Tuesday, February 16, 2010

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.
Goodluck Jonathan: Nigeria's vice president takes power

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.

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[1], 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.

[1] - Siollun, M., Oil, Politics and Violence: Nigeria's Military Coup Culture (1966-1976); Algora, 2009. (Book review is forthcoming).

From the Archives:
- Is Yar'Adua Brain Damaged or Not?
- Nigeria's President Absent During Crisis
- How to Shoot Yourself in the Foot With Al Qaeda
- More Yar'Adua Health Uncertainty
- Yar'Adua Health, Resignation & Nigerian Cost
- Yar'Adua And The Continuing Heath Issue
- The Consequences of Yar'Adua's Mysterious Health

7 Curiosities. Add Yours.:

webround said...

I agree that the way Jonathan was elevated is unconstitutional and can pose more problems in the future especially when people start challenging it in court. As my friend said, the assembly members were being cowards by not impeaching the president.

I do not agree that the members of the executive council should not be appointed by the president. The president needs to set up his own team, people that he feels shares his vision. This is also what CEOs do. They appoint people whom they feel share their vision and will be able to execute it. My sugggestion is that President should nominate a Minister and his respective Ministry b4 sending their names to the assembly for confirmation. The assembly members will thus be looking at the person's capability to function in that specific ministry as well as his track record individually. E.g the person who was nominated to be the TSA chief in the US. Yes, the guy has a good work record but when it was discovered that as a former FBI agent, he used law enforcement systems to look up information on the boyfriend of his seperated wife, he was refused confirmation. The theory is that having abused security poweres b4, one should be cautious about giving him more power in the security field. This is not a foolproof system but we should not throw away the bathwater and the baby. We should not hamper a president who is ready to work by giving him Ministers who do not buy into his vision

Anonymous said...

Yara'dua not being "able" to give a straight and direct video interview is what still baffles me. See what it's causing now. Mchewww

AliceDCL said...

na wa oh
they shud just amend d constitution and let us hear word

N.I.M.M.O said...

@SSD: Somehow, I knew you'd do this post. Much more analytical than my own subjective rants.

Some say the Constitution does not provide for our peculiar situation but I disagree.

The most logical thing to do in this situation would have been outright impeachment of the President vide s.143. Alternatively, the ECoF could have done the right thing vide s.144. Or if Yar'adua is still alive, he could write the letter vide s.145.


One thing not considered though is Nigeria's convoluted political arrangements a.k.a Federal Character as codified in the PDP's peculiar Zoning Formula. Any change in the current personnel will drastically affect the configuration in place.

You see, if Yar'adua is removed by any means and Jonathan (Southern Christian) is sworn in as President, a new VP will be appointed who will be a Northern Muslim.

Since the position of VP is considered a token, Senate President David Mark (Northern Christian) will have to go. Most likely too, House Speaker Dimeji Bankole (Southern Muslim) will go too.

By the time they finish the reconfiguration, there will be many more political casualties.

BJoseff said...

It seems to me that the Nigerian constitution, one borne out of a period of political unrest what with miltary rule and General Abacha's unexpected death, needs significant overhauling.

Nigeria should just hold a constitutional conference and hammer out the kinks in it, just as the founding fathers in America got together at the Philadelphia Convention and cranked out the US constitution.

RE-Entrepod said...

Sydelle, the problem is that the constitution is not clearly worded in regards to absence and replacement. until the language is non ambiguous and clear there will still be no real understanding of what is to happen.

if Yardy is unable to fulfil his term, logically then the VP should be elevated by power of his election and that should take care of it. unfortunantly the constitutional question is still before the supreme court who really shouldn't have any further reinterpretations if the constitution is clear.

the military terms are what has really muddied the picture. as well does it make clear what the time peroid is that the presidents absence is allowed before the vp steps in as acting president - until the president is replaced finally in a case like this; or is there a coticle that calls for a replacement election which would be ludicrus considering that a vp was elected specifically for his purpose.

crazy, totally crazy.

mingus said...

at the end of the day all boils down to one thing ---- gross incompetence! i cannot understand why everything about naija has to always be object of ridicule simply becos imbeciles and infantile adults are allowed to be at the helm of affairs! this baffles me also! all they do is yarn crap left right and center and the world is just laughing. we have a president who is either dead or on life support and officials colluding with his wife have hood-winked the BBC to interview some person claiming to be yar adua. sh***********t!!!!

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