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Going all the way with Goodluck

Stories by Chioma Gabriel, Deputy Editor

After months of political wrangling and constitutional debate over President Yar’Adua’s absence and its consequences for the country, the national assembly last Tuesday resolved that Vice President Jonathan with immediate effect becomes the Acting President pending  Yar’ Adua’s recovery and return to the country.

The resolve by the two legislative chambers was borne out of the doctrine of necessity which compelled a creative interpretation of section 145 of the 1999 constitution which stipulates that the president must transmit a letter to the President of the senate and Speaker of the House of Representative asking that due to his incapacitation, the Vice President should become the Acting President.

In Yar’Adua’s case, no letter was transmitted to the national assembly before he was flown to Saudi Arabia November last year where he is still receiving treatment.

However, he granted an interview to the British Broadcasting Corporation, BBC, where he admitted that he is ill and taking treatment and cannot return home until his doctors say so.

Based on this transmission, the national assembly last Tuesday unanimously resolved that Vice President Jonathan becomes the acting president interpreting that the BBC broadcast just like the required letter to the national assembly is a permanent medium of transmission through which President Yar’ Adua admitted his incapability to continue as  the President at the moment.

Acting President Jonathan  has resumed  duty immediately but a fresh constitutional debate over his emergence has commenced as the resolve of the national assembly was declared unconstitutional and illegal by some lawyers.

But in these encounters with Saturday Vanguard, Senior Advocates of Nigeria are drumming support for the Acting President insisting the creative interpretation by the national assembly of section145 was borne out of necessity to save the country from the absurdity   which section 145 of the 1999 constitution was posing.    Read on. This is a special bumper edition.

HowArmy, Police made it possible — Akinjide

Chief Richard Akinjide (SAN), was a member of the judicial systems sub-committee of the Constitutional Drafting Committee of 1975-1977 and later joined the National Party of Nigeria in 1978. He became the legal adviser for the party and was later appointed the Minister for Justice.

Akinjide... Necessity has come to play

This constitutional lawyer in this encounter says the Doctrine of Necessity warranted that the former Vice President, Goodluck Jonathan becomes the Acting President. Excerpts:

Is anything constitutionally wrong with the resolve that the VP becomes the Acting President?

The action of the Nationally Assembly is correct and appropriate. They based their action on the doctrine of necessity. That is appropriate. But there is another doctrine which must be linked up to that and that is the doctrine of efficacy. If something is very strange and it is not efficacious, the doctrine of necessity will save that. The doctrine of efficacy means all the instruments of coercion and administration must accept and fall in line with the doctrine of necessity.

In other words, the Armed Forces, the Police, the intelligence services, the civil service in particular, must accept the action  which warranted the necessity.

At the moment, all these institutions I mentioned appeared to have accepted the doctrine of necessity, the action which warranted the doctrine of necessity as stated by the National Assembly. That means that the action taken by the National Assembly is efficacious and therefore, by implication , the doctrine of efficacy has also fallen in place.

I salute the patriotic action of the National Assembly. The written constitution must not and cannot be interpreted like ordinary law, such as the law of contract or the law of will or the law of thought.

The doctrine of interpretation which governs a written constitution is totally different, from the doctrine of interpretation which governs ordinary laws. That is the accepted doctrine in the United States, Canada, Australia, India and Nigeria, and other African countries that operate written constitution.

So, this won’t create constitutional problems in future?

There is absolutely no cause for alarm. And it seems that Nigerians have come of age in matters of rule of  law. And I doff my hat and pay tribute to our armed forces, for their exemplary and patriotic behaviour in this crisis.
But was the BBC interview an appropriate …

No, no, no. Don’t bring that into the discussion. What I have said is totally different. The BBC interview is a pedestrian matter. Don’t spoil a good thing with the  BBC interview. What some our  lawyers are saying is not in order. Their arguments could be  misleading and they are approaching it wrongly but that is where we Constitutional lawyers differ. Some people just talk and talk and misunderstand the whole thing.

BBC interview not an issue— Yusuf Alli (SAN)
Yusuf Alli, SAN, also speaks on the Senate resolve to upgrade VP Jonathan to Acting President.

Is the procedure constitutionally right?

There is nothing unconstitutional about what happened, rather, it is the fulfilment of the provisions of the Constitution.

Was it right to have done that based on the BBC interview granted by Yar’Ádua?

They shouldn’t have even bothered themselves with that interview because under the doctrine of necessity and the law, the National Assembly could have done what it did without recourse to anything because of the Constitutional lacuna that occurred. So, as far as I’m concerned, the reaction of the people kicking against that was not necessary.

In future, don’t you think this issue would be referred to in a manner that could create Constitutional crisis?
If the same thing happens again, we have a precedent now. In any case, I trust that after this, necessary amendments should be made in the Constitution  to reflect the unforseen circumstances.

What has happened should be applauded because at the end of it all, we should have the ability to deal with all matters that could arise as a result of our constitutional arrangement and practice. A Constitution is subject to interpretations and could be fleshened up in the course of the interpretation .

What has happened has proved to the whole world that we could handle things on our own. The constitution is a living document. It is not meant to be as big as Encyclopedia Britannica. What the National Assembly has done was a fleshing up of the Constitution and it is a welcome development.


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