Vice President Jonathan can act as President without legislative assent
The incommunicado of president Yar' Adua due to an undisclosed illness has sparked a fierce debate on a broad range of political and social issues. The issue of presidential succession is a seminal part of this debate. Section 145 of the Nigerian constitution 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 provisions of the constitution is concise and clear to the effect that in the case of the president Yar' Adua inability to discharge the powers and duties of his office same will devolve on Vice President Goodluck Jonathan. Section 145 of the constitution gave the president the prerogative to declare his own disability. If he could not communicate his disability with Vice President Jonathan, or the Senate and House of Representative, Goodluck Jonathan by virtue of his position as Vice President can declare the President disabled and act has president. The intent of this section of the constitution is to pre-empt situation where any succession by a vice president would make him president, as in the case of death, for the rest of the term even if the elected president recovered from his inability before his term ended.
The inability to act is a question of fact, as in the case of President Yar'Adua who is presently sick in a Saudi hospital. If the fact exists, it is the duty of Vice President Jonathan to act as president during this period. If there is no dispute to this fact, his actions as acting president cannot be questioned. The duty to act rest upon him and no one else not even the Senate or House of Representatives. Legislative assent is not required since the intent of the constitution is to pre-empt a leaderless nation.
However, if the Vice President's action is contrary to the provisions of the constitution, same can be reviewed by the courts. If the President disability has been removed, he can then assume the office of the president.
Practices Law in New York and the District of Columbia
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