Yesterday, Nigeria’s House of Assembly appointed Vice President Goodluck Jonathan the ‘Acting President’ of the federation under the provisions of S. 145 of the Constitution. They acted to fill the vacuum created when President Yar Adua was rushed to Saudi Arabia on a medical emergency some 78 days ago. They are to be congratulated for finally doing something. Sadly, however, their action has created another constitutional crisis. This is section 145 of the 1999 constitution on which they relied:
145. 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.
Now, no declaration, written or otherwise, was transmitted by Yar Adua to the lawmakers. Indeed the president has ‘ignored’ the Assembly’s 12th January resolution requesting such a declaration. The clear implications are that Yar Adua is either incapable of making declarations or well beyond caring. Instead, the senate has interpreted a radio interview granted to the BBC recently by a enfeebled voice that claimed to be the President (who promised to return as soon as his doctors discharged him) as a written declaration for the purpose of the constitution. In the words of David Mark, Senate President:
Viewed from the ordinary reading of section 145, the Senate came to the conclusion that the President, through his declaration, transmitted worldwide on the British Broadcasting Corporation (BBC), has furnished the parliament with irrefutable proof that he is on medical vacation in Saudi Arabia and thereby complied with the provisions of the section,”
To explain why an unverified voice on the radio was equated with a written declaration, David Mark further explained:
“A rigid and inflexible interpretation will not only stifle the spirit and intendment of the Constitution, but will also affront the doctrine of necessity.
“The doctrine of necessity requires that we do what is necessary when faced with a situation that was not contemplated by the constitution.”
The ten naira question of course was why it was necessary concoct a ‘doctrine of necessity’ that was totally unnecessary in the first place. The constitution has a perfectly reasonable and workable provision that fits the present situation like a glove. It is S. 146:
146. (1) The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 of this Constitution.
Of course, to activate s.146, the lawmakers would have had to despatch a medical team to assess whether or not the 78 day absence of the president was a symptom of a permanent incapacity. The lawmakers lacked the moral courage to take this step. This is puzzling. It does not require a huge amount of courage to order the medical examination of a president who has been unable to direct state business for close to three months. (To indulge a moment of conspiratorial madness, for all we know the Nigerian president may be the victim of a kidnap plot, no member or agency of government having seen him for 80 days.)
Perhaps in the judgement of the Law makers, the President’s kinsmen and clansmen would have rioted, were the Emperor declared to be in fact naked. Yet, a medical panel cannot kill, or permanently incapacitate a president. It can only force a truth into the public realm where it belongs, for Yar Adua’s oath of office had made the state of his health a matter of fundamental public importance.
This constitutional shenanigan suggests that in the estimation of the lawmakers, Nigeria cannot survive the truth. That is a lie. Nigeria will not burn, unless the usual political mafias pour the petrol and stoke the fires. The Constitution of the Federal Republic of Nigeria was not drafted to save the blushes of a Musa Yar Adua or the coterie of beneficiaries that sup in his name. There may come a time when sagacious senatorial flair can pull a doctrine of necessity from the spirit of the constitution to save Nigeria from the fires of hell. That time has not come. The cries from Yar Adua’s home state are the same as the cries from everywhere else in Nigeria: for food and jobs, for electricity and roads, for good governance.
The leadership has short-changed us. By dodging the bullet of s. 146, the lawmakers have steered Nigeria into a fusilade:
- The appointment of the Acting Vice President is illegal. It may be politically expedient, but it is fundamentally flawed. This is a source of further legal and political logjams. In whose favour will the constitution be fiddled with, next? Next time, merely complying with the constitution will cause a crisis.
- Because Goodluck is merely an ‘Acting President’, unless Yar Adua returns, there will be no understudy of a Vice President for the life of this government. If Goodluck Jonathan had become substantive President under s.146, he could have appointed a vice president immediately. As it is, there is no constitutional provision for an ‘Acting Vice President’ to an ‘Acting President’. This is a major administrative vacuum in the heart of the Presidency that opens the door to kitchen-mafias and the Distorted-first-lady-syndrome. The David Mark Doctrine of Necessity is about to be called in for further rapes on the constitution.
There is of course a silver lining to this cloud, at least for the man at the centre of it all: if Acting President Goodluck (long may he reign) should suffer the ill luck of a heart attack during the rest of his tenure, the next in line for Acting Presidency will (in the absence of a Vice President) be none other than Senate President David Mark. – Unless of course a new political calculus throws up another doctrine of necessity to checkmate the strict consitutional provision…
WHAT TO DO
is embarassingly straight forward. A medical team should visit the President of the Federal Republic of Nigeria in his hospital ward in Saudi Arabia. Their report should inform the deliberations of the National Assembly. If the President is adjudged permanently incapacitated, the Vice President should be sworn in as substantive president. He should then appoint a vice president.
The heavens will not fall.
(Although some private ceilings may well cave in.)