Published on September 25, 2011
That provision goes thus:
“(2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution” – S.1(2).
In other parts of the Constitution, prescriptions are made for the election of the persons to be charged with the operation of the country’s system of government under an Oath to uphold, protect and defend the above provision of the Constitution and thereby ensure the continuity of constitutional government in the country. The Constitution also provides for the manner in which those elected officers may be replaced between elections whenever necessary.
In the country’s present situation, however, there is grave danger that the continuity of constitutional government may become impossible. The Executive Powers of the Federation and the exercise thereof are vested in the President under subsection (1)(a) of Section 5 and subsection (2) of Section 130 of the Constitution The incumbent President is ill and has, for some months, been unable to discharge the functions of his office. The Vice-President is performing the functions of the office of President in an acting capacity. The question that now arises is: “Who would exercise the Executive Powers of the Federation should the Acting President too (for any number of possible reasons) become incapable of performing those functions? If the Acting President becomes incapacitated now, not only may the country fall prey to arbitrary government, it may, as a worse alternative, descend into anarchy.
The provisions of the Constitution that concern us here are those in respect of the tenure of the president and State governors and the circumstances in which they may be replaced before the end of their tenure whenever it becomes necessary to do so. The provisions dealing with the office of president are identical with those dealing with the office of State governors.
What has now spotlighted the gravity of the county’s situation is the constitutional crisis sparked off by the departure of President Umar Musa Yar’Adua from Nigeria on October 23, 2009 without informing the National Assembly, which crisis has been sustained by his continuing ill-health. After more than two months of argument and wrangling among the politicians the National Assembly passed a Resolution on February 9, 2010 that Vice-President Goodluck Jonathan should start to discharge the functions of the President in an acting capacity until the President would be well enough again to resume those duties. Before then, the country had been governed illegally and unconstitutionally for two and half months (see my article in The Nation of February 09, 2010 (pp. 36 & 39).
Two questions arise from the current situation. The first is obvious. Who will determine when a president or governor is well enough again to resume the functions of his office after an absence on health grounds? The second question is by no means obvious. It only comes to the surface when we consider the provisions of the Constitution relating to the order of succession to the office of president or governor whenever the incumbent is replaced before the end of his tenure. Let us look at the second issue first.
If the president (or a State governor) dies before the end of his tenure, or if he resigns, or becomes permanently incapable of discharging the functions of his office or is removed from office in accordance with Section 143 of the Constitution (s.188 in the case of a governor), the vice-president (the deputy governor) takes over as president (State governor) in a substantive capacity. The approval or consent of the Senate (the State House of Assembly) is not required. However, for the sake of an orderly transmission of power, it is desirable that the Legislature should formally note the change and arrange for the swearing-in of the new incumbent.
The issue of succession in these circumstances is dealt with in Section 191 with respect to a State governor and in Section 146 with respect to the president. Subsections (1) and (2) of Section 146 provide as follows:
“146(1) The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death, resignation impeachment or permanent incapacity or the removal of the President from office for any other reason in accordance with the provisions of Section 143 or 144 of this Constitution.
(2) When any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of the Senate shall hold the office of President for a period of not more than three months during which there shall be an election of a new President, who shall hold office for the unexpired term of office of the last holder of the office”
Substitute “Speaker of the House of Assembly” for “President of the Senate” in subsection (2) of Section 191
Except for the wrong use of the word “impeachment” in subsection (1), the above provisions are clear enough and should present no difficulty in application. The Section rests upon an assumption that the office of President is EITHER being occupied by a person who is well and able to discharge its functions (barring short periods of absence) OR that the office is vacant. However, the current situation in the country has introduced a novel dimension into the circumstances envisaged and provided for in subsection (2) of section 146. Right now, the office of President is NEITHER vacant NOR is it being occupied by a person well and able to discharge the functions of the office.
Under subsection (2) of Section 146, the President of the Senate, whenever the office of President is vacant at a time when that of the Vice-President too is vacant, is empowered to step into the office of President and perform the functions of that office. The President of Senate, as Acting President, must, within three months of his taking over in the presidency cause an election to be conducted into the office of the President.
We should note that the Constitution is silent on what happens if the Vice-President, though his office is not vacant, is, for any reason whatsoever, unable to perform the functions of the office of President. In such a situation, the President of Senate cannot step in to perform those functions since the office of the Vice-President is not vacant. No one at all can constitutionally discharge the functions of the President.
At present, the office of President is not vacant. Consequently, under the provisions of Section 146, it would be unconstitutional for the President of Senate to perform the duties of the President of the Republic even if the office of Vice-President falls vacant. Also, the President of Senate cannot arrange for an election to be held into the office of the President since that office is not vacant. In no circumstance can the President of Senate perform the functions of an incapacitated President of the Republic as long as the offices of both the President and the Vice-President are not vacant even if the Vice-President himself becomes incapacitated.
This is where anarchy or (at best) unconstitutional government stares Nigeria in the face. The position in which Nigeria finds itself right now is worse than that of a man who sets out with his entire family on a long car journey without a spare wheel. Of course, by sheer providence, Nigeria, like the foolhardy family man, may arrive at the end of the journey without requiring an emergency substitute.
Nevertheless, it is highly undesirable to leave the fate of 150 million Nigerians to chance. It is necessary to free Nigeria from its present constitutional trap either by the President resuming the effective performance of his presidential duties or, in the alternative, Acting President becoming substantive President and a new Vice-President appointed. In my view, there are four possible escape routes from the trap. The first escape route may be provided by a miraculous and immediate restoration of the President to good health so that he is able to resume his presidential duties. However, in such a case, two questions would arise. Who decides when the President is well enough again to resume his duties? Secondly, as a matter of constitutional law, could an elected president absent himself from his duties (on whatever grounds) for an indefinite period without informing the Legislature (thereby breaching Section 1(2) of the Constitution which requires the continuity of constitutional government in Nigeria) and later resume those duties?
The second possible escape route is to proceed under Section 144 of the Constitution and have a medical panel examine the President. But it could be argued that the new Executive Council of the Federation does not possess the constitutional right to make a report to the Senate President on the state of health of the President since that Council did not work with him.
The third possible way out is for the National Assembly to proceed under Section 143 of the Constitution and remove the President. I know that this is a sore point in the present circumstances of the country and it may be difficult for the political class to handle it. But raising this issue does not mean that one is lacking in sensitivity or human sympathy. The manner of expressing compassion differs from one person to another. For instance, if President Yar’Adua were my own brother, my love and affection for him would have led me, a long while back, to urge him to quit office so that we, his family, could give him loving care, attention and rest in the comfort of his home. But Nigeria’s current constitutional entanglement is not really about Alhaji Musa Yar’Adua as a person. It is about the location of power in the country and about those who stand to lose or gain by that location.
In considering the possibility of going under Section 143 of the Constitution, the word “impeachment” need not be brought into the discussion. The Constitution itself does not use the word in section 143. It simply provides for the removal of a president. The ground could be failure to ensure the continuity of constitutional government in the country.
The fourth possible way out would be to prevail upon President Yar’Adua to voluntarily relinquish the presidency. He may be mindful of his place in history and act in the overall interest of the nation. However, while this solution is being considered, two issues should be addressed. The first is the power rotation between the North and the South while the other is the question of the President’s pension rights. If for reasons beyond his control President Yar’Adua is unable to complete his term in office, and he voluntarily relinquishes the presidency in the national interest, his pension and other rights as a former Head of State should not be adversely affected.
As I have said above, the real issue facing the nation is about the location of constitutional power in the Federation. A Southerner, Chief Olusegun Obasanjo, served as President for eight years, exercising full executive powers over the country. Then it came to the turn of the North to run the country for eight years. A Northerner with a history of poor health was foisted upon the nation as President. The position and political moves of Chief Obasnjo were determinant in the nomination of Alhaj Umar Yar’Adua as the ruling party’s presidential candidate.
At the time Yar’ Adua was nominated, many in the North (and not just members of the elite) expressed the view that this was done in order to make it unlikely that the North would exercise national power for its allotted period of eight years. If the sick President became incapable of discharging his presidential functions, power would pass to the Vice-President, a Southerner, (ipso facto to the South) for the remainder of the President’s term.
About one half of the county’s population live in the North while that region contains eighty percent (no less) of its landmass. The North ought to have its own period of eight years in the presidency. Periods of military dictatorships in the past are irrelevant to the country’s present situation or its resolution. Nobody can say that the North is now enjoying an uninterrupted term of four years in the presidency.
Most decision makers in public life in Nigeria tend to favour their own family, their own friends, their own geographical area and their own part of the country. For this reason, in the name of justice, fairness and harmony in the country, if Yar’Adua voluntarily quits office, Nigeria’s political class should find a way of assuring to the North the presidential position at least for the four year term at the next election.
The other current issue of constitutional importance is the one about who should decide when a president or State governor who has been absent from office for some time on health grounds is well enough again to resume the duties of his office. The Constitution does not provide for a situation where the president or State governor is temporarily incapacitated on health grounds nor does it stipulate who determines when he is well enough again to resume his functions. There is also an equally dangerous omission from Section 144 which, while providing for the setting up of a panel to examine a sick president, does not provide the Vice-President to act as President during the period when the medical panel is carrying out its assignment. A minor indisposition of the President necessitating only a few days’ absence from his duties would be covered by Section 145, but any serious illness should come under Section 144.
In conclusion, I submit that whenever a situation arises that might create a vacuum in the legitimate exercise of constitutional authority in Nigeria as a result of the incapacity of the President, the National Assembly has both the power and the duty under Sections 1(2) and 145 of the Constitution to pass a Resolution to enable the Vice-President to act as President. Similarly, I submit that whenever a president or governor has been absent from duty on health grounds, it is the President of Senate (or the Speaker of the State House of Assembly, as the case may be) who has the power to set up a medical panel to determine whether or not he is well enough again to resume his duties.
Hon Justice O. Oluwadare Aguda (rtd) formerly Judge of Ondo State High Court Chairman, Ondo State Law Commission (2001 – 2005) is a consultant in Nigerian Law. He is the author of Understanding the Constitution of Nigeria 1999 Lagos: MIJ (Professional Publishers) 2000.