After 79 days of political ambiguity and constitutional uncertainty, Nigerians are, once again, facing another constitutional dilemma. The resolutions by both bodies of the National Assembly to make Vice President Goodluck Jonathan the acting President created just as many questions as there were during the original vacuum.
When Yar'Adua left Nigeria on a medical emergency in November 2009, the nation came to a political standstill. The failure of the President to submit a letter transferring power to the Vice President was seen as an affront to the Constitution and brought calls for his resignation. Some took the issue to court arguing that Section 145 of the Constitution required a letter to the National Assembly for the Vice President to acquire executive powers during the President's absence. Despite a court ruling to the contrary,various segments of the population expressed their opinion that the President should issue a letter in compliance with Section 145. As the pressure on Yar'Adua mounted, the Senate demanded a letter, and a Presidential adviser promised that one would be forthcoming. In spite of that promise, the Senate and House of Representatives, with the support of state governors, issued separate motions making Jonathan the country's acting President.
A NEW CONSTITUTIONAL PROBLEM
Although foreign governments like the United States have congratulated Jonathan on his new position, the manner by which he became acting President has opened many more constitutional questions yet to be answered. According to Senate president, David Mark, legislators chose to rely on a January 12th 2009 telephone interview allegedly given by Yar'Adua to the BBC Hausa Service. Yar'Adua's pronouncement that he would have to wait to recover in order to return to Nigeria was interpreted as an admission of a prolonged absence. That absence thus required the use of the "necessity doctrine" to give the Vice President executive powers.
Unfortunately, the "necessity doctrine" is raising criticism. Many point out that this approach could be used to promote distasteful measures that would sacrifice Nigerian democracy. Additionally, it has been pointed out that the "necessity doctrine" should otherwise have been the basis for Presidential impeachment as provided for in Section 144 of the Constitution, something the legislators were clear to avoid. However, it is now appears that in an effort to ensure that their act was legal, legislators are considering the impeachment clause, and an additional option that would require the federal Executive Council to make a declaration that would open the path to Yar'Adua's formal step down.
THE SECTION 145 IRONY
Oddly enough, certain groups with opposite views on Section 145 as it currently applies to President Yar'Adua have now landed on the same side of the acting President debate. The Save Nigeria Group (SNG) publicly stated that the manner by which Jonathan was declared acting President is unconstitutional and that impeachment is the only legal option given the circumstances. Similarly, certain northern 'elders' have equally deemed the legislators action illegal and Alhaji Tanko Yakassai plans to take the issue to court. A former Senator,Matthew Mbu, has joined the calls for Yar'Adua to be declared incapacitated, stating that the resolution is not recognized by the Constitution. Already, Abuja-based lawyer Alagbua Agboje has asked the court to void the declared acting Presidency and there likely will be more cases until resolution of the constitutional issues surrounding Goodluck's ascension are resolved.
After Nigeria's first military coup in 1966, the resulting confusion threw the nation into a dilemma, with politicians soon giving their power over to the military. That heralded the creation of a military government that was technically unconstitutional as the Constitution made no provision for a temporary military government. According to some accounts, politicians and the military likely believed they were doing the best they could for the nation, its people and its democracy. Unfortunately, such good intentions only resulted in the death of Nigerian democracy for several years under the boot of various military dictators.
Similarly, this act by the Senate and House of Representatives could have the unintended consequence of becoming a precedent that derails Nigerian democracy. While it can be seen as a positive approach to dealing with a vacuum created by a President that refuses to honor a basic request to temporarily transfer power, the convoluted manner by which it occurred is simply unacceptable. It is a shrewd stretch to rely upon the President's interview but for the purposes of Section 145, the wording is clear - a letter is required. Being that Section 145 apparently depends on the willingness of the President to write and submit the necessary document, that provision must be amended. A future amendment should make sure that any public pronouncement by the President indicating that he/she will be away should be grounds for the temporary transfer of executive power. Additionally, a proposed bill in the House of Representatives that will automatically trigger the transfer of power when the President has been absent for 21 days, must be considered for inclusion in the Constitution. Never again should the nation be in limbo simply because the President neglects to honor the Constitution. Furthermore, the Federal Executive Council (FEC) arrangement should be changed. Members should no longer be selected by the President but should be independently selected via a different process. Because FEC members are selected by the President, they are beholden to a President's whims and wishes, sometimes to the detriment of the people, thus limiting their effectiveness in situations like the one Nigeria is currently experiencing. Modifying these and other aspects of the Constitution will go a long way in preventing a future where the precedents recently set act as a detriment to democracy.
 - Siollun, M., Oil, Politics and Violence: Nigeria's Military Coup Culture (1966-1976); Algora, 2009. (Book review is forthcoming).
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