 Published
February, 17th, 2010
Again, for the
umpteenth time, Nigeria emerged from its ashes of
constitutional conflagration that sort of defied the natural
order of combustion: much like the Mosaic experience of the
bush consuming the fire rather than the other way round. So
it was with the recent constitutional crisis triggered off
by the eerie power vacuum in the wake of the long absence of
President Yar’Adua from the country on medical trip. As the
entire nation waited with bated breath whether the final
Armageddon had come for Nigeria, the National Assembly, like
the legendary Phoenix, rose up to the occasion with the
uncanny panacea of great ingenuity that has helped to
recreate us once again from the fast lane to perdition back
to the service lane of installment decay.
In what seems more of a spontaneous instinctive reaction of
self preservation, the National Assembly, a few days ago
took it upon itself to sit at judgment to determine whether
by proper construction of the provision of Section 144 of
the Constitution of the federation, the interview granted by
Yar’Adua to BBC in far Saudi Arabia, approximates to
compliance with the requirement of the said section of the
constitution that obliges the President to transmit a letter
to the National Assembly in such a situation as the
President has found himself, as to allow the Vice President
to step in as Acting President. After receiving sufficient
“evidence” from among themselves, the law makers arrived at
a finding vide a
yet-to-be-identified-but-apparently-emerging canon of
interpretation that the President Yar’Adua’s interview with
the BBC even over-complied with the Section 144 of the
Constitution as the BBC’s transmission of the interview was
not only to the National Assembly but also to the whole
world! And with that, the legislative hammer came down hard
for Dr Goodluck Jonathan to assume the mantle of
presidential power as Acting President, thus laying as
precedent, the propriety of legislative usurpation of
judicial power in such an event for which the law makers
have ingeniously described “act of necessity”.
While not a few undiscerning minds have resoundingly
applauded the conduct of our lawmakers in this regard, it is
however advisable to have a sober rethink before the
hysterical rush to join the band wagon in the entire danse
macabre by the National assembly. It is noteworthy to state
right away that the fact has never been in doubt that one of
the props upon which the principles of constitutional
democracy as practised in Nigeria stands is the principle of
separation of powers among the three organs of government.
That being the case, it is therefore quite disturbing that
the interpretation of statutes that constitutes the real
bedrock of judicial function is now being brazenly usurped
by the Legislature on the altar of “ Necessity.” The
usurpation of judicial function by the Legislature in clear
violation of the Constitution is a homicidal assault on the
doctrine of Checks and Balances, the leverage upon which the
three organs of government coexist to sustain the system.
The conduct of the lawmakers is a demonstration of its
unfounded pent-up disdain for the Judiciary.
I am not unmindful of the argument of the flip side that
that the Judiciary could not have acted in the circumstances
as there was no dispute in that regard. Such argument, with
the greatest respect, glosses over the fact that the
existence of law as to how an act is to be carried out as in
the situation under review, presupposes a command and a
restriction of individual will against arbitrariness in the
face of such constitutional challenge as we found ourselves.
The point I am laboring to make is that the appropriate
forum to ventilate their compulsive urge (labeled as
“Necessity”) should never have been in the hallowed chambers
of the National Assembly but before the sacred Temple of
Justice where the judicial powers of the Judiciary may be
invoked by submitting to it the appropriate constitutional
questions for determination as to whether or not the
interview granted by the ailing President Yar’Adua to BBC
qualifies as transmission of letter to the National Assembly
as to make Dr Goodluck Jonathan step in as Vice President.
Lord Halsbury L C aptly captured it in his pronouncement in
HILDER AND ANOR. V DEXTER AC 474 at 477 when he said thus,
“in construing a statute, I believe the worst person to
construe it is the person who is responsible for the
drafting. He is very much disposed to confuse what he
intended to do with the effect of the language which in fact
has been employed”.
In conclusion, while some continue to applaud the law makers
for their resolution installing Dr Goodluck Jonathan, a
person I hold in a very high esteem for his equanimity and
intimidating humility, as Acting President, it bears
repeating to still state here that with the brazen
usurpation of the judicial power by the legislature, a
precedent that seems to have received the imprimatur of a
large percentage of informed but unsuspecting public, a
chain of events certainly are set to unfold, one of which is
that parallel binding forces of law may stare us in the face
in future, viz, senate resolutions on all matters and
decisions of courts. What happens thereafter, can only be
left to conjecture.
Chris Edache Agbiti, Esq,* is a Public
Affairs Commentator and practices law at The Amazing Grace
Partners, 320, Aba Road Port-Harcopurt
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