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Unshackling the interpretation of the 1999 constitution

By Awa Kalu, SAN

The events of the past couple of weeks, arising from the absence of the President (who is also the Commander-in-chief of the Armed Forces) on grounds of ill-health, has provoked a flurry of activities, and in its wake has generated multiple reverberations, which have threatened to impose a crack on our ill-managed and papered attempt at constitutionalism.

Acres of newsprint, tonnes of printing ink and several TV hours have been devoted to occasionally ill-informed attempts to analyse or lampoon, as the case may be, the efforts made by several concerned Nigerians and non Nigerians alike to ameliorate the situation.

Representations by various groups including traditional rulers, eminent persons, clergymen, newspaper proprietors, the civil society, the Governors Forum, the proverbial common man, etc, have provided a potpourri of alternatives.  In an effort to resolve the impasse, many lawyers in spectacular fashion recalled our undergraduate days of theorizing on the doctrine of separation of powers.

As we were told in those days, even though the three major arms of government are separate, the art of governance requires that they must interface and interact in order to deliver good government. There is no water-tight compartmentalization of governmental functions, we were eloquently told. How true this has proved in the President Yar’Adua health situation having regard to the options that have been explored by the executive, legislative and judicial branches to free us from the unnecessary gridlock.

This fortuitous experience has truly demonstrated the complexities associated with democratic governance in this country. Following the sensitivities of ethnic and religious balance, it is often difficult to toe the line indicated very clearly by the constitution. Consequently, within the relevant period under consideration, all the commentators, conscious of the fact that Mr. President is alive but unwell, have proposed and considered various solutions of differing consequences.

In the light of the vociferous disputation that has since erupted, three major sections of the Constitution which impact on the President’s tenure have come to the fore. While two of those sections would result in the cessation of the office of the President, the third would result in the translation of the Vice-President to Acting President (the path that was eventually chosen).

While struggling to understand why Nigerian politicians – civilian or military – often display a penchant for ‘obfuscating events that seem thread bare’, the words of a past but eminent political scientist seem to provide some illumination. Thus, Harold Laski, political theorist and philosopher in his book, ‘A Grammar of Politics’, noted that: “It is of course, vital to the structure of political philosophy that man should be not only a creature of impulses, but also the possessor of reason. He can reflect upon his conduct.

He can observe disharmonies, correlate means and ends. He can, that is to say, so observe the results of his activity as to rectify the ills from which he suffers by directing into them a principle of conduct that increases his chance of self-fulfilment. Where the tiger and the cuckoo hit upon that principle by accident, men can achieve its discovery by deliberate thought. It is here that there enters the concept of a social good.

For good, it must be emphasized, is either social or it is not good at all. If man is to live in community with his fellows, it is a necessary condition of his life that what he attains should, at least, in the long run, involve benefit also to others.” Harold Laski continues: “Social good, therefore, seems to consist in the unity our nature attains when the working of our impulses result in a satisfied activity.

It is a full response to the forces of human nature as this work in the lives of the myriad of men about us. The substance of that good may vary; a changing tradition implies a difference from age to age. As the body of our knowledge grows we become, at least as a matter of doctrine, the better able intelligently to organize the method and degree of response.

The unification that is achieved demands, of course, close scrutiny lest falsehood be mistaken for truth. In the long run for example, the desire to acquire property is hardly satisfied by the consistent flotation of fraudulent companies. What is rather wanted is a certain balance of forces within our nature that, when achieved, relieves the pressure of growing want and, more positively, makes possible the continuous satisfaction of initiative. It is not a question of attaining a static environment in which immobile habits may be satisfied.”

Laski then postulates that “All situations that we confront are ultimately unique and experiment is the condition for survival, since the same good never occurs twice, immobility in a changing world must spell disaster; and the unification we must seek is one that intelligently anticipates the future as it reasonably integrates the past.” Laski’s words may be interpreted in several ways but what one finds central to the excerpt above is that if man is to live in community with his follows, it is a necessary condition of his life that what he attains should, at least, in the long run, involve benefit also to others.

What this means in our view is that if members of the Federal Executive Council for instance, had put their best foot forward, perhaps this imbroglio would have been put behind us a while ago. Similarly, if the National Assembly had not been unduly long winding and obviously polarized, the dust and even heat occasioned by what looks easy (at least on the surface) could have been doused earlier than now. Now, what were the constitutional options open to the dramatis personae?

The first option arises by virtue of section 143 of the Constitution which empowers the National Assembly to remove either the President or Vice-President from office for gross misconduct. Having regard to the attempt by the Supreme Court in Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 423 to delineate reasonably, the previously wide arc of acts that may amount to gross misconduct, it is our view that an African legislator would thread carefully in canvassing unsolicited ill-health as gross misconduct.  Our inevitable conclusion is that all things considered, the option of impeaching the President would seem to flounder on our African sense of brotherhood.

The other option rests on the provisions of section 144 of the same constitution which enables the Executive Council to be forthright in determining the medical fitness of the President or Vice-President to continue on his job. A host of considerations, legitimate or illegitimate made it impossible for the Council to consider this option.

Just like the impeachment option, declaring the President unfit on medical grounds to discharge the functions of his office would have peremptorily terminated his tenure. Consequently, the Executive Council found itself debating something else – the Resolution passed by the National Assembly allegedly permitting the Vice-President to assume office as Acting President. We have used the word ‘allegedly’ advisedly for, as would soon be shown, the Executive Council had nothing to debate on. To concede that the Council could for instance, disagree with the Resolution would imply that the Council has a pervasive role under the Constitution. If the Council could not disagree, what then was the point pondering the imponderable?

The more important point at this juncture is that the National Assembly which could have acted by virtue of section 143 chose what it thought was an easier option, namely translating the Vice-President to an Acting President thus, saving the President’s job endlessly. The National Assembly acted pursuant to section 145 which makes provision for an Acting President during temporary absence of President. In order to be clearly understood, the text of the section is to the effect that ‘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 to 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’.

Our starting point will be to attempt an interpretation of the word ‘whenever’. The Chambers 21st Century Dictionary, Revised Edition, defines that word to mean ‘at any or every time that…’ In another context it could also mean ‘if ever, no matter when’. The meaning provided by the Stroud’s Judicial Dictionary, also appears to demonstrate that the word as in many cases, will take its meaning from the context in which it is used. According to the Dictionary, ‘where by a deed of appointment, certain property was directed to be held on trust for such of the children of the appointor’s two sons, “whenever born”, as should attain the age of 21, and if more than one in equal shares, it was held that the words “whenever born” were quite definite and meant that the class could not close until no further members could be born (Re Edmonson’s Will Trusts (1972) 1 WLR 183).

Our view is that ‘whenever’ in section 145 implies ‘from time to time’ in that within the tenure of four years or eight years, as the case may be, the President will be expected to be unavailable to discharge the functions of his office on several occasions. On such occasions, he is expected to transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office.

The Vice-President automatically assumes the office of Acting President and begins to discharge the functions of the office of President until such a time that the earlier written declaration is determined by another written declaration. The Senate Resolution therefore, is not an authorization or directive to the Vice-President to become the Acting President but simply an acknowledgement of receipt of the transmission from the President.

The present situation became complicated because the President did not transmit anything in writing to either the President of the Senate or the Speaker of the House of Representatives. Having regard to the ‘commotion’ that this issue raised in the polity, the National Assembly opted to be inventive in their appreciation and understanding of the requirements of section 145. Curiously, the two functionaries chose different paths that inevitably led to the same destination. While the Senate President relied on an earlier broadcast by the BBC of an interview which the ailing President granted that organization, the Speaker of the House of Representatives bowed to judicial authority.

To stir the legal hornet’s nest, the Senate President claimed that the doctrine of necessity compelled his actions. A number of commentators have upbraided the Senate President for daring to rely on a doctrine so restricted in its use but the material question at this time is whether, having regard to the constraining nature of the other options available via sections 143 and 144, the National Assembly could afford to wait for strict compliance with the letters of section 145? There is no doubt that there are hawks who would have exploited the dilly dallying to do something possibly more drastic than inventing some interpretation that suits the situation.

The emphasis must be on the fact that the judicial branch which is the final arbiter but definitely not the only arbiter of what our Constitution says has been ‘purposive’ or ‘inventive’ if you will, in wriggling out of tricky situations. There are decisions too numerous to mention that have brought succour when necessary because the Judiciary was alive to their responsibility having regard to the circumstances and the needs of the public interest. The interpretation of the Constitution is neither cake walk nor is an opportunity for strict constructionists to dance naked in the market square. Nafiu Rabiu v. The State (1981) 2NCLR 293 is a case fought meticulously and vigorously by two legal giants of blessed memory -Chief F.R.A. Williams, SAN and Chief Kehinde Sofola, SAN.

The Supreme Court similarly empanelled a strong Bench (coram: Udo Uduma, Ayo Irikefe, Chukwunweike Idigbe, Andrew Obaseki, Kayode Eso, Augustine Nnamani, and M.L. Uwais, JJ.SC) to unravel the thorny issues that arose for decision. Sir Udo Udoma, forewarned that ‘…the approach of this Court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. There are dicta in other judgments that predate Udoma’s. Thus, as far back as 1936, the Privy Council, which once served as the highest Court in this land, noted that: “The words used (in a constitution) are necessarily general and their full import and true meaning can often only be appreciated when considered as the years go on, in relation to the vicissitudes of fact which from time to time emerge.

It is not that the meaning of the words change, but the changing circumstances illustrate and illuminate the full import of that meaning”. See James v. Commonwealth (1936) 55 CLRI, 43. Similarly, in 1947 while interpreting the British North America Act 1867, the Canadian Constitution, the same Privy Council in Attorney-General for Ontario v. Attorney-sGeneral for Canada (1947) AC 127, 254 noted that “To such an organic statute, the flexible interpretation must be given which changing circumstances require…” More guidance may be seen in the speech of Lord Wilberforce in Minister of Home Affairs v. Fisher (1980) AC 319, PC in which he speaks of a constitutional instrument as sui generis and calls for a generous interpretation avoiding what he called “the authority of tabulated legalism”.

Perhaps, the huge egos of several lawyers would not have been bruised had the Senate President refrained from using the phrase “doctrine of necessity”. That doctrine however, has been applied in several cases as pointed out by several cerebral commentators. The cases include, The State v. Dosso PLD 1958 SC 533; Uganda v. Commissioner of Prisons ex parte matovu (1966) EA 540; Nalovu v. R (1968) SALR 515; Jilani v. The Government of the Punjab PLD 1972 SC 139; Madzimbamuto v. Lardner-Burke 1966 RLR 256; (1969) 1 AC 645 Attorney-General of the Republic of Cyprus v. Ibrahim (1964) CLR 195; Mitchell and others v. DPP & Anor. (1986) LRC (const.) 35 ETC.

The thread that holds a majority of the recent cases in which considerable attention has been paid to the doctrine of necessity is that they arose from developing countries, the third world. It is therefore, certain that in emerging democracies, there may be situations in which the different arms of government, mindful of the fractious nature of our multi-ethnic and multi-cultural realities may be called upon to ensure normalcy by taking steps that may not fit the populist worldview but nonetheless reverses a deteriorating political condition. It is our belief that until the Courts visit the acts of the National Assembly that institution ought to be applauded and not vilified for arresting a situation that could easily have turned out ugly. Some have argued that the emergence of an Acting President is but a temporary reprieve. Very well, but we may as well be reminded that half a loaf is better than none. Mr. Acting President, give us succour. Period.


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