Controversy over Jonathan Goodluck; the Way Forward

Has the process stated in Section 144 of the 1999 constitution in respect of declaring a president incapacitated begun?

nigeria should respect the constitutionThe Resolution by the Federal Executive Council of Nigeria to send another six-man delegation to Saudi Arabia is an evident demonstration that the expectation that the tension over Nigeria’s rudderlessness in the past 86 days may have thawed with the empowering of Vice President Goodluck Jonathan by both chambers of the National Assembly as Acting President and Commander-in-Chief of the country’s armed forces in the absence of ailing President Umaru Musa Yar’Adua is misplaced.

If anything, empowering the Vice President as acting president have opened a new vista of controversy as to the legality or otherwise of the lawmakers’ action, considering the express provisions of Sections 144 and 145 of the 1999 Constitution and heightened Nigerians curiosity as the actual health status of President Umaru Yar’adua.

As the Executive Council of the Federation (EXCOF) constituted a six-man team to visit ailing President Umaru Musa Yar’Adua in Saudi Arabia. many now ask, has the process stated in Section 144 of the 1999 constitution in respect of declaring a president incapacitated begun?

A plethora of court actions have introduced a new twist, the latest being a Form 48 filed against the newly appointed Attorney-General of the Federation, Prince Adetokunbo Kayode, and the entire members of the Federal Executive Council, FEC, for allegedly failing to comply with an order made by the Chief Judge of the Federal High Court Abuja division, Justice Daniel Abutu on 22 January, 2010.

The order directed the FEC to, within14 days, investigate and pass a resolution in line with Section 144 of the 1999 constitution, on whether or not the ailing President is incapable of discharging the functions of his office.

Another suit by a former minority leader in the House of Representatives, Mr. Farouk Aliyu Adamu and an Abuja based lawyer, Ataguba Aboje are asking the courts to declare the motion passed by the National Assembly recognising Jonathan as acting president, null and void.

Farouk was claiming that since Yar’Adua was not declared incapacitated by the Federal Executive Council (FEC), as demanded by Section 144 of the 1999 constitution, nor did he transmit a letter to the National Assembly of his intention to seek medical treatment abroad which would have automatically made Jonathan the acting president, as directed by Section 145 of the Constitution, the Vice President cannot be elevated to the position of an acting president.

Also, activists of the Save Nigeria Group (SNG), led by Prof. Wole Soyinka, and Pastor Tunde Bakare have called on the Federal Executive Council to immediately invoke Section 144 of the nation’s constitution to remove President Yar’Adua from office so that Jonathan can be declared full president.

Soyinka and others at the end of their meeting in Lagos said: “It had become imperative that a logical and constitutional process of installing Jonathan as President with a Vice- President must commence immediately with the Executive Council of the Federation passing a resolution declaring Yar’Adua incapacitated in compliance with Section 144 of the constitution.

“We insist that the session where the resolution would be taken must be beamed live on National Television.”

Meanwhile another Politician from Bayelsa State has instituted a court action praying the court to declare the office of ailing President Umaru Yar’Adua vacant in line with section 146 of the 1999 Constitution and to hold that “by the virtue of ‘death’, resignation or permanent incapacity of President Yar’Adua, the office of the president of the Federal Republic of Nigeria has become vacant within the meaning of section 146 (1) of the 1999 Constitution.

In the suit instituted by a legal practitioner, Mr Peremobowei Okele, Yar’Adua and Acting President Goodluck Jonathan and the Attorney-General of the Federation (AGF) were joined as defendants.

In his originating summons, the plaintiff asked the court to order Jonathan “to forthwith and without further assurance begin to exercise all the executive powers of the president of the Federal Republic of Nigeria conferred by section 5 (1) of the constitution of the Federal Republic of Nigeria, 1999.”

In the light of these controversies, the absence of Yar’Adua without any word on his current state of health, in spite of numerous trips by governors, lawmakers and Peoples Democratic Party (PDP) chieftains to Saudi Arabia, have created enormous pressure on the members of the Federal Executive Council to invoke Section 144 and solve the problem once and for all.

With what happened in the FEC Session yesterday, some ministers are caving in under pressure from groups and prominent Nigerians.

In spite of the fact that Jonathan has now been empowered as Acting President by the National Assembly, it was learnt that some are of the belief that the issue of the President’s health has to be resolved in the interest of the nation – for the FEC should invoke the relevant section of the constitution–Section 144–and declare the missing leader incapacitated so that Nigeria could move forward.

In the words of a member of FEC, “There was no need to keep deceiving Nigerians any further”.

Section 144 (1) reads: The President or Vice-President shall cease to hold office if –(a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice-President is incapable of discharging the functions of his office; and 

(b) The declaration is verified, after such a medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the President of the Senate and the Speaker of the House of Representatives.

Evidently, the action and outcome of it of the National Assembly has not signalled the end of the saga.  But in a Nation with tender-box ethnic, political and religious sensibilities as Nigeria, would the Federal Executive Council (FEC) muster the courage to set up a Board of Medical Enquiry to ascertain the President’s capability to continue in office

On the other hand, in view of Yar’adua’s failure to tender a letter of resignation formally to the National Assembly would he face impeachment from office for violating the constitution?

The extra-legal mandate handed to Jonathan to act as president is a dangerous precedent that could be taken advantage of by an over-ambitious National Assembly to oust a sitting president in the future. The legislature is not at all empowered to give itself magisterial powers to declare the Vice President an Acting President.

The latest development has also highlighted the imperfection of the 1999 Constitution, which gives room for so many loopholes, leading to this invocation of a doctrine of necessity to pass a questionable resolution that is unknown to our laws.

The crux of the matter here is the legality of the National Assembly’s interpretation equating the less than one minute British Broadcasting Corporation (BBC) interview with a man presumed to be Yar’Adua with a letter constitutionally required transmitting power from an incumbent President to a Vice President.

Section 145 of the 1999 Constitution regarding the matter, reads: “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.”

According to Professor Omo Omoruyi, “only Section 144 was and still the ONLY remedy to the crisis that faced the country over the incapacity of the President on health grounds.   The FEC can still go back to the Constitution.   What the National Assembly did should not be allowed to stand.   It is bad for our democracy and it is not in living in accordance with the Constitution.  

“If I have the opportunity to speak to the acting President from my sick bed, I would have advised him to initiate action along this line.   President Umaru Yar Adua is too ill to be expected to come back to office. Obasanjo said so. The PDP should summon its members of the FEC, the two leaders of the National Assembly to take action in accordance with Section 144 and make the Acting President assume office in accordance with the Constitution.

“It is a pity that some well meaning Nigerians had earlier taken to the law court and the streets of Nigeria using Section 145 to make a case for a change of baton in the past.   It is the same Nigerians who are asking that Nigerians should return to Section 144 because what took place in the name of the National Assembly was too bad for our democratic life.   I agree with them; it is not late for the FEC to return to the path of constitutionality.   The National Assembly has no role in who becomes the President in accordance with Section 144 of the Constitution.   Bringing in the names or offices of the Senate President and the Speaker of the House of Representatives does not mean the National Assembly.

“I want the former Vice President to assume the office of the President through the Constitutional means.   This is a legacy that he would lead behind.  The invocation of strange doctrine not known to our Constitution, called the “doctrine of necessity” was a coup justification in the past; now in the present and in the future, it is a recipe for disaster.  

Those who are propagating that Doctrine are not helping the Ag President to make history.   I wish I can help him make history; I’d say discard with that strange doctrine and take steps to go back to the Constitution. 

My most respected WS (Wole Soyinka) and General Alani Akinrinade, we must agree we made mistakes in the past.   It is a pity that Femi Falana and co played into the hands of the propagators of the Doctrine of Necessity in the past.   They were too much in a haste to proffer an extra-Constitutional l solution through the high court’s and the streets of Nigeria that you all now know has remedy within the Constitution.

I still want to go back to how the 25th amendment to the US Constitution evolved as a result of the massive heart attack of President Eisenhower..   It took over 10 years to evolve.   Section 144 is like the 25th amendment to the US Constitution.   We are too much in a hurry”. 

In my opinion, now that Jonathan has become Acting President, he must first work hand in hand with the Federal Executive Council and the National Assembly to correct the mistakes of his ascendancy to the office of Acting President, in line with the dictates of the constitution.

The task before him is truly daunting.

EXCOF had initially passed a resolution saying Yar’Adua was fit to continue in office without any medical statement to back its stance. But the National Assembly moved last week to pass a resolution empowering Vice-President Goodluck Jonathan as Acting President. 

The legislative arm relied on the doctrine of necessity and took the President’s BBC interview in January where he acknowledged he was ill and would return at such a time he is discharged by his doctors, as transmission of a vacation letter.

The action of lawmakers followed the failure of the President to transmit a medical vacation letter to the National Assembly in line with Section 145, which would have empowered Jonathan to step in as acting president. 

The step was also taken after a previous resolution by the National Assembly asking the President to send in the letter from Saudi Arabia where he has been hospitalized since November 23, 2009.

But the action has attracted law suits from some who say it is unconstitutional. Many argue that it sets a dangerous precedent because it is a contrived solution not backed by the constitution. 

Yet, others say the lawmakers have given Yar’Adua a soft landing by not starting the process of impeachment of a President that has, according to them, breached the law.

If indeed EXCOF declares the President incapacitated, it would have gone the whole hog constitutionally. 

The invocation of Section 144 would not only permanently resolve the logjam but would restore the esteem of Nigerians which had been badly damaged by all sort of lies which the criminal cabal had fed them within the last 86 days on the health of the President.

While we want Dr. Jonathan to assume full Presidential powers, his natural right by the constitution, we reject the extra constitutional invocation of the “doctrine of necessity,’’ which is a dangerous precedent that could become handy to execute an unpopular agenda against the people in the future.”

The fear is that Nigeria might once again been presented with a Shonekan who was kicked out unceremoniously by General Sani Abacha after a court declared the contraption he headed illegal in 1993.

Are we ready to go that route anymore again?