legality raised against the Abacha regime.  People did not know Sani Abacha beyond his dark glasses and the fact that he took over in a manner considered treacherous.  How would you describe the man Abacha?

I think Sani Abacha was a leader who meant well for the nation. He was a man who found himself thrust in the circumstance that he found himself. He was also a man who avoided all the glare. As a nationalist, he ruled in the best manner that he understood his idea of nationalism and went about protecting what he felt was the best interest of Nigeria. Of course, he was a military officer; and as a military officer, had a larger and more complete view of Nigeria.

We as civilians tend to have our own skewed perception of this country. But the military, because of the training they’ve been through and whatever you may say about their incursion into politics, they felt it was more holistic and more patriotic. You can question a lot of things that they did, but that was how I saw it.

People would disagree with you immensely and I’ll give you one simple instance: The self-succession bid?

Auwalu-Yadudu: The vice president remains protected
Auwalu-Yadudu: The vice president remains protected

(Cuts in) Well, I do not know about the self-succession bid. But even then, the self-succession bid would not disqualify him as being patriotic. You may say he was misguided if indeed he set about doing it but I don’t know whether you will question Obasanjo’s patriotic credentials because he, too, attempted a self-succession move.

One of the things I find a bit queer is this visibility that you seem to have acquired. When some people were launching the Coalition of Democrats for Election Reforms, CODER, you were visibly present and you gave a speech. I can count many other pro-democracy events that you’ve been invited by the same crop of people who felt that you as Sani

Abacha’s legal adviser, was anti-democracy, anti-NADECO and so on?  What’s it with this new romance?

I think you might have to ask them. But, personally, I think it’s about my views and the way I started. I do hold my views and I think as I said I was a professional, thoroughly professional in the way I discharged my duties and I said things as I saw them.

But as to whether some would question my credentials about what I know about democracy, I do not see myself as or claim to be a pro-democrat in the sense that a lot of people would like to flaunt their credentials.

I think as a professional I hold my views and I tell things as I see them and I’ve never been afraid to express an opinion and I’m considered in what I say and I was never partisan even in the sense of what was going on then and even in the political sense also of the day I tend to be an objective assessor of the conditions as I see them. I may not be right, I may not see the dilemma of everybody but I say things as I see them and I’m measured in the way I comment on some things.

The issue of constitution amendment, do you see the provision which states that two thirds majority in each of two thirds of the 36 states in Nigeria must accede to an amendment before it can be carried, as being practicable in the Nigeria of today where the prevailing socio-political environment is, to say the least, desirable?

Quite frankly, amending the constitution is not the issue and that’s how it should be. Even though some may say that the constitution is not the process of some participatory, people-driven process but somehow, the legitimacy of what we do and what anybody else does in Nigeria in terms of the constitution or legality of such action is based on that same constitution.

You do not want to be treating a constitutional provision with levity so requiring some stringent process of amending it is a necessary incidence of treating constitution especially the presidential system. Now, having said that, I still feel that if Nigerians are willing to and are able to muster the necessary political will and are able to engage a consensual way of resolving disputes and issues, I do not rule out the possibility of amending the constitution.

Working of government

But as I’ve said earlier, if you seek to amend the constitution in a manner that is self-serving, if you seek to amend the constitution in a manner that you seek to deprive others of certain benefits and to aggregate them to yourself and you’re doing so, it will not go far.

You have to remember, no single person or group owns this country – this country is not yours alone. But if there are issues that everybody would really see as touching on the orderly working of government and also on the legitimacy of the process, and you can really show that these are not issues that are self-serving in any way, then you are bound to have reached some measure of consensus and ability to amend the constitution now.

Obviously, as the point is being made in some quarters, if you seek to do it all at once, it would be difficult to muster the needed political will or consensus around issues.

But if you seek to do it in a piece-meal manner, you are more likely to have some level of success. For example, now, there is no doubt about the fact that everybody is satisfied that the electoral process needs to be sanitized and including the incumbent government and its actors agree that we need to sanitise the process.

Today, you may be a beneficiary of a flawed system and tomorrow you may become a victim so everybody would like to bring about the needed change. I have a feeling that if we set our minds to amending the constitution to the extent that we want to sanitise the electoral system, and we don’t seek to do other things – and this is not to suggest that other things are not or less important – but we set our minds on the process of electoral reforms and we set our minds to doing it because it is desired and it would also go a long way to establishing a firm foundation for amending other parts of the constitution in future, we shouldn’t lose heart to say it is only those issues that are more pressing to you or no other issue at all.

You talked about self-serving sentiments.  Let us look at the State Independent Electoral Commissions, SIECs.  You’d mentioned earlier that the reason you would want to support it is not particularly aligned with the reasons why the state governors want it.  Now, with what we’ve seen of local government elections, and with what we know about state houses of assembly in the pockets of the state governors, how can we avoid self-serving amendments?

The way I see this is that the electoral reform being embarked upon is not self-serving but not in an exclusive manner. It is also salutary because it seems to be enjoying a very large measure of public support for some changes to be brought about.

But in any event, it is also self-serving because if you do not correct things, the next time around there may not be another election that you may not end up with bloody noses and I think many wouldn’t want to have bloody noses about these things and in a way, I am able to prioritise.

And I think it is time politicians also begin to priorities. We’re not addressing these things now by way of constitutional amendment not because they are not important but because we may have to do things in measured ways so that if you’re able to conduct credible elections which then legitimizes the exercise of power, you may then begin to have actors who are more even handed and who are more tolerant, more acceptable of other changes being brought about; to correct the setting for now and to prepare more grounds for an even more involving and self serving changes and if you’re able to get the consensus of the people why not.

Between corruption and due process, some people accuse Nuhu Ribadu of abandoning due process in the pursuit of his anti-corruption crusade?

That was wrong. Nigeria has been ranked 131 on the corruption index of Transparency International (TI). If you take a critical look at our laws and the prosecution of allegedly corrupt individuals, you’ll observe that there are some loopholes which are usually exploited. Farida Waziri comes with her due process as enunciated by President Umaru Musa Yar’Adua and it appears as if nothing is happening.

What other way do you think we can employ in  fighting corruption? Personally there is no other way of doing it than following the law, following due process is a very critical component of rule of law.

You suggested it yourself that we shouldn’t let lose a mad man, doing things to his own sense and judgment of what is right and good for the nation. Yet, what you can try people for is there according to the law. How you go about doing it too is prescribed by the law.

I would not subscribe to any lynch mentality overtaking us in our bid to fight corruption and say because we think we’ve found a thief we should put a tyre around his neck and torch the individual.

But even at that, you know as much as I do that the feeling out there is that nothing is being done; again, you look at the process of getting an alleged corrupt public officer successfully prosecuted and you’ll appreciate the challenges involved in the process?

Sometimes they are not entirely wrong when they say nothing is being done. In truth, not much is being done and even giving allowance and accommodating the need to do things according to due process, we’re not doing enough.

How could we have done more, given the circumstance?

I cannot authoritatively decide that the president is incapacitated
I cannot authoritatively decide that the president is incapacitated

You see, there can be a change of attitude on the part of many. The judicial process, bring about changes in the law; judicial attitude and even public understanding and assessment. Let me tell you, sometimes we as individuals tend to approve of whatever the scoundrels do in our midst and we tend to encourage them.

I think a change of attitude across the broad spectrum of society can help bring about the type of change that would be necessary to achieve the desired results.

During the Olusegun Obasanjo years, the judiciary took exception to some of the actions of that regime and one of the judgments some people have come to critically dissect in the face of new realities is the Supreme Court judgment which declared that a vice president can dump the platform which brought him to power for another political party and remain in office?

Well, I do not think that judgment was one that was not supported by law. I think the Court of Appeal and the Supreme Court were very, very clear that the vice president, Atiku Abubakar, yes, came on a ticket on the platform of the Peoples Democratic Party, PDP, but that does not in anyway take away the freedom that the same constitution has given him regarding his freedom of association and that simply leaving and he did not even say he had left the party but that he was being hounded out of the party, to me provides a cogent reason and verifiable legal basis for the decision the courts took.

Now, the other thing to note is that yes, the judges are human beings and probably may be they, too, are affected one way or another by the prevailing circumstance but I think it has nothing to do with how and what they thought of Obasanjo. Whenever I ask this question, people engage in double speak.

Now, take Goodluck Jonathan for instance:

He decides to dump PDP for a political party that is fully sold to the tenets of MEND (the Movement for the Emancipation of the Niger Delta); Jonathan has some constitutional roles to play as (1) chairman of the National Economic Coucil, NEC; (2) he deputises as chairman of the Federal Executive Council, FEC; (3) he is a member of the National Council of State and also deputises for the president and commander-in-chief; (4) he is a member and also deputises for president in the National Security and Defence Council meetings. With all these roles, how would a vice president who rests on that judgment, having dumped the same platform which brought him along with his boss to power, how do you see such a person faring in those capacities and can you see the dangers?

He is well protected. Yes, he is protected

Along with whatever consequences that may arise from his roles in all these that I have put on the table?
Yes. Yes he is perfectly protected because he still remains and he has not ceased to be the vice president of the Federal Republic of Nigeria, without prejudice to his leaving his original platform. Until he ceases to be the vice president, you can not deny him the privileges that go with the office.

Now, he may have problems with the party, he may even have problems with the president, he may have problems with the society but in the eyes of the law, he remains the vice president of the Federal Republic of Nigeria and he remains protected by that judgment and a correct understanding of his status.

That brings us to the issue of President Yar’Adua leaving the country and not writing any letter of handover. That did not follow due process? The vice president is in office but was not handed over to. Based on the constitution, what do the letters prescribe in this situation?

What the law says in Section 145 of the constitution is that the President, when proceeding on vacation, may decide to transmit to the presiding officers of the two chambers of the National Assembly that he is proceeding on leave and that the vice president should act – that he is delegating his authority to the vice president and that any time he’s back, he can write again to reclaim his delegated authority.

The law is not more than that. It doesn’t mandate that whenever he’s going on leave or that if he’s indisposed that he must write. The decision is his and his own alone. I don’t remember during the Obasanjo years when he handed over to Atiku – I don’t remember. And don’t forget, too, that we have had governors who are regulated by the same provisions of the constitution, when they’re proceeding they do whatever they want to do.

I remember quite clearly that in Lagos State, Governor Tinubu, when he didn’t go well with his deputy, delegated someone else to act in his capacity; someone even went about doing certain things for him – the constitutional provision is very clear. It is the positive action of the president or governor, transmitting his intention to go on leave and in this case indicating his indisposition and that his deputy or his vice should act.

Now, not doing so may not be a good thing for the political process or even a good working relationship. But we must not lose sight of one thing:  As we speak, I can not authoritatively decide or even come to the conclusion that the president is incapacitated or that his incapacitation is such as has prevented him from performing his functions and responsibilities of the office of the president and commander-in-chief. It is not within my competence to make that determination.

The other provision in the constitution is, of course the one that states that if he doesn’t act, and those within the system are satisfied that he is incapacitated, then they can invoke Section 144, which is that the Federal Executive Council, FEC, can determine that he is incapacitated and even so, after taking that decision, a medical board has to be constituted, professionals who would now determine that since the FEC has pronounced him sick, incapable physically or mentally, of running government, that he’s ill, or that he’s incapacitated, then that board would have to verify that.

Once they verify and come to a conclusion which tallies with that of the FEC, then the man ceases to be president and it is no longer a question of him delegating. It is a complete ending of his mandate. As you know, Section 144 is rather punitive and derogatory and not very appealing. In the first place, no minister would even be suspected of habouring the idea that this man is ill and, therefore, we should invoke the spirits of Section 144.

But at the end of the day, the President and his advisers, including medical advisers are in the best position to make that determination whether to invoke Section 144 or Section 145.  But it is in my view, assuming that he is so incapacitated it’s not just for people to determine just like that.

Let’s quickly talk about the North and South; being a northerner, Harvard trained, and all that, when people postulate that Nigeria’s under-development is a product of the type of leaders we’ve had, with a preponderantly northern skew, and that it is the North that continues to drag the entire Nigerian nation backwards, how do you feel?

It doesn’t make me lose sleep. People have a way of commenting on issues and they can be utterly wrong.

Incumbent president

I think the decision of an incumbent president that is in one way or the other incapacitated but not doing the right thing according to the constitution is not something that is unique to northerners. Of course it’s all part of politics and I think it’s not fair to President Yar’Adua.

No!  Not about President Yar’Adua, but the North as a block?

Well, I understand but it is not fair to the North that people would be saying this about whichever president of northern extraction because we’ve never had any similar situation like Yar’Adua in the past that, to me, I don’t view these matters from the North-South angle whether it is Obasanjo or Yar’Adua. These are our leaders and we shouldn’t be in the mood of simply being prejudicial of assessing abilities of individuals.

On General Abacha, I still think we should….?

(Cuts in) Please, I have said I do not think we should talk about General Abacha or his memory, please, I request that of you.

But an interview with you without General Abacha or Mayam Abacha or the children would not be….?
(Cuts in again) Jide please, I do not want to…

Okay, while you were legal adviser, what single event would you want to point at which made you or makes you feel bad whenever you remember, during your tenure as legal adviser to General Abacha, or how you feel when people discuss his stupenduous wealth, especially the revelations during the Obasanjo regime?

Never a moment that I had with General Abacha discharging my duties that I will regret; or that I will have cause to feel bad about or what people will say about his wealth, I wish we should have the decorum to make allegations against people who have the opportunity of responding and I’m not in a position to comment and I don’t think it’s fair to make such allegations.


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