President Umaru Yar’Adua has both heart and kidney problems
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A Nigerian court has dismissed a call for an interim leader to be appointed while President Umaru Yar’Adua is in hospital in Saudi Arabia.
The high court said there was no constitutional requirement for him to formally write to parliament, informing them he is on “medical vacation”.
This would automatically lead to his deputy becoming acting president.
President Yar’Adua has been away for two months, raising fears of a power vacuum and calls for him to step down.
“The failure to transmit a written declaration to the national assembly before proceeding on vacation is not unconstitutional,” said federal high court judge Dan Abutu, dismissing the case brought by the Nigerian Bar Association.
The judge also said that Vice-President Goodluck Jonathan could continue to act on the president’s behalf, without needing to be formally appointed as interim leader – upholding a similar ruling in a previous case.
‘Not incapable’
On Wednesday, the Senate passed a resolution calling on the president to provide a formal letter informing parliament of his absence.
At the same, the cabinet issued a statement that President Yar’Adua was “not incapable” of running the country.
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YAR’ADUA ILLNESS TIMELINE
23 November 2009: Goes to hospital in Saudi Arabia
26 November 2009: Presidential doctors say he has pericarditis – inflammation of the heart lining
23 December 2009: First court case filed called him to step down
30 December 2009: Chief justice sworn in. Lawyers say this is illegal in president’s absence
5 January 2010: Two more court cases filed and a human rights group wants president declared “missing”
12 January 2010: President gives first interview since going to Saudi Arabia
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This followed a previous court ruling giving ministers two weeks to make such a declaration.
The president flew to Saudi Arabia in late November for medical treatment and has not been seen in public since.
In his only broadcast interview since he left the country, he told the BBC’s Hausa Service on 12 January that he would return to resume his duties as soon as his doctors would allow.
As well as the flurry of court cases brought by his opponents, crowds of demonstrators have sporadically taken to the streets in Abuja and Lagos demanding power be handed to Vice-President Jonathan.
Correspondents say one reason for Mr Yar’Adua’s reluctance to allow Mr Jonathan to act on his behalf is the ruling People’s Democratic Party’s tradition of alternating power between north and south.
Mr Yar’Adua is a northerner, while the vice-president is from the south. So if Mr Jonathan took over, that would shorten the north’s stay in power.
The president is suffering from an inflammation of the lining around the heart and has long suffered from kidney problems.
Yar’Adua: No room for offshore president –Court
The Chief Judge of the Federal High Court, Justice Dan Abutu, has declared it was against the spirit of the Constitution for President Umar Musa Yar’Adua to perform his presidential functions outside the shores of the country.
Besides, the court went further to hold that it was unconstitutional for the office of the President to be held in abeyance.
Justice Abutu gave this verdict in his judgment in the suit filed by the Incorporated Trustees of Nigerian Bar Association (NBA), its President, Oluwarotimi Akeredolu (SAN) and Ibrahim Eddy Mark (General Secretary).
The court, however, held that Section145 of the 1999 Constitution did not impose a duty on the President to transmit a written declaration to National Assembly whenever he is proceeding on vacation or is otherwise unable to discharge the functions of his office.
In the suit, the plaintiffs are challenging the refusal of President Umar Yar’Adua to write the National Assembly before embarking on a medical vacation in Saudi Arabia in line with Section 145. He is yet to return since November 23.
Justice Abutu dismissed the argument of the Attorney General of the Federation and Justice Minister, Mr. Michael Aondoakaa (SAN) that the plaintiffs lacked the locus standi to initiate the action.
He, however, held that Section145 of the 1999 Constitution did not impose a duty on the President to transmit a written declaration to National Assembly whenever he is proceeding on vacation or is otherwise unable to discharge the functions of his office.
According to him, no word or parenthesis imposing an obligation is used in the section.
“In the instance case, neither the word may or shall have been used. No word shows that that the president has a duty to transmit a written declaration,” the judge said, adding: “The duty of a court is limited to the interpretation of a status. Justice must be dispensed in accordance with law. I’m unable to come to conclusion based on the word used in the constitution that the president has a duty to transmit a written declaration to the National Assembly before proceeding on a vacation.
“That the president omitted to transmit a written declaration to the leadership of National Assembly is not a violation of the Constitution. There is no mandatory requirement to transmit a declaration to the National Assembly”. He held that Vice President Goodluck Jonathan could discharge the functions of the president as because the condition precedent has not been met.
He held that the doctrine of necessity cannot be invoked in the absence of the condition precedent. There is no basis for the court. While responding to the judgment, Aondoakaa said: “Every organ of government must recognize the Vice President as performing both the executive powers of the president delegated to the vice president on Mr. President’s behalf.”