State of the Nation
70 days without the President
From AMOS DUNIA, Abuja
Monday, February 01, 2010


Photo: Sun Publishing
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Being human, it is unrealistic to expect president Yar’Adua never to fall ill. There is nothing abnormal about his ailment. The abnormality, now rocking the polity, lies in the curious fact that no visible step is being taken to fill a gap clearly foreseen by the constitution, for which the national grund norm also provided a remedy.

There is everything abnormal about a President whose avowed mantra has been a diligent adherence to the rule of law, now operating a parallel principle. Whether it is a sudden change of heart or an idea from his close confidants, the situation has detracted heavily from whatever democratic gains garnered in the new dispensation.

It is not about a person, as those now imputing political motives to calls for due processes would have everyone believe, it is about a process.
The Save Nigeria Group (SNG) mass rallies which shut Lagos and Abuja down on January 12 and 13 respectively are indications that the process is more important than the person. Professor Wole Soyinka, Pastor Tunde Bakare, Gen. Alani Akinrinade, Chief Ayo Opadokun, Rear Admiral Ndubuisi Kanu and Mr. Femi Falana amongst others, led thousands of activists down the streets of both cities demanding that the proper thing be done, namely the President should write the National Assembly and consequently transmit power to his deputy who then holds forte until he returns.

Section 145 of the 1999 Constitution is clear and emphatic when it posits 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 will be discharged by the vice President as Acting President’.

No such letter has been transmitted to the National Assembly yet the President has stayed away for 70 days. Nigeria has been run on a vacuum, which the law abhors. Is the President on vacation? Is he on sick leave? Those are questions yet not officially unanswered but which Nigerians know the answers.

It is not as though the misguided politiking over the president’s health has remained strictly an internal Nigerian affair. Many within the country and out side of it believe that Nigeria would probably not have been placed on the list of terrorist states by the US government if President Barak Obama had had a Nigerian counterpart to speak with as soon as the unfortunate Christmas Day bomb incident in the United States occured. It is also on this issue of the President’s absence and a seeming relapse into instability that the foreign ministers of the US and EU met last week and even issued a statement on Nigeria.

The Save Nigeria campaigners were categorical when the organizers said the presidency was making a fool of otherwise intelligent Nigerians. But Nigerians have fought back as it were, some even calling for the president’s outright resignation. On the 1st of December, a 53-member coalition comprising politicians and activists had asked the president to resign, citing incapacity to discharges his functions.

On the 30th of December, 2009, signs of constitutional confusion reared when the Chief Justice of Nigeria, Justice Idris Kutigi swore in his successor, Justice Alloysius Katsina-Alu, as a result of the President’s non-availability, and proclaimed that he still remained the incumbent CJN. The action expectedly rattled Vice President Goodluck Jonathan who confessed that much and further pointed at the existence of a vacuum. If he was acting in that position, he ought to have performed that presidential function.

He did not , because he is simply not in charge.
On the 13th of January, Justice Dan Abutu of the Federal High Court in Abuja delivered a judgment asking Jonathan to assume presidential powers but insisted that he could not be sworn in as Acting President until a letter is transmitted to the National Assembly. The situation is tantamount to power without authority.

Abutu again ruled on January 22 that the Federal Executive Council should make public, within two weeks, the capability or otherwise of the President to remain in power. On Wednesday January 27, barely five days after, the FEC rose from its fourth meeting in the year with a unanimous decision that only the President could determine whether he is fit to remain in office.

If anything, that position has compounded an already complex matter. The constitution empowers the FEC via section 144 to determine whether the President or Vice President is incapable of discharging the functions of his office. The section also provides that a medical team comprising five medical practitioners set up by the President of the Senate would issue a report to confirm the position and set about the process of replacing the incumbent.

That provision may seem politically impossible given that it stands reason on the head to expect a body appointed by the President to spear head a move to get him out of office. It is evidently inconceivable that ministers appointed by the President would move, on whatever grounds, to remove him. That, in itself, is a constitutional flaw but its defenders say it is envisaged that vesting such powers totally on the National Assembly will make monsters of lawmakers who could regularly flaunt that power at the presidency at the slightest tiff.

Clearly section 145 becomes the most feasible solution to the apparent crisis unwittingly or wittingly foisted on Nigeria and its 150 million citizens. It simply asks the President to write the National Assembly declaring that he has proceeded on vacation or is temporarily unable to govern and that the vice president should step up as the Acting President.

The Chief Law Officer namely the Attorney-General, an appointee of the President, says compliance with that section is discretionary not mandatory. In other words the President is at liberty not to write any such letter. Since Chief Micheal Aondoakaa is Yar’Adua’s chief legal adviser, it stands to reason that he has pointedly advised his boss not to write any such letter. At a media forum late last week, the Attorney-General said the President has delegated power to the Vice President against the constitutional provision of transmitting power.’ He said at the occasion ‘I say so because the way forward here is that there ought not to be a vacuum and since he has delegated power what is on ground must be used.

We cannot wait for the application of section 145 of the constitution, but at least, the executive powers given to the vice president are already in his possession’ He quotes section 5 of the constitution to buttress his position. It would then seem, in his view, that the constitution contradicts itself.

Now, matters have come to a head. Former President Olusegun Obasanjo has asked his successor to resign on health grounds, a position largely condemned as insincere but probably borne out of privileged information. Obasanjo feels a sense of duty to exonerate himself from unofficial claims that he foisted his successor on the country knowing full well that Yar’Adua was impaired, on health grounds, from exercising the functions of that office or at best ruling the nation from his sick bed as matters have now turned out.

The ruling Peoples Democratic Party and many Nigerians have tongue lashed the erstwhile President for crying over spilt milk. However, last Thursday’s move by Eminent Elders Group cannot be swept to the doorstep of politics. It must be seen as what it is: a genuine concern by patriots and nationalists for recourse to constitutional procedure in order to assuage a burgeoning anarchy. And it is coming on the heats of a similar letter from yet another group of eminent Nigerians led by ex-Senate President Anyim Pius Anyim.

It would be difficult, if not fool hardy, to also impute political motives to calls by three former heads of state, two Chief Justices of the Federation, a former vice President, senator and very eminent Nigerians for the President to comply with section 145. Yakubu Gowon, Shehu Shagari, Ernest Shonekan, Alex Ekwueme, Muhammed Uwais, Idris Kutigi, Alfa Belgore, T.Y Danjuma, Edwin Clerke, Ahmed Joda, Jerry Gana and Jonathan Zwingina went to Senate President David Mark and pointedly told him that they were in absolute support of an earlier motion urging the President to do a formal letter to the National Assembly. In a letter to Mark the Elders stated thus; ‘it is important to resolve this issue by inviting the president to formally issue the necessary communication that will enable the Vice President to be Acting President in accordance to section 145 of the constitution as soon as possible’

Again Aondaaka says the senate and indeed, any body else can only ‘urge’ the president and not compel him to transmit power to his deputy. As things stand Nigeria has no Acting President yet the President has been away for 70 days. This is unacceptable, by whatever stretch of logic. The implication is that Nigerians can hold no one succinctly responsible for what becomes of their country.This must stop forthwith. We cannot afford to keep drifting, 70 days down the line. Enough is enough.

Like the Anyim Group of 41 noted, everything constitutionally possible must be done to halt this drift of the world’s most populous black nation. The solution lies in getting the President - through either formal or informal way - to write the letter transmitting power to his Vice President. This is more so, especially as the president does not need any other process or formality to take back the power as soon as he returns.

We should also keep in sight the recommendations of the Anyim group thus:
1. That the leadership of the National Assembly should take concrete steps to uphold the Constitution with due regard to national stability and democracy; 2. That, in addition to the resolutions already adopted by both chambers of the National Assembly and the court judgement in this matter, the National Assembly should come out boldly to assure the nation that the machinery they have set in motion is capable of yielding the desired results;
3. That the National Assembly should appeal to all those who are agitated to please down tools while the National Assembly expedite efforts to resolve the impasse.

This, we believe, will calm down the tension and forestall the possibility of people taking laws into their hands; and
4. That every effort should be made to effect the amendment of necessary sections of the Constitution in this regards to forestall a reoccurrence in the future.

Incidentally, it is not even certain that Yar’Adua is aware of the crisis threatening to engulf Nigeria. The fear is that he may have been shielded from all of it, leaving a handful of aides and less than 500 members of the National Assembly to ride roughshod over the rest of us 150 million Nigerians.

The danger however, is that this apparently less-than-1000 government officials (elected and appointed) are actually playing a game of death. A game that can bring the country’s democracy into jeopardy. Some one should tell them that it’s dangerous hanging onto power so long that you no longer have a country over which to exercise such power.

Luckily, the more sober elderstatesmen and former heads of state and president have realized the danger and have dragged all of their 70 - something and 80 - something - year old frames to Abuja all with one goal: To save us from ourselves. To save the ministers and lawmakers from themselves, and in the process, spare our dear country another long walk through the valley of the shadow of death. The country is already mired in deep economic recession, it would be suicidal to add political instability to the economic crisis. The National Assembly must rise to the occasion and allow Nigeria move forward.

The position of every Nigerian and lover of Nigeria on this should be that everything humanly possible must be done to get Yar’Adua issue this controversial letter. After all, it is not any more tasking to sign this letter as it is to sign a budget, and it is definitely less tasking than speaking for all of 86 seconds on BBC.