22.12.2009 Feature Article

Nigeria: A constitutional crisis? What crisis?

Nigeria: A constitutional crisis? What crisis?
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“Crisis? What crisis?” These three words to observers of British politics reflect words wrongly attributed to then embattled British Prime Minister Jim Callaghan in his reaction to mounting criticism of his government in 1979 when he had in fact stated that, “I don't think other people in the world would share the view [that] there is mounting chaos”. The UK Sun newspaper re-jigged his comment for better use of the word into the now infamous quote. In borrowing these words, I am mindful of what appears to ordinary observers a constitutional crisis in the making but which in reality is not, hence the use of this title for this discourse.

It is now common knowledge that the president of the republic is ill, the nature of his illness confirmed on Friday 20 November 2009 by Presidential spokesman Olusegun Adeniyi as acute pericarditis following complaints by the President of severe pains to the left-side of his chest.

Whilst the personality of the office holder of the presidency changes as dictated by the wishes of the electorate, changes to the presidency as an institution are dictated by what are laid down in the constitution being the supreme law of the land. The Yoruba's have a saying, which when translated reads, “you don't seek, what you haven't lost”. So in essence why invent a so-called constitutional crisis when at the present time none exists. A reading of the Section 145 of the Constitution of the Federal Republic of Nigeria 1999 (CFRN 1999) titled Acting President during temporary absence of President states inter alia, “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 Constitution is crystal clear on the mechanism, procedure and process by which powers is devolved to the Vice-President as Acting President. A reading of “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” should be construed as giving effect to the Acting President assuming the powers of the President. It is respectfully submitted that any reasoning, opinions or views, which are to the contrary are designed to cause mischief, confusion and undermine the constitutional process. The question we need to ask ourselves is this, 'do conditions exist which call for the invocation of this constitutional provision?' In response, I say it is clear and without equivocation that the said condition existed from the date, the nature of the president's illness was confirmed. To put it simply from that date, whilst no one has used the term, I can categorically state that Vice-President Jonathan Goodluck has been our Acting President by virtue of the invocation of this provision.

When our learned Attorney General of the Federation and Minister of Justice (AGF) at his ministry's 2009 press briefing (reported in Nigerian Newspapers on 16 November 2009) states that the President, "If he is sick and that sickness does not affect his ability to exercise the powers of the president, he will do. This is one misconception and you can tell whoever has been misconstruing it that the powers of the president are embodied in the person elected as president and can exercise those powers anywhere he is as long as it affects the Federal Republic of Nigeria …the president does not have to be in the country before he can exercise his power. He can do that anywhere. The president can delegate his power to anyone and he can even give instruction anywhere in the world, even on his sickbed” and he then further states that, “there is no evidence that he is not exercising his powers as president” - it portends a calculated attempt to mislead the public on the true extent and nature of the President's state of health. A holder of a great office of state, in fact the only office expressly provided for in our constitution should be extremely guarded in his public utterances. Is Nigeria a country that relies solely on individuals or personalities or a country that should have in place within the confines of the present fourth republic, robust, resilient, adaptable and flexible institutions? Much as a cabal of individuals and personalities try to ram raid the institutions of state by adopting untoward practices the trend of late is that the public is now more aware and alive to such practices.

Thus where inconsequential issues are allowed to sidetrack and undermine the administration of justice as evidenced by the admission that the probe into the graft Halliburton scandal was inconclusive because of the challenges of translating transcript of court proceedings in France into English? The Provisions of Section 174 (3) CFRN 1999 state that the Attorney General shall, “in exercising his powers have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”. It is respectfully submitted that in today's world there are a number of ways and means to satisfactorily resolve translation challenges of court transcripts and any admission to the contrary is a departure by the learned AGF from his constitutional duties. Unfortunately this seems to be the trend of late and the advise, opinion and reasoning provided to the Federal Executive Council (FEC) given the President's current state of health is to say the least wholly defective. It beggars belief that the FEC as a vital institution and decision making body of state which includes distinguished lawyers who are also members of the inner bar should acquiesce with the current state of play. The Rules of Professional Conduct in the Legal Profession states in Rule 21 Upholding The Honour Of The Profession that, “The lawyer should strive at all time not only to uphold the honour and to maintain the dignity of the profession but also to improve the law and the administration of justice”. The Lawyer as a professional irrespective of the position he or she holds, he or she should ensure that this rule is upheld. In other words, a lawyer's duty is sacrosanct and paramount irrespective of whether his role in a body he serves is in a legal capacity or not. This rule is strict and lawyers have a duty to voice their opinion particularly where the interests of justice, equity and good conscience are at stake. I am of the view that the role of the lawyer as a guardian of the law serving the public interest and the public's common good far outweighs the narrow confines of lawyers in public office serving in a non legal capacity. Lawyers are Lawyers first and Public Office Holders second and their duty to the profession is paramount.

Whilst it is not my place to criticise unduly the impending legal action instituted by the learned Femi Falana who embodies the role of the lawyer as described earlier, with respect I submit that whilst the intentions of the suit are good, I do question its need as the constitutional provisions are clear. The machinery of the executive arm of government notwithstanding comments to the contrary have been lawful and the fact that no one has called the Vice President, Acting President is neither here or there, in other words it is not non sequitor, his powers constitutionally is that of Acting President and he has since the day the President took ill to all intents and purposes been the Acting President.

The provisions of Section 145 CFRN cited earlier whilst not expressly stated how power is transferred following a temporary absence or incapacity of the President it is the substance of the constitution that matters not the form or the exact wording of the provisions. Some commentators have observed that the conditions given the powers of the Acting President is in situ has not been created. The development of our legal Jurisprudence following the trend of decisions of our apex court notably the cases of Governors Rasheed Ladoja, Rotimi Ameachi, Peter Obi and Vice President Abubakar Atiku have to borrow the words of the former United Kingdom's Lord Chancellor Lord Irvine of Lairg created, “a culture in judicial decision making where there will be a greater concentration on substance rather than form."

The provisions of Section 145 is in my view unambiguous and clear as to its meaning. The literal meaning of this section should be construed in its ordinary meaning. The provisions of this Section are similar to the provisions of the Article II, Section 1, Clause 6 (titled President and Vice President Vacancy and disability) of the United States Constitution (USC) which states, “ In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected” this should be .read in conjunction with the USC 25th Amendment. The USC provisions were invoked as recently as on 21 Jul, 2007 with then Vice President Dick Cheney as Acting President, when President George W. Bush underwent a colonoscopy (colon surgery) medical procedure and on 12 July 1985 with then Vice President George Bush (Senior) as Acting President when President Ronald Reagan underwent colonoscopy medical procedure.

A similar provision also exists in Article 39 of the Zambian Constitution titled Discharge of Functions of President During Absence or Illness. This states, that, “(1) Whenever the President is absent from Zambia or considers it desirable so to do by reason of illness or for any other cause, he may by direction in writing, authorize the Vice-President, or where the Vice-President is absent from Zambia or incapable of discharging the functions of the office of President, any other person, to discharge such functions of the office of President as he may specify, and the Vice-President or such other person may discharge those functions until his authority is revoked by the President. (2) If the President is incapable by reason of physical or mental infirmity of discharging the functions of his office and the infirmity is of such a nature that the President is unable to authorize another person under this Article to perform those functions: (a) the Vice-President… shall perform the functions of the office of President.” Zambia invoked these provisions on Sunday 29 June 2008 when then President Levy Mwanawasa suffered debilitating stroke and Vice President Rupiah Banda assumed the functions of the President.

United States Senator Dale Bumpers of Arkansas a towering figure in the 24 years he served in the senate said during his famous piece of oratory when delivering the closing speech in defence of President Bill Clinton during the Senate Impeachment trial in January 1999 that his love of the constitution, came not in 18 years of law practice in Arkansas or 4 years as Governor of Arkansas but in his years of debating in the senate chamber. Senator Bumpers is someone who can best be described, as an avowed respecter of the constitution, a Constitutionalist who in all his years in the US senate never endorsed any constitutional amendment. To understand our constitution one has to heed the lessons espoused by Senator Bumpers. It is this love of what he describes as the oldest living organic law in the world that I believe we as Nigerians should replicate from the democratic ethos of the United States as proud patriots who share the same deep respect of our constitution as the Supreme law of our nation. To do otherwise or let this be hijacked by individuals known and unknown would be a gross neglect of our constitutional duty. We should not and at all times strive to ensure that this does not happen in the present republic. The will and spirit of our constitution should prevail.

Omoba Oladele Osinuga
[email protected]
Dagenham, Essex, UK

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