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A NATION IN CONSTITUTIONAL ROW

By: Onike Rahaman  

 Published January, 31st, 2010

The insistence of Federal Executive Council last week that President Umaru Yar’Adua is medically fit despite all the agitations has raised constitutional questions. This is the second time that the council would take a stand that the ailing president is not incapacitated. Contrarily, the senate passed the resolution that yar’Adua should properly hand over to the vice president Goodluck Jonathan as Acting President. Obviously, the senate and the council could not agreed on the medical fitness of the president thereby posing challenges to the nation’s constitutional democracy.          

In actual fact, the absence of the president does not constitute the paralysis of state as argued by some analysts. Of course, the clamour for vice president Jonathan to take over as acting president was enacted to force words out of the mouth of our president that he is still alive or probably to ensure strict compliance with the provisions of the nation’s constitution.          

Studying the situation carefully, it is clear that the senate erred abinitio in passing the resolution that the ailing president should handover to his vice, Goodluck Jonathan when the decision was viewed against the 1999 constitutional provisions. The stand of the senate would have been justified, if the federal executive council by a resolution passed by two – thirds majority of all the members declared that the president is incapable of discharging the functions of his office. This constitutional requirement was not satisfied in the present circumstance.          

Evidently, for the decision of the law makers to have the force of law such must be in compliance with section 144 (1b) and 144 (2) where it is provided that the declaration that the president has become incapacitated is subject to verification after necessary medical examination by a medical panel established by the provisions of the nation’s constitutions. In deed, where the medical panel certifies in the report that in its opinion the president is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice thereof signed by the president of the senate and the speaker of the house of representatives shall be published in the official gazette of the government of the federation.          

In my own view, it is as from the date of publication of the notice of the medical report that the president will cease to hold office as the president. Candidly, the senate goofed to have taken decision that has no force of law. More importantly, the lawmakers did not give the president any time frame within which to comply with the resolution. In all this, there is evidence of politicking of an issue that supposed to be purely constitutional. When this tragicomedy ends, efforts need to be made for training and re-training of the Nigerian law makers to acquire competence in constitutional interpretation.          

I quite agree with the Minister of Justice and Attorney General of the federation, Michael Aondoakaa, that many have confused this constitutional issue with politics of the day. Moreover, the hue and cry over the inability of vice president Goodluck Jonathan to exercise the powers of president Umaru musa Yar’ Adua who is in Saudi Arabia for medical attention has been laid to rest with an order of a federal high court, directing hum to start exercising the powers of the president pending his recovery and return to office. As for me, the ruling by justice Daniel Abutu does not in way complicate the matter as it could be recalled that even before the suit the vice president has been carrying out the duties of the president as allowed by the constitution in section 5 (1) of the 1999 constitution.         

In any way, what currently operates as a usual practice is that the vice president should in the absence of the president naturally steps in, to hold forte until the president is well enough to resume his office. In deed, the decision to transmit to the law makers a written declaration that he is proceeding on vocation or he is otherwise unable to discharge the functions of his office is a matter which depends on the president’s discretion. Logically, this cannot lead to a constitutional peril or legal sophistry as insinuated by cross section of Nigerians.          

The whole scenario points to inter play of forces among the ruling elite. Without resolving the contention as to the correct interpretation of section 145 of the constitution, Nigeria would be forced to enter an unprecedented stage as a hijacked entity. Some are using the unfolding scenario to hot up the polity. With the development, small but desperate oligarchic rule is being perpetrated and surreptitiously consolidating its illegitimate power grab. Besides, the ongoing elite conspiracy has polarized the nation along ethno-religious divides. The  recourse to court of law expectedly would be a litmus test to judiciary under the investiture of Kastina Alu as the chief justice of the federation.         

It could be predicted that very soon Nigerians will know the health status of the president. The whole thing is a factor of time. Also, the concealment of Yar’ Adua’s true health case history is causing apprehension in the land. And we would not have come to this pass, if we had been told the truth from the onset. May God save Nigeria.

Onike Rahaman Onike writes from Oyo town, Oyo state, Nigeria public affairs analyst



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