The 1999 Constitution of the Federal Republic of Nigeria is very unambiguous, yet the operators at the National Assembly, the restless civil rights groups, tribal mafias and cabals, etc have continued to breach its provisions. Whether this unfortunate breach of the constitutional provisions is related to ignorance, lack of time to study and understand, and or a deliberate attempt to confuse the ordinary Nigerian for personal gains, knowing that Nigerians do not read, I definitely cannot categorically pin-point the problem.
It will be recalled that at various times, I have had to write articles correcting the misinterpretation of the provisions of our statute by those who should know better and lead us aright. Among topical issues that I had written upon were: the judgment that gave victory to Mr. Yar’Adua at the 2007 presidential election, the Revenue Mobilization Allocation And Fiscal Commission’s revolutionary salary increases, the refusal of the Senate to allow a reduction in their allowances, among others.
In this issue, I wish to deal with another topical issue: the appointment of an “Acting President” on the basis of the 1999 Constitution. My belief remains that if Nigeria must make progress, it can only do so with a roadmap. The road map in this case is the Constitution. I have had to go through the Constitution over and over again to see if I can agree with many of those “vibrant” writers and speakers who organized rallies all over the country and those who have made contributions on the pages of newspapers, television shows, radio talks, etc.
On my sick bed, I listened with astonishment how a lawyer stated on Press TV, Focus Africa programme, that Section 145 of the Constitution “mandated” the President to write to the National Assembly of his absence as well as inform them that his Vice President will function as an “Acting President” during the period. Even just as I came to Lagos and while still recuperating, I had a discussion with an activist who had just returned from a mass rally in Lagos and was bumping with energy and zeal on the issue.
He cited the Constitution and mentioned so many lawyers including Senior Advocate of Nigeria (SAN) title holders, professors, etc who spoke in agreement that Section 145 “mandated” the President to act as earlier stated on Press TV. However, he was dumbfolded when I gave him a copy of the Constitution to prove my point. I am happy today that since after that event, every person now says that Section 145 does not mandate the President to appoint his Vice President as an “Acting President”.
For those who cannot lay their hands on the Constitution immediately, I wish to quote below verbatim the said Section 145 under reference. I quote: “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.”, unquote. Obviously, an interview relayed by one BBC World television programme on Mr. Yar’Adua’s indisposition does not qualify for a written declaration as provided under Section 145.
The argument by the National Assembly that a “Doctrine of Necessity” was used even made the issue a breach of the Constitution. Why? The Constitution does not recognize any “Doctrine of Necessity”. As such, any decision taken on the said “Doctrine of Necessity” is totally alien, unconstitutional and remains illegal. The National Assembly cannot stand to legalize illegality on the basis of an alien “Doctrine of Necessity”, no matter the acceptance that the foreign lords, most especially the American and British lords might have for it.
At best, the said BBC World interview qualifies for a declaration under Section 144 of Mr. Yar’Adua’s inability to discharge the “functions of his office” due to incapacitation and ought to have been verified. As provided under Section 144, a medical team of five comprising the President’s personal doctor and four other distinguished doctors should have been set up by the National Assembly to investigate the state of the President’s health and report back to them. It is such a report that would show whether or not Mr. Yar’Adua can continue in office as President.
It is only when the report pin-points permanent incapacitation that the National Aseembly can pronounce the Vice President as President. Details are provided in Sections 144 and 146 of the Constitution. But unfortunately, the National Assembly refused to follow this route, making the appointment of the Vice President as an “Acting President” questionable.
These is no Section of the 1999 Constitution that vests any power on the National Assembly to appoint an “Acting President” while the President is not dead, impeached, removed for being permanently incapacitated or has not resigned his appointment from office. If anybody has seen one, I like to know. There is also no evidence that Mr. Yar’Adua wrote to the National Assembly that he was going on vacation or for his treatment abroad thus fulfilling the condition required for Section 145 to make the Vice President an “Acting President”.
Only the President can appoint an ‘Acting President”. The power to appoint an “Acting President” is discretionary, and remains vested in the President. This is corroborated by Section 148 Subsection 1 that grants the President discretionary power to assign responsibilities to the Vice President as well as other serving Ministers. To arrogate the power to appoint an “Acting President” to the National Assembly is to becloud and breach the provisions of the Constitution with impunity. In fact, the appointment of an Acting President is normally predicated on incapacitation, whether temporary or permanent, and or when both the President and the Vice President are both dead, both impeached or have both resigned from office.
Under such conditions, the National Assembly can make one of their members, The Senate President, to hold the office of Acting President pending the conduct of election into the existing vacant positions in the presidency. The Constitution in Section 146 Subsection 2 gives a time limit of three (3) months within which an election must be conducted to fill the vacant positions of the President and Vice President.
In fact the issue of “Acting President” is not limited to the 1999 Constitution of the Federal Republic of Nigeria. A special case was Mr. Earnest Shonekan’s appointment as Head of the Interim National Government. The appointment was made by the outgoing Head of State, Mr. Ibrahim Babangida. It was not the National Assmebly of the time that appointed Mr. Shonekan. The Head of the Interim National Government was by import an “Acting President”. There are many other examples. In far away Russia, when their National Assembly on September 21, 1993 appointed Mr. Alexander Rutskoy as Acting President during the Russian Constitutional Crisis of 1993, the transition was chaotic.
The late Russian President, Mr. Boris Yeltsin did not handover to Mr. Rutskoy when he was suddenly pushed aside by members of parliament. In return, Mr. Yeltsin got the support of the Russian military and quickly swept off Mr. Rutskoy and dismissed him from office on October 4, 1993. But when the same Mr. Yeltsin made Mr. Viktor Chemomdyrdin as Acting President on November 5, 1996 because he was going for his heart surgery operation, the transition was very smooth between the duo. When Mr. Yeltsin was back a day after the operation, the transition was smooth from Mr. Viktor back to Mr. Yeltsin. Mr. Viktor was just an Acting President for one day (For further details, see: http://en.wikipedia.org/wiki/Acting_President_of_the_Russian_Federation).
It was in the same Russia that Mr. Yeltsin, then President of the Russian Federation, appointed a relatively unknown man Mr. Vladimir Putin into his cabinet as a Minister. He was later appointed a Prime Minister, and eventually made an Acting President when the health of Mr. Yetsin was failing (For further details, See: Volodya’s Journey, In: Person of the Year, Time Magazine, Dec 31, 2007 – Jan 7, 2008, pg 52 & 55). The discretionary power also was used in far away Britain when Mr. Tony Blair decided to step down as Prime Minister whilst also choosing his successor, Mr. Gordon Brown. They were not the British Members of Parliament that appointed Mr. Brown.
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OMOTAYO, J. A. Lagos, NIGERIA
March 17, 2010
I like to thank Mr. Yomi for his observation. I normally would not write or criticise without having solutions in mind. But the road to the solutions in this instance seems very long and rough because of the mistakes so far made.
We shall get there in my writings, but it may take about four articles to get there.
Before I gave the solutions to banking problems in Nigeria, I first exhausted all the various mistakes already made by Mr. Soludo and his team. I am happy today that some of those things that I wrote about are coming to fruition. The uniuversal banking concept would be dropped to allow banks grow at their own paces: ward, regional, national and international levels. My writing has also provoked the sale of ariline ticket online at such costs as N5,000 to N8,000 on Lagos Abuja trip depending on the airline.
I cannot continue to list my achievements in this regard. It is much more important to recognise that errors have been made and let everybody know. That is to me a patriotic call than to gloss over it until it culminates into disasters (God forbids). Please watch out for more of my writings and made your comments and or criticisms.
God bless Nigeria.
Yomi Chicago, USA
March 12, 2010
I read the long and detailed reasons the actions of the parliaments in Abuja were illegal but I did not read the solutions or what you felt the parliaments should have done.
Were you out of the country or at worst out of this planet when most and all emiseries to Saudi Arabia to see our ailing president failed to yield any result? Are you of the opinion that nothing should have been done why the country go into chaos?
Are you saying you were not aware or did not read news of the heavy lobying of the parliamentarians that was going on by the so called kitchen cabinent members and their cohorts? As much as I found your writing fascinating, it did not profer any solution then and now. While all the parliamentarians did was not perfect, i take side with them on that issue and my prayer is that God will give them all the courage to declare Mr president incapacitated so that the nation can move forward period.
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