ON CJN swearing in a new CJN

The Oath’s Act of 1990 provides in the second schedule the range of public officers that are required to take oath, nature of oaths and the corresponding public officials to administer the oaths. For instance, the Chief Justice of the Federation is required by that law to take oath of allegiance, to be administered by either the President of Nigeria or the Chief Justice of Nigeria. So is the AG, Michael Aondoakaa correct?

He is and he is not. He is if we apply the literal interpretation of the Oath’s Act.

He is not if we interpret OR as meaning in the absence of the President.

Well then if the Act says the CJ could, then he is right but He is not because Oath’s Act is supposed to be a secondment to the constitutional role. Having CJN, Oath’s Act stipulates that the president that appoints the CJN finishes up what he has started.

What am saying is that this matter would still be taken to court for interpretation

We could well validly assert that The Oaths’ Act vests the swearing duty in this instance on the president by tradition. The CJN option is a distant possibility. Is Aondoakaa by this, telling us that Yar’adua is now unable or incapacitated to perform his function?

We could also validly argue that the constitution does not explicitly say the president alone should swear in the CJ?


The Oath’s act also says the CJN could. Therefore the argument could be that the Oaths Act support the constitution and fills the lacuna. What the constitution provides for in the 7th schedule is the words of oath-taking. So the point could be made that the CJ by virtue of the Oaths Act could swear in a new CJ, perfectly legal!

We are talking legality here, the question is this: Could present CJ swear in a new CJ in law?

But look at this scenario: Assuming the CJN is dead and a new CJN is to be sworn in, who does that?

The president

If a CJN is dead, obviously acting CJN is appointed. Then, in the event that a substantive CJN is to be sworn, is it the acting CJN that should swear him in?

Not necessarily

So what we are angry at is this: Does it mean that Yar’adua is now incapacitated not to perform his function again? If yes, let him notify the National assembly so that the VP could assume those functions. It is barbaric though legal that we have VP who should be discharging the functions of the President and yet the CJN is performing a function that he should be doing.

It is a grotesque distortion of the law

They are looking at ways to prevent Jonathan Goodluck from assuming the reigns of governance.

Yes, the Oath’s Act permits the CJN to swear in another CJN but in the absence of the president. Is the president absent? Is the VP no more part of the president?


Yes, the AG may be right to say that the present CJN could legally swear in an incoming CJN…following from that, we could then look at the consequences of Yar’adua’s absence and failure to perform his presidential functions. That is why we are in court.

Aluko is right, It serves no purpose to argue that the AG is wrong in his assertion, what we could practically do is to look at the political consequences of the CJN swearing a new CJN while the president is still alive and where a VP has been acting in his stead, albeit without following the constitutional procedure.

Unbeknown to Aondoakaa, the implication of his position is that President Yar’adua is either absent (thus necessitating the invocation of Section 145) or incapacitated (necessitating the invocation of Section146)! 

In Defence of the Vice-President, in the Absence of the President Doing the Right Thing 


Mobolaji E. Aluko, PhD


Burtonsville, MD, USA 

December 30, 2009

The essay reproduced below by Sylvester Udemezue (Esq.) [“When the Vice President can act during President’s absence”, The Sun, December 30, 2009]  is reasonable in many parts, but it unfortunately blames the Vice-President unfairly in the present crisis, a person who I believe has been acting very prudently and constitutionally as his office requires.


In the absence of the invocation of Section 145 of the 1999 Constitution, there is no “Acting President” in Nigeria, and the Vice-President cannot and should not pretend to be one, EXCEPT under the Doctrine of Necessity – and he better be sure of that.  The difference between an “Acting President” and a “Vice-President” is really that there is NOTHING the Acting President CANNOT/SHOULD NOT do under the powers given to the substantive President, while there is NOTHING the substantive President CAN/SHOULD do (short of writing a letter to ask for his powers back) while the Vice-President is “Acting President.”  In short, there CANNOT be two persons “acting”, directing the affairs of state,  as President at the same time.   

On the other hand, a Vice-President can ONLY do those things 

(1) STATUTORILY assigned to him in the Constitution;

(2)  specifically designated to him by the President;

(3) TRADITIONALLY/OCCASSIONALLY done by the Vice-President in the past in the normal course of the presence OR absence of the President if, under some unusual circumstance, the President was UNABLE to specifically designate certain duties to him

(4) under the Doctrine of Necessity. 

There is no argument about the first two situations.  In the third case, the Vice-President MAY or MAY NOT choose to do those acts without specific designation by the President EVEN if he has done them before.  He may then be accused of cowardice or dereliction of duty, but cowardice is not unconstitutional, and the dereliction of duty charge, while political,  would probably not stand legal muster. 

The fourth case is the dicey one, for this can be done either under legal advice from the designated officer (eg the Attorney-General)  and/or an assurance of general acceptance by those who he must direct to obey him.

Some three germane examples will suffice, all based on the premise that the substantive President is INCAPABLE of carrying out his normal function in each of the examples for whatever reason(s), and the Vice-President, not designated as “Acting President”, has to make a determination whether to act or not. 

Take the issue of chairing the Federal Executive Council’s regularly-scheduled bi-weekly meetings. The Vice-President is not constitutionally charged to do so, but even a healthy president has designated the VP a number of times to chair the FEC.  So even if for whatever reason, he is not specifically mandated to chair a particular or set of FEC meetings, he acts within the reasonable expectation of his office as Vice-President to chair the meetings in the forced absence of the President.  It will be hard to sustain a charge that decisions from that meeting are illegal. 

Consequently, I believe that the Vice-President has been acting properly and wisely and legally in chairing the FEC meetings. 

Another example is the swearing in of the Chief Justice of Nigeria.  Since the President nominates the CJN, and he was confirmed by the Senate, it would appear trite that the Vice-President, already knowing the sentiment of the President, should be able to swear in the CJN if the President were the ONLY person permitted to swear the CJN in.   In this case, however,  the Oaths Act [see ] designates either the President or the CJN (it can only be the CURRENT CJN) to swear in the CJN (this can only be an INCOMING CJN).  Now the VP is not constitutionally mandated to do so, and he has NEVER been specifically designated to do such an act before.  In fact, the language of the Second Schedule of the Oaths Act shows that the President CANNOT authorize ANYBODY – not even the Vice-President – to do this job of swearing in the CJN for him, since there is language in this Second Schedule for certain positions requiring oath-taking that specifies for the oath-tenderer to be  “officers authorised by the President” or “The President or a person authorised by him”, a flexibility that is MISSING when it comes to the swearing in of the CJN.  If the law had intended that flexibility, it would have specifically mentioned it. 

It therefore means in the absence of the substantive President or “Acting President” , it is ONLY the present CJN (or whoever is Acting CJN) – and no one else –  who can swear in the incoming CJN.  Now in order not to have two CJNs at the same time, clearly the TENURE of the outgoing CJN must AUTOMATICALLY cease the minute the incoming CJN completes his Judicial Oath with the statement “So Help Me God”.  No constitutional crisis need be generated thereafter concerning the co-existence of two CJNs.  In any case, if any legal furore is raised over the matter as to a one-second, one-minute, one-day or thre-day co-existence of two CJNs, by the time the matter winds its way through the courts, the matter would be moot. In any case, what harm has been done? Furthermore, since it is conceivable that the matter could end up in the same Supreme Court, one wonders how or whether that court would rule in a matter so intimately concerning itself in which no harm has really been done.   

The bottom-line here is that it is not a battle worth fighting.  Let the current CJN swear in the incoming CJN, and the Vice-President should stay out of it. 

The third example is the issue of signing a Budget Bill – either a Supplementary Budget Bill one or a substantive Annual Budget Bill. Again, the VP is not constitutionally mandated to sign any bill, neither has he done it once before under designation by the President.  He is therefore left at the mercy of the Doctrine of Necessity, which decision must have three components: time, urgency and consequence of inaction.  Any Budget Bill covers a particular period of time, with the Annual Bill being over a 12-month period, and a Supplementary Bill over a shorter-period of that same 12-month period.  The urgency comes about with respect to whether the bill should (or is traditionally) passed BEFORE the period in question, early enough during the period in question – or has sometimes been the case in Nigeria – way into the period in question, sometimes as late as five or six months into the Annual Bill cycle.  The consequence of inaction might stem from the lack of a continuing expenditure clause which permits expenditures (for example) at the same level of the last budget UNTIL a new budget is passed. 

What this means under the Doctrine of Necessity is that a Vice-President might not/ should not RUSH to sign a Budget bill if the TRADITIONAL or even one-time length of period over which past budgets have been negotiated before signing it has not been reached.  Under the Doctrine of Necessity, therefore, it is prudent to PUSH the time-limits of action, so that politically you are not perceived to be power-hungry and too eager to usurp the powers of the President.  When that time trigger occurs, it is then most likely that it will be at the urging of the official legal officers, and those who must obey your acts without legal question will be much more ready to do so. 

In the particular case of Nigeria’s supplementary budget, I understand that its time limit has been extended to March 31, 2010.  I would advise that by end of January, if the substantive President is still missing in action, the Vice-President should sign it under the doctrine of necessity, whether he has been designated Acting President or not.  However he should not sign the Annual Budget until April or May 2010 since Budget signings have been delayed that long even in the presence of healthy presidents.

Finally, it is unfortunate that our present PDP government and its Presidency are acting at the edges of the law.   Not all what is legal is always prudent.   Almost forty days away from Nigeria under a serious medical condition, the President should by now have invoked Section 145 to designate his VP as the Acting President – as President Regan did in the United States in 1985 and Bush did in 2002 – so that all of this second-guessing would not have been necessary.  That is the responsible thing to do.  If he could not do so BEFORE he left for Saudi Arabia –  he reportedly suddenly took ill, collapsed and had to be rushed abroad – then certainly the same strength that he mustered to sign the Supplementary Budget  Bill yesterday should have been used to sign a hand-over bill once-and-for-all.

Finally, although it should not have been necessary, it might require that for the future, a stipulation be put in our Constitution MANDATING a president to hand over to the Vice-President as “Acting President” if a medical procedure involving sedation is elected; or that a Vice-President automatically becomes Acting President whenever such a situation is determined to be the case; and/or if a President is away from Nigerian soil for whatever reason for more than twenty-one calendar days.  Based on the circumstances which surrounded Israeli Prime-Minister Ariel Sharon’s own continuing incapacitation (see below), we may also wish to simplify our laws to avoid the FEC and National Assembly determinations of “permanent” or even “temporary” incapitance. 

I rest my case. 

Bolaji Aluko, Esquare 



Information on Ariel Sharon 

Stroke of December 2005

On 18 December 2005 Sharon was sent to Hadassah Medical Center after suffering a mild stroke, specifically a relatively unusual type called a paradoxical embolism, in which a clot from the venous circulation crosses over into the arterial circulation through a hole between the right and left atrium called an atrial septal defect (or a patent foramen ovale) and goes to the brain, causing a transient speech and motor disturbance…………..

Stroke of January 2006

On 4 January 2006, in the evening before his catheterization, Sharon suffered a second, far more serious stroke at his Sycamore Ranch in the Negev region. A “massive cerebral haemorrhage” led to bleeding in his brain which doctors eventually brought under control the following morning after performing two separate operations. After the first operation, lasting seven hours, Hadassah Director Shlomo Mor-Yosef reported Sharon’s bleeding had stopped and his brain was functioning without artificial support.[32] After a second, 14-hour surgery, Sharon was placed on a ventilator and some reports suggested that he was suffering from paralysis in his lower body, while others said he was still fighting for his life. He was placed in an induced coma and his Prime Ministerial duties were handed over to his deputy, Ehud Olmert. On Friday, 6 January, Sharon was brought back into the operating theatre after doctors reviewed the results of a brain scan. Hospital officials declined to comment on these reports. 

On the night of Sharon’s stroke, in the wake of his serious illness and following consultations between Government Secretary Israel Maimon and Attorney General Menachem Mazuz, Sharon was declared “temporarily incapable of discharging his powers.” As a result, Ehud Olmert, the Deputy Prime Minister, was officially confirmed as the Acting Prime Minister of Israel. Olmert and the Cabinet announced that the elections would take place on 28 March as scheduled. 

On 9 January, Haaretz reported that while performing tests on Sharon while treating his second stroke, doctors had discovered he was suffering from undiagnosed cerebral amyloid angiopathy (CAA), a brain disorder which, in conjunction with blood thinners prescribed after his first stroke, greatly increased his risk of cerebral hemorrhage. Although some have insinuated that this news represents a failure on Hadassah’s part to provide adequate care for Sharon, CAA can be very difficult to accurately diagnose, and is often only discovered after an individual suffers a brain hemorrhage. The following day, newspapers reported that Sharon’s CAA had actually been diagnosed following his first stroke in December. This was confirmed by hospital director Mor-Yosef who commented that “Hadassah physicians were aware of the brain diagnosis, and no new diagnosis has been made during the current hospitalization.” Mor-Yosef declined to respond to criticism of the combination of blood thinners and a CAA diagnosis, though Haaretz quoted some doctors as saying the medication led to the second stroke and that it would never have been given if doctors had known about his brain condition.[33] 

Sharon underwent subsequent surgeries the following month. On 11 February 2006, doctors performed emergency surgery to remove 50-cm of his large intestine that had become necrotic, probably because of a blood clot.[34] On 22 February, he underwent an additional procedure to drain excess fluid from his stomach, discovered during a routine CT scan.[35] 

Replacement by Ehud Olmert

According to Israeli law, an Acting Prime Minister can remain in office 100 days after the Prime Minister has become incapacitated. After 100 days, the Israeli President must appoint a new Prime Minister. At the time of his stroke, Sharon enjoyed considerable support from the general public in Israel.[38] The new centrist political party that he founded, Kadima, won the largest number of seats in the Knesset elections held on 28 March 2006. (Since Sharon was unable to sign a nomination form, he was not a candidate and therefore ceased to be a Knesset member.)

On 6 April, President of Israel Moshe Katsav formally asked Ehud Olmert to form a government, making him Prime Minister-Designate. Olmert had an initial period of 28 days to form a governing coalition, with a possible two-week extension.[39] On 11 April 2006, the Israeli Cabinet deemed that Sharon was incapacitated. Although Sharon’s replacement was to be named within 100 days of his becoming incapacitated, the replacement deadline was extended due to the Jewish festival of Passover.[40] A provision was made that, should Sharon’s condition improve between 11 April and 14 April, the declaration would not take effect. Therefore, the official declaration took effect on 14 April, formally ending Sharon’s term as Prime Minister and making Ehud Olmert the country’s new Prime Minister. 

Subsequent care

On 28 May 2006, Sharon was transferred from the hospital in Jerusalem to a long-term care unit of the Sheba Medical Center in Tel HaShomer, a large civilian and military hospital. Ha’aretz reported that this move was an indication that Sharon’s doctors did not expect him to emerge from his coma in the foreseeable future. Dr. Yuli Krieger, a physician not involved in Sharon’s case, told Israel Radio that the chances of waking up after such a lengthy coma were small. “Every day that passes after this kind of event with the patient still unconscious the chances that he will gain consciousness get smaller,” said Krieger, Deputy Head of Levinstein House, another long-term care facility.[41] 

On 23 July 2006, CNN reported that Sharon’s condition was deteriorating and his kidney function was worsening.[42] On 26 July 2006 doctors moved him to intensive care and began hemofiltration.[43] On 14 August 2006 doctors reported that Sharon’s condition worsened significantly and that he was suffering from pneumonia in both lungs.[44] On 29 August, doctors reported that he had been successfully treated for his pneumonia and moved out of intensive care back to the long-term care unit.[45] 

On 3 November 2006, it was reported that Sharon had been admitted to intensive care after contracting an infection, though doctors insisted that his condition was ‘stable’.[46] He was moved out of the intensive care unit on 6 November 2006 after treatment for a heart infection. Doctors stated that “his heart function has improved after being treated for an infection and his overall condition has stabilised”.[47] 

In 2006, there were reports that Austrian and Israeli police were investigating Martin Schlaff and Robert Nowikovsky of illicit payments to Sharon.[48][49][50] 

Sharon has remained in a long-term care centre since 6 November 2006.[51] Medical experts have indicated that Sharon’s cognitive abilities were destroyed by the massive stroke, and that he is in a persistent vegetative state with slim chances of regaining consciousness.[52] 

On 13 April 2007, it was reported that Sharon’s condition had slightly improved and that according to his son, Omri, he was marginally responsive.[53] On 27 October 2009 his doctor reported that he is still comatose but in a stable condition.[54]


When the Vice President can act during President’s absence
 By Sylvester U demezue

Section 145 of the Constitution of the Federal Republic of Nigeria provides 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 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.”

The section does not say what happens in a situation where the President fails or refuses to transmit such written declaration, especially in view of the fact that there must never be a vacuum in the office —- nature abhors vacuum; Law abhors vacuum; even reason abhors vacuum? For instance, assuming the President suddenly takes ill and is rushed to a hospital in a coma, and he remains in that condition for long, should the affairs of State stand still as a result, until the President comes out of his coma, for the reason that he failed to transmit such written declaration as envisaged by section 145 and that the Federal Executive Council is yet to invoke section 144 of the Constriction, to empower a Panel to investigate whether the President has become permanently incapacitated? The answer, in my humble view is, No! In such situations, the true position is that in between the President`s absence without complying with section 145 and in the invocation of section 144 by the FEC, the VP is entitled and indeed does have a duty under the doctrine of necessity to stand in for the President and discharge the functions of the President`s office on the President`s behalf.

He performs such functions not as Acting President, for he has not been crowned one, but as a Vice President whom the Constitution envisages at all times to step into the shoes of the President if a vacuum is created by the action or inaction of the President; otherwise there would be no need in the first place for section 141 of the Constitution which states as follows — there shall be for the Federation a Vice-President. In fact, it is obvious that Vice President Goodluck Jonathan has been discharging some functions of the office of President since Alhaji Yar`adua departed Nigeria on medical grounds —- he has been presiding over FEC meetings, welcoming State House visitors, and attending to some other State functions all on behalf of the President.

The only problem is that the VP, either out of sheer cowardice or for fear of being accused of being too forward, has himself chosen not to perform certain functions of the President`s office, and quite erroneously so in my humble view. The VP has a duty as aforesaid to act for the President under the doctrine of necessity, to avoid a vacuum, especially as the Constitution does not provide for how to handle situations such as this one. This being the case, it would follow that no action of the Vice President while so acting is invalidated on grounds of non-compliance with section 145, as the very reason for the establishment of the office of Vice President for the Federation is to ensure no vacuum in the leadership of the nation.

My humble view therefore is that since there is a lacuna in the Constitution as regards the solution for a situation, such as the present one, where the President fails, due to ill-health, to comply with section 145. We already know that even as it is now, the President does not cease to hold office pursuant to section 144 until he is certified to be “suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office,” under section 144 (2). However, if the FEC feels the President’s absence has stretched for so long as to make them believe he may no longer be able to continue as President, the FEC can then invoke the provisions of 144. But let me quickly point out that invocation of section 144 is entirely at the DISCRETION of the Federal Executive Council. It cannot be compelled by a court of law in this respect. But in the midst of the confusion created by the present situation, which is not contemplated by the Constitution, the VP is both entitled and in duty bound to act in the President`s stead, pending the action of the FEC or the President`s return.

Where the President has deliberately abandoned his duty-post, sections 144 or 143 would apply; the President cannot hold the nation to ransom — the nation is bigger than he. But where the situation is not deliberate such as it is now, the VP can validly act. If under section 146 (1), “the Vice-President 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,” it necessarily and reasonably follows that where the President is for reasons of ill-health absent for a while, the Vice President must continue to act on behalf of the President, being the number two citizen, the second in command, pending the President`s return (in which case the President continues from where the VP stops) or pending the invocation of section of section 144 or until any of the events mention in section 146 happens, in which case the VP shall be sworn in as President.

There are therefore three scenarios in which the Vice president shall be in duty bound to perform the functions of the office of the President of the Federal Republic of Nigeria. The first is where the President complies with section 145; in this instance, the VP shall assume the status of Acting President and continues to perform the functions of the office of President until the President transmits a written declaration to the contrary.

The second is where the President is impeached or section 146 (supra) applies; here, the VP shall automatically assume the status of, and be immediately sworn in as, the Executive President, and appoint another VP. The third scenario, which is what applies in the instant case, is a situation where the President for any reason is absent and fails to transmit a written declaration as required under section 145; in such a case, which is not contemplated by the Constitution, either of two things must happen —- if the President is hale and hearty and has deliberately abandoned his duty post without complying with section 145, he may be impeached, except section 144 is invoked; but if his absence is on grounds of ill-health and his failure to transmit the written declaration is therefore not deliberate, the only reasonable thing to do is that the VP must stand in for him until he returns or until section 144 is invoked or the office of the President becomes vacant pursuant to section 146.

There are three reasons the VP must so act in the last scenario —- he alone is empowered to replace or stand in for the President in times like this; the fact that the President has failed to comply with section 145 and the FEC is yet to invoke section 144 has raised the doctrine of necessity, which empowers as well as imposes a duty on the VP to act till further notice, to avoid a vacuum, and so that the affairs of state are not ground to a halt. It was this same doctrine that necessitated General Agui-Ironsi`s taking over the mantle of leadership in 1966 in the aftermath of the Nzeogwu coup

In conclusion, it is my humble view that while the VP is in duty bound to automatically stand in for the President in situations such as this, it is high time the Federal Executive Council initiated moves under section 144 of the Constitution, so that a medical Panel can be constituted to look critically into the President`s present state of health with a view to determining whether or not the nature of his ailment is such as has rendered him permanently incapable of discharging the functions of his office, in which case the VP would be sworn in as President without any delay. In this way, and only in this way, the present tension, uncertainty and near-confusion foisted on the nation by the President`s present absence on health grounds would be defused once and for all.

This particular action has now more than ever before become indispensable in view of the Vice president`s refusal, though erroneously, to stand in for the President in certain matters while acting in some others. In the final analysis, it is the VP`s failure to discharge duties thrust upon him under the doctrine of necessity in a situation not covered by the 1999 Constitution, rather than the President`s ill health (any one can take ill at any time), that has put the Nigerian nation into the present quandary. So, rather than quarrel with the President for his failure to comply with section 145 of the Constitution (which we cannot even say was deliberate, considering the circumstances surrounding his departure for the Saudi Arabian hospital), Nigerians should hold their Vice President responsible for his deliberate refusal to do what he must do as the second in Command under the Constitution. Since under section 5 (1) of the Constitution, the executive powers of the country shall be discharged by the President of the Federal Republic either directly or through the Vice President and the Ministers, it would not be out of place to suggest that, as the next person to the President, the Vice President has a duty to act in any situation where the President is absent and unable to discharge the duties of his office.
By: Udemezue, Sylvester C Esq. (udems)
Lecturer, Nigerian Law School, Lagos
udemsyl@…, udemsyl@…, mrudems@…

0803 913 6749, 0802 136 5545, 0805 927 5304, 0702 373 3133