By Akpo Mudiaga Odje

Against the razzmatazz and cacophony caused by the state of executive vacuity created by the absence of     President Umaru Yar’ Adua since 23rd of November, 2009 without transmitting a written declaration pursuant to Section 145 of the Constitution, the National Assembly last week proceeded and empowered the Vice President, Dr. Goodluck Jonathan to assume the office of Acting President pending the President’s eventual return.

This discourse examines the Constitutionality and/or necessity for the resolution of the National Assembly as well as the need to amend both the relevant sections of the Constitution and the need for our leaders to urgently imbibe the attitude of integrity as a way of life.

The Resolution of the National Assembly authorizing Dr. Jonathan to assume the office of the Acting President of Nigeria is a child of necessity.  Indeed without that pragmatic approach, the nation could have drifted towards anarchy. The said Resolution however constitutionally imperfect it may be, is what offered the most pragmatic approach to move the already restless nation forward in the circumstances. Based on that jurisprudence of law, I align myself more with the Resolution of the House of Representatives, which premised its own on the need for us to make laws for the Peace, Order and Good Government of Nigeria.

At this point the Senate should note that just as it accepted the interview of the President on the British Broadcasting Corporation (BBC) of 12/1/2010 as a written declaration, it may also work against it, if the President says in an interview tomorrow on the same BBC that he is now fine and ok.  That will also mean sending a written declaration to the contrary thus returning power to him under Section 145 of the Constitution based on the Senate’s interpretation.

In fact, Section 145 which was lifted hook line and sinker from Article XXV of 1967 of the American Constitution provides under Section 3 that: “Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge  the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President”. The Americans have effectively applied the above provision for 43 years since 1967 without any problem.  Whereas in just 10years, we are now having problems with the same provision.

In retrospect the President Ronald Reagan complied with that Section by to handing over power as Acting President to George Bush (Snr) in 1981.  When he was shot, but remained conscious until surgical operation. Again, President George Bush (Jnr) because of a two hour operation, complied with the above Section by handing over to Dick Chenney as Acting President. This again brings to the fore the appropriateness of lifting laws from honourable societies into dishonourable societies. The original Section 145 of the constitution, was enacted for elected leaders of honour and integrity.  In the United States. So lifting it into Nigeria, where leaders have lost touch with honour and integrity will simply not work.

Thus, we have to amend it to catch our dishonourable leaders. The only constitutional means open to the National Assembly was to impeach the President under Section 143 for abandoning his office and violations of the Constitution by not holding regular meetings of the Executive Council of the Federation as directed under Section 148.

Failure to implement resolutions of the National Assembly pursuant to Section 5.  And traveling out of country for over 70 days without notifying the house either orally or by writing.  These may form grounds of misconduct under Section 188 (10).  “The National Assembly and the Nation faced a very serious and unique situation not envisaged by the constitution.   However, the obstacles were much.  Firstly, the Executive Council of the Federation refused to pass a resolution that would galvanize Section 144 of the Constitution.  Secondly, the Federal High Court Abuja, ruled that the President did not violate Section 145 of the 1999 Constitution by not transmitting a written declaration that he was proceeding on medical vacation to Saudi Arabia.

Thirdly, the National Assembly being under a justified sympathetic disposition could not proceed to impeach a President who was genuinely sick or incapacitated and perharps could not write, sign or even thumbprint. Fourthly, in the words of the Governor of Niger State, Chief servant Babangida Aliyu, none of the 36 (six) Governors of the States nor the Senate President or Speaker of the House of Representatives including the Secretary to Federal Government, had seen or spoken with the President to know his state of health since 23rd November 2009, when he travelled out of the country.

The nation was filled with endemic tension and panic.  Elders, statesmen, radicals, progressive and even conservatives were all concerned that the nation was heading for the abyss. We therefore had to find a way to survive first as a nation as a matter of necessity.  And I think the Resolution of the House of Representative specifically captures the doctrine of necessity, which authorizes parliament to pass any law necessary but not provided for in the Constitution to avert anarchy or a break down of law and order. In fact it was a revolution and not just a resolution. This is so because a revolution involves an effective seizure and exercise of power in violation of the Constitution.

And this has a legal backing because it is presumed to be an act of the people as in this case.  Sovereignty belongs to the people as enshrined in Section 14 (2) of the 1999 Constitution, which provides that: “Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all it powers and authority” This is truly the revolutionary power of the people referred to by the sagacious Abraham Lincoln when he noted that: “This country, with it institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it or revolutionary right to dismember it or overthrow it”. This is exactly what the Resolution especially of the House of Representatives has done.  A revolution to dislodge the previous existing legal order as the situation facing us was not contemplated by the Constitution. The doctrine of revolutionary change as well as a efficacy were lucidly considered and crystallized in the case of Lakanmi Vs Attorney-General 1970 6NSCC 143.

The above provision and the doctrines of necessity as well as efficacy provide the jurisprudential legal platform in support of the National Assembly Resolution. In fact, in addition to the Indian case of The State V Dosso 1958 PLD SC 533, wherein this doctrine was applied, in Cyprus too the Court in Attorney-General V Mustafa Ibrahim (See page 45 of Order, Legitimacy and the Political Process ,infra) applied the doctrine, where the House of Representative passed an emergency Law without the Constitutional quorum, to prevent the vacuum and threat of breakdown of law and order created by the resignation of some judges in the Supreme Court,  the Court upheld the action of the House of Representatives on grounds of necessity even though same was  unconstitutional, to prevent the break down of law order.

And in that case just like in our own House, the House of Representatives based its authority for its action, on its powers to make law for the peace, order and good government of the people of Cyprus. The proficient Ogundade JCA (as he then was) has saved this nation in 2003 under the Doctrine of Necessity. The principle operates as a defence only to the state.  In fact the Courts have become almost helpless in such situation, because the doctrine of necessity usually foists on the Courts state of a fait accompli as exemplified in our jurisprudence.

Thus, in National Assembly V Obasanjo (2003) 9 NWLR (Pt 824) 144. Oguntade JCA (as he then was) applied this doctrine with admirable judicial restraint in the same circumstance, when he held that even though the Electoral Act 2002 was not constitutionally passed into law, but commendably declined to void it, on the grounds of necessity, and efficacy because all the elected officials in Nigeria, were elected under the Electoral Act 2002, so to declare it void will totally cause anarchy.  In the words of the Law Lord: “the said law is now being used for the 2003 National Election to declare it unconstitutional and strike it down at this stage may lead to a wide spread disruption of national life..” He proficiently thus exercised his discretion not to grant the declarations sought by the Plaintiff even though the Electoral Act 2002 was unconstitutional.

And Glanville Williams the author of the rudimentary but legally classic work titled “Learning the Law” had acknowledged this view when he noted that: “The defence of necessity involves a choice of the lesser evil.

It requires a judgment of value, an adjudication between compelling “goods and a sacrifice of one for the other…. The defence of necessity is an implied exception to particular rules of law.  It operates parallel to the express law.  It does not abrogate an express law, but can qualify it for the purpose of averting the threatening danger”  (See Glanville Williams (1953) Current Legal Problems) (For more on the “Doctrine of Necessity” see the great work of the quintessential Dr. Robson Momoh, also a lawyer, in his book “Order, legitimacy and the Political Process” from pages 51-62).

National Assembly Resolution also supported by the Doctrine of Efficacy. It is also apparent that the principle of efficacy also supports the Resolution of the National Assembly as all institutions including the Armed Forces and majority of Nigerians have all accepted and acted in tandem with the Resolution as a necessity thus accepting its effectiveness and bindingness on all of us.  See Oguntade JCA (as he then was) in National Assembly Vs. Obasanjo (Supra). Our Constitution did not envisage a situation wherein both the President and his Vice will not be in control of the reins of Government at any time in our democracy.

The nation and the National Assembly had to act on time with this pragmatic approach lest the nation be over heated and disintegrate.  The Bauchi and Jos crises have already taken their toll on the nation already.  And the listing of Nigeria on the United State’s Terror Watch List was completely destroying any value left in our green passport in the eyes of the comity of nations.   Above all, the Niger Delta and post amnesty questions has resurfaced with vehemence.  We needed to have a driver on the seat of Governance to move us out of this progressive retrogression.

If this is not done immediately, then Dr.  Jonathan as Acting President, and now Chairman of the Africa Union may not be able to travel out of this country nor proceed on any vacation, since he does not have a vice and no other authority can act for him as 2nd Acting President under the constitution. So we must now proceed to the next stage preferably through Section 144 and as a last resort through Section 143 of the 1999 Constitution.  However, the back and forth movement of the Executive Council and its Committee visits appear to raise more questions than answers.

In retrospect, the Executive Council’s actions were in reaction to the commencement of contempt proceedings brought by the articulate Ajulo Esq through the issuance of Form 48 on all the 31 ministers of the Executive Council of the Federation to comply with the Judgment of Justice Dan Abutu  delivered on 22/1/2010 in the Case of Aliyu Farouk & Ors. Vs AG of  Federation & Ors. Acting President Dr.  Jonathan should embark on redeeming our battered image in the eyes of the comity of nations.

In the meantime, we challenge Dr.  Jonathan, to focus with pragmatic speed on redeeming the image of Nigeria abroad as well as put back on course the post amnesty programme to save our youth and freedom fighters from oppression, hunger, abandonment and poverty. Having listened to the voice of Government and surrendered their arms, it was therefore irresponsible for Government not to deliver on its promise.  That was why I insisted during the amnesty interactive session at Warri, that Government should also sign an undertaking to us to be truthful and honest in its implementation of the Post Amnesty Programme.

The arrival of Mr. President from Saudi Arabia into the chores of Nigeria has drawn various reactions.  However we are glad that he has arrived safely and back. Nevertheless, for our President to return to his seat, he has to send a written declaration to that effect as set out in the Senate resolution and in furtherance to Section 145 of the 1999 constitution which provides that: “Whenever the President transmits to the President of the Senate and the Speaker of  the  House  of  Representative  a written declaration that he is proceeding on vacation  or  that he is otherwise unable to discharge the functions of his office, until  he  transmits  to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President”.

If he does this, then it will be lucid that he has assumed the reins of office again and Dr. Jonathan will revert to the status of the Vice President of the Federal Republic of Nigeria. It must be emphasized however that until the President complies with the above, Dr.  Jonathan will continue to be Acting President. As a proposition for amendment of Section 145, we suggest that we take a look at Section 60(8) of the Constitution of Ghana 1992.

That Section provides in relation to the assumption of power by the Vice President that, “whenever the President is absent from Ghana or is for any other reason unable to perform the functions of the office, the Vice President shall perform the functions of the President until the President returns or is able to perform his functions.”

Experience being the teacher of hindsight, we hereby recommend to the National Assembly committee on the review of 1999 constitution, to amend Section 145 to read,  “whenever the President is out of the country for an unbroken period of 14 days either for vacation or otherwise incapable of discharging the functions of his office, he  shall transmit to the House of Representatives and Senate a written declaration to that effect, within 14 days, thereof to enable the Vice President become the Acting President.

Provided that if the President fails to comply with this Section after 14 days whether he is within or outside the shores of the country, the National Assembly shall by simple majority pass a resolution authorizing the Vice President to be the Acting President until the President  is examined as well as certified fit  by a medical team set up in accordance with provisions of Section 144 (4) of the Constitution to effect that he can thereafter perform the functions of his office.”

Be that as it may, the recommendations on amendment as above noted may help our lawmakers and Nigerians who are yearning earnestly not only for the amendment of our Constitution, but indeed for the urgent amendment of the “Nigerian Character”.


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