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Yar’Adua cannot give what he doesn’t have

Looking at Section 5 of the Constitution especially in the light of the Umaru Yar’Adua saga it is apparent that we have unwittingly foisted on ourselves a king cloaked in the garb of a democratically elected President. So don’t blame Michael Aondoakaa for all the legal gymnastics he has been engaging in to keep Jonathan Goodluck as one exercising delegated functions, as he is also fighting to save his job as Attorney-General and Minister of Justice.

By Kayode Omose  

Looking at Section 5 of the Constitution especially in the light of the Umaru Yar’Adua saga it is apparent that we have unwittingly foisted on ourselves a king cloaked in the garb of a democratically elected President. 

The Constitution vests the legislative and judicial powers of the Federation on institutions, i.e., the National and State Houses of Assemblies, and the various courts of records starting from High Courts to the Supreme Court. 

On the other hand, the executive or implementing or action powers of the Federation are vested in the President, an individual who may choose to exercise those powers on his own or through many others amongst whom is the Vice-President. 

Another country that has opted to vest such monstrous powers in the office of the President is Liberia, the oldest independent and oldest democratic nation in Africa who for over 130 years has remained undeveloped and poor as the settlers and the locals perennially fight for control of that office. 

This explains why the power rotation principle has been adopted by the Peoples Democratic Party to give each region of Nigeria an opportunity of abusing the executive powers of the Federation, and why Umaru Yar’Adua is still clinging to power supposedly to protect the turn of the North of Nigeria. 

However, the wisdom of vesting such monstrous powers in an individual as opposed to an institution like a Presidential Council or even the Federal Executive Council will be the subject of future analysis, but it at least explains why Michael Aondoakaa is fighting to keep his boss as president. 

It also explains why some dread the thought of Jonathan Goodluck becoming Acting President for one minute because nothing stops him from dissolving and reconstituting the Federal Executive Council who can then pass a resolution declaring Umaru Yar’Adua unfit to govern Nigeria. 

So don’t blame Michael Aondoakaa for all the legal gymnastics he has been engaging in to keep Jonathan Goodluck as one exercising delegated functions, as he is also fighting to save his job as Attorney-General and Minister of Justice. 

Again this is not the main thrust of this analysis but when you examine the defense of Michael Aondoakaa in the case instituted by Femi Falana asking for Jonathan Goodluck to be empowered to act as President, you will think you are reading the recent judgment of Justice Dan Abutu in another case. 

Relying on Section 5 of the Constitution, both Michael Aondoakaa and Justice Dan Abutu say that Jonathan Goodluck can through delegation of power exercise the functions of the President without having to act as President. 

This places the Vice-President in the same class as Ministers of the Government and other officers in the public service but I will again choose to reserve my analysis of Justice Dan Abutu’s accelerated hearing and speedy dispensation of a case in a record six working days to another time. 

I choose instead to examine an aspect of Michael Aondoakaa’s legal submissions in the Femi Falana case regarding Section 145 of the Constitution which says the President can notify the National Assembly by a written declaration when he is proceeding on vacation or is unable to discharge the functions of his office. 

This should ordinarily pave the way for the Vice-President to discharge such functions as Acting-President but how or why or under what circumstances a Nigerian President will voluntarily declare himself as being unable to discharge the functions of his office is beyond my comprehension.

So let us concentrate on the vacation aspect of Section 145 of the Constitution, regarding which Michael Aondoakaa says that Umaru Yar’Adua has discretion on whether to transmit a written declaration to the National Assembly that he is proceeding on vacation. 

The assertion that the executive powers of the Federation can be vested in a vacationing President who in turn can delegate such powers under Section 5 is the basis on which he is asking the court to reject the reliefs sought by Femi Falana as nobody can compel Umaru Yar”Adua to exercise that discretion. 

Looking at the word ‘vacation’ in Webster’s New Encyclopedic Dictionary and Sections 5 and 145 of the Constitution, a President who goes on vacation whether or not he transmits a written declaration to the National Assembly ceases to have the executive powers of the Federation vested in him for the duration of the vacation. 

The word vacation means ‘a respite or a time of respite (an interval of rest or relief) from something (work or business); a period spent away from home or business in travel or recreation (refreshment of strength and spirits after toil, to give new life or freshness to, to create anew, restore, refresh). 

The issue therefore revolves around determining whether Umary Yar,Adua is on vacation, and what better proof of this than his 55 days continuous sojourn in Riyadh, Saudi Arabia where he is recuperating or resting or gathering strength or is being renewed in the comfort of a VIP Suite in King Faisal Hospital. 

The Constitution does not contemplate a situation where the executive powers of the Federation are vested in a President who is on vacation, respite or interval of time from work, or recreation, or undergoing a time of restoration, refreshing, or getting a new lease of life such as Umaru Yar’Adua. 

It also follows that a vacationing President who has not complied with Section 145 of the Constitution, has no powers to delegate to the Vice-President and Ministers of Government or officers in the public service and as such cannot come under Section 5 to exercise power by stealth. 

Unfortunately for Michael Aondoakaa and his boss, Umaru Yar’Adua, Nigeria is not like the United Kingdom that has no written constitution, and although the Nigerian Constitution may be inelegantly worded in some aspects, Section 5 does not provide relief for circumventing Section 145. 

This means that any exercise of delegated executive powers of the Federation by Jonathan Goodluck and Ministers of the Federation and other public officers since November 23, 2009 when Umaru Yar’Adua proceeded on vacation without notifying the National Assembly are null, void and of no effect. 

“We must be the change we want to see in the world.”  – Mahatma Gandhi