By Emmanuel AZIKEN, Abuja
The intervention by the National Assembly into the succession crisis that bedeviled the nation upon the medical evacuation of President Umaru Yarâ€˜Adua may have eased the tension in the countryâ€™s political space. However, outstanding issues arising from the procedure adopted in articulating the resolutions have also provoked the need for consolidating Dr. Goodluck Jonathan as the nationâ€™s acting President.
Central to the controversies being raised in the courts is the aptness of adopting the BBCâ€™s interview with President Yarâ€˜Adua on January 12, 2009 as his transmission to the National Assembly of his medical vacation as required by Section 145 of the Constitution.
Section 145 of the constitution stipulates thus:
â€œWhenever the President transmits to the President of the Senate and the Speaker of the House of Representatives 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.â€
The non binding effect of that constitutional clause and the lack of time specificity aroused the interest of Senator George Thomson Sekibo leading to his presentation of a bill, the Presidential Succession Bill in the Senate last June seeking to trigger succession in the event of a vacancy in the presidency.
The bill was, however, buried within the Senate system after the first reading last June supposedly not to provoke bad blood in the presidency on account of the health situation of President Yarâ€˜Adua who even at that time was known not to be in the best of health.
However, the crisis generated by the more than two month absence of the President from the country hasÂ refreshed reasoning for such a bill or other legal instruments to guide succession in the presidency in the event of a vacancy in the nationâ€™s highest office.
Though the bill was read for the first time in June 2009, it has according to Saturday Vanguardâ€™s findings been held back from further progression by the Senate leadership perhaps on account of the sensitivity of the issues involved.
The bill was last December re-channeled through the Senate committee on Constitution Review, understandably so, as some of the issues raised require tinkering with some provisions of the 1999 constitution.
â€œTo the ordinary mind, it may appear that the Constitution has fully provided for the order of succession to the Presidency, and as such no further addition is required. This would be a completely wrong assumption, because Constitutions by their very nature are meant to provide the general framework and guidelines of any system of government, and not the details of how such system should work in practice. Since no other relevant Act has been enacted by the National Assembly, and a review of the constitution is in process, it is necessary to include these details on how those guidelines should be carried out into effect,â€ the author of the bill submitted in his memorandum.
Giving specific keys to some lacunae in the presidential succession process as currently contained in the 1999 constitution, Senator Sekibo said in the memorandum to the bill:
2.00Â Â Â PURPOSE FOR AMENDMENT
The Office of the President is viewed passionately by our people, and for that singular reason, there is a grave compulsion on our part to lay the groundwork for a smooth passage of the baton whenever the need for succession arises.
2.01Â Â Â Nullification of election after swearing-in
Let us take a dispassionate look at the scenario where one and a_half years after the swearing_in of a President an election petition is still in court; and the election of the incumbent President is nullified. Indeed, the 1999 Constitution does not anticipate nor make any provision for the occurrence of such circumstance. I have perused it with ardent Constitutionalists and cannot find any provision that contemplates the nullification of a Presidential election and the vacation of offices by the President and Vice President at the same time.
2.02Â Â Â Time frame for swearing-in a successor
The issue of time frame for succession is not also provided for by the Constitution or contained in any enabling law. Should this aspect be left to speculation, and thereby causing unnecessary tension and apprehension in the polity? Where there are definite provisions of the law on the procedure to follow, the minds of the citizenry will be at rest whenever there is an occurrence of any of the circumstances described under section 143 and 144 of the 1999 Constitution. There should be concise provisions on the time frame for the swearing in of any successor to the Presidency.
2.03Â Â Â In the event of inadequacies of a sitting Senate President
Furthermore, the Constitution has placed on the President of the Senate the power to hold the Office of President whenever the Offices of the President and Vice_President become vacant due to any of the circumstances described in sections 143 and 144 of the same Constitution. The question is, what if the Senate President fails to meet the requirement set out in section 131 of the Constitution for the office of the President?
Indeed, this is a possibility, although not for the present Senate President, but for future Senate Presidents who may not have attained the age of 40 years. I recall that when Senator Joseph Wayas became the Senate President in the Second Republic, he was about 38 years old. The age requirement for election to the Senate at that time was 30 years and the age requirement for the President of the country was 40 years. Today the age requirement for Senate is 35 years and that of President is still 40 years. There could be a time when the senate would be made up largely of 36â€“38 years-old Senators. Shall we at such time contravene the age requirement provision in the 1999 Constitution? History has taught us that it is not healthy for any nation to remain without a leader for any length of time. Even nature abhors a vacuum.
2.04Â Â Â Time Limit for conduct of nullified elections
There is also the Constitutional provision that stipulates that when the Senate President holds office as President of the country, election should be held within the period of three months for a new President and Vice President. It is pertinent to ask this salient question, what should be the situation where an election fails to hold within this specified period due to unforeseen circumstances? I feel certain that the Constitutional provision in this area needs further consideration so that every loophole is carefully plugged.
3.00Â Â Â Lessons from older democracies.
In rounding off my submission, I want to crave your indulgence in citing the experiences of some older democracies on this subject matter.
3.01Â Â Â I wish to make specific mention of the experiences derived from the application of the United States Constitution which as originally adopted in 1787, was thought to have provided the most basic building block of succession procedures. But in 1792, during its second congress, the US Congress felt otherwise and passed the first Succession Order Act. The first test of Presidential Succession of the U.S. actually occurred in 1841. That was 49 years after the passage of its first Succession Order Act of 1792. That was when President William Henry Harrison died in April 1941 and Vice President John Tyler succeeded to the President. During that era, an important precedent was set, while a very crucial Constitutional question was settled.
3.02Â Â Â In 1886, another Succession Act was passed by Congress in order to ensure the line of Succession and guarantee that potential successors would be of the same party as the deceased incumbent.
3.03Â Â Â In 1945, when Vice President Harry S. Truman succeeded as president following the death of Franklin D. Roosevelt he proposed another Order of Succession billÂ which was passed by congress in 1947. It is important to note that the United State Presidential Succession Act of 1947 has been regularly amended by its Congress to incorporate new cabinet level departments into the line of succession, and this law currently remains in force.
3.04Â Â Â Prior to the assassination of President John F. Kennedy, the Constitution of the United States had no mechanism for filling the Office of the Vice-President after a Vice-President succeeded to the post of President, as a result of the Office being vacant by death, resignation, ill-health or removal by impeachment of the substantive President. And so, during the course of America â€™s Presidential System between 1789 and mid 1960s, the position of Vice-President of the country became vacant sixteen times, sometimes for longer periods.
3.05Â Â Â It was the assassination of President Kennedy in 1963 that galvanized US Congress to propose a Constitutional amendment that allowed vacancy in the Office of the Vice-President to be filled quickly. That provision is contained in the twenty-fifth Amendment of that countryâ€™s Constitution which was passed in 1967. It would appear that in formulating our 1999 Constitution, the framers took a cue from the twenty-fifth amendment, to the extent of including all the perceived defects of that amendment.
3.06Â Â Â The twenty-fifth Amendment which was tagged â€œPresidential disability and Vice-Presidential Successionâ€, was discovered by critics to contain a number of defects. According to the critics, the provisions were devoid of any time limit for the President to make his nomination for Vice_President, and on Congress to confirm the Presidentâ€™s Choice.
3.07Â Â Â Other perceived defects of the twenty-fifth Amendment was that its provisions did not define who are â€œthe principal Officers of the Executive departmentâ€, the majority of whom would decide when a President, â€œis unable to discharge the powers and duties of his officeâ€, thus allowing the Vice-President to become acting President. These and many more defects have now been taken care of through a law which was premised on the authority of the â€œelasticâ€ clause of their constitution.
3.08Â Â Â When the Presidential disability and Vice_Presidential Succession provisions of the twenty_fifth amendment of the United States Constitution was passed in 1967, it was not until 1973 that the provisions of that amendment was put to test. This occurred when President Richard Nixon had to resign and Vice_President Gerald Ford became President. He then proceeded to nominate Nelson A. Rockefeller as Vice_President.
3.09Â Â Â Earlier, during that era, the Vice-President to President Nixon, Spirow T. Agnew, had resigned from office, paving way for President Nixon to nominate Gerald R. Ford as his Vice-President. As a result of the Succession amendment, America found itself for the first time in its history of having a President and a Vice-President who were not elected by the people. The country did not break or suffer any crisis because democracy had been firmly and solidly established with a mechanism for succession that was obvious.
3.10Â Â Â The foregoing historical experience of the United States as regards its tinkering with the Presidential Succession Order, goes to show that there is a need to elaborate further on the Constitutional provisions in this subject matter.
4.00Â Â Â PROVISIONS SUGGESTED FOR AMENDMENT
4.01Â Â Â Time Specification in section 136(2)
Section 136(2) reads as follows:
Where the persons duly elected as President and Vice President dieÂ are unable for any reason whatsoever to assume office before the inauguration of the National Assembly, the Independent National Electoral Commission shall immediately conduct an election for a President and the Vice President.
Subsection (2) of Section 136 is amended by the addition after the words â€œimmediately conduct an electionâ€ the words â€œwithin thirty (30) daysâ€.
The new subsection 136(2) shall read thus:
Where the persons duly elected as President and Vice_President die or are unable for any reason whatsoever to assume office before the inauguration of the National Assembly, the Independent National Electoral Commission shall immediately conduct an election within 30 days for a President and the Vice-President.
4.02Â Â Â Time specification in section 140
Section 140 reads thus:
(1) A person elected to the office of President shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed in this Constitution and he has taken and subscribed the Oath of Allegiance and the oath of office prescribed in the Seventh Schedule to this Constitution.
(2) The oaths aforesaid shall be administered by the Chief Justice of Nigeria or the person for the time being appointed to exercise the functions of that office.
Section 140 of the Constitution is amended by the addition of the following new subsections (3) and (4).
Subsection 3. The oaths aforesaid shall be administered on May 29 of the year following an election year at 12.00 noon prompt.
Subsection 4. The person elected as President is deemed to have been inaugurated after 12.00 noon on the said date, as in subsection (3) of this section, even though he may not have subscribed to the Oath of Allegiance and oath of office and shall commence his duties and functions as President of the Federal Republic of Nigeria; while the aforesaid oaths be administered to him thereafter.
4.03Â Â Â Amendment of section 145
Section 145 of the Constitution reads as follows:
Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives 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.
Section 145 of the constitution is amended as follows:
By making section 145 as subsection 145(1) after deleting the word â€œwheneverâ€ and inserting the words â€œshallâ€ after the word â€œPresidentâ€.
The new subsection 145(1) shall read as follows:
The President shall transmit to the President of the Senate and the Speaker of the House of Representatives 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.
By the addition of a new subsection as subsection 145(2)
The Vice-President becomes an acting President whether there is a written declaration from the President or not, whenever the President becomes indisposed on medical ground for a period not exceeding 48 hours from when the President subjects himself to such medical attention and could not discharge his duties and functions from his office in the Federal Republic of Nigeria.
By the addition of a new subsection as subsection 145(3)
The Vice-President ceases as acting President whenever the President returns from such medical indisposition as contemplated in subsection 145(2)
4.04Â Â Â Amendment to section 146 is as follows:
Section 146 of the Constitution is reproduced hereunder:
(1) The VicePresident shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 of this Constitution.
(2) Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of the Senate shall hold the office of President for a period of not more than three months, during which there shall be an election of a new President, who shall hold office for the unexpired term of office of the last holder of the office.
(3) Where the office of VicePresident becomes vacant:_
(a) by reason of death or resignation, impeachment, permanent incapacity or removal in accordance with section 143 or 144 of this Constitution;
(b) by his assumption of the office of President in accordance with subsection (1) of this section; or
(c) for any other reason the President shall nominate and, with the approval of each House of the National Assembly, appoint a new Vice-President.
Subsection (1) of Section 146 is amended by the addition after the words â€œThe Vice-President shallâ€ of the words â€œbe administered to the oath of Allegiance and oath of office within 24 hoursâ€
The new subsection 146(1) shall read thus:Â The Vice-President shall be administered to the oath of Allegiance and the oath of Office of the President within 24 hours to hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 and 144 of this Constitution.
Subsection 146(2) is amended by the addition after the wordsÂ Â Â Â Â Â â€œthe President of the Senate shallâ€ of the wordsÂ Â â€œbe administered to the oath of Allegiance andÂ Â Â Â Oath of office within 24 hours toâ€
The new Subsection 146(2) shall read thus:
Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of the Senate shall be administered to the oath of Allegiance and oath of office of the President within 24 hours to hold the office of the President for a period of not more than three months, during which there shall be election of a new President, who shall hold office for the unexpired term of office of the last holder of the office.
Subsection 146 (3)(c ) of the Constitution is amended by theÂ addition after the words â€œthe President shallÂ Â Â Â Â Â Â Â Â Â Â Â Â Â nominateâ€ of the words â€œwithin seven (7) days of the death or resignation, impeachment,Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â permanent incapacity or the removal of theÂ Vice-President,â€ and the addition after the wordsÂ each House of the National Assembly of the words â€œwithin seven (7) days of presentationâ€