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Yar’Adua: Legal Clarifications of the Historic Motion and Matters Arising

By: Franklin Otorofani, Esq.
 Published February, 11th, 2010

It is perhaps fair to say that the historic motion by the Nigerian parliament divesting former President Umaru Musa Yar’Adua as President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria and transferring same to his deputy, former Vice President, Goodluck Jonathan, was widely and wildly received with jubilation and great relief by Nigerians in general. This is hardly surprising given the unrelenting agitation and strident calls from virtually all quarters that matter in the Nigerian society, including former heads of state and chief justices, opinion leaders, statesmen and women, and of course, the general public. 

As one of those who had urged the former president to do what was right for the nation as contemplated by the constitution, even if not mandated, in several of my write ups, I cannot but partake heartily with my compatriots in this ‘feel good’ moment of national rediscovery and renewal.  While still wishing the former president quick recovery as always, permit me to savor this moment with my fellow compatriots for a nation that has just been pulled back from the brink of an apocalyptic civil war through the callous and indifferent actions and inactions of one man and his hirelings who considered themselves more important than the entire nation.

Was I, much like others, initially sympathetic to the plight of the former president and called for prayers on his behalf as soon as the nation was told about his medical condition? You betcha! And I still do on purely humanitarian grounds, of course, even today. Did I for that reason reprimand those who had jumped at his resignation calls even before the plane ferrying him to his sick bed touched ground in Saudi Arabia? You bet I did, and I still do, because of their crass insensitivity and the rush for his resignation calls at that very early stage when all that was needed then was prayers, prayers, and more prayers, at the time before we knew what the nation was about.  I considered it immoral for anyone to seek to politicize the health of anybody including the president’s as many had sought to do in the early days of his hospitalization when no one knew how long it would take for him to come back home to resume duties. Like many, I smelled dirty politics and wasted no time blasting their calls as rather hasty and opportunistic. I was ready to give the president the benefit of the doubt in his failure to transmit a letter of his absence to the National Assembly, because in my thinking, he might have left the country in a very bad shape, and therefore unable to get such a notice across.  Many had in fact argued along similar lines, which was prudent and reasonable in the circumstances.

But Yar’Adua took our goodwill and well wishes for granted and treated the nation with utter contempt—in fact, something of a conquered territory, and it was time to tell him some home truths that Nigerians are NOT a conquered people. And as it turned out, he had no intentions whatsoever in transmitting such notice to the National Assembly as envisaged by the constitution he had sworn to protect and defend. He could sign a budget from his sick bed, grant an interview to the BBC and plot against his handover from his sick bed, but couldn’t get a simple notice requiring just a line across to the National Assembly in close to three months. It dawned on me like others that the man did not mean well for our dear nation and her suffering masses.  In three words: He blew it! To me from that point on he had committed an impeachable offense because he swore not only to protect the letters but also the spirit of the constitution and there he was riding roughshod over our constitution and seemingly getting away with it as the nation looked on helplessly and hopelessly with no sense of direction.

Many turned against him because of his arrogance and utter contempt for the Nigerian people. It was hardly surprising, therefore, that those who had resisted the calls for his transfer of power to his deputy in the National Assembly a few days ago turned against him and that’s why the motion for his ouster from power was “unanimously” passed, which was a far cry from the situation barely a week ago. Yes Yar’Adua blew it and he blew it big time! Yar’Adua completely lost our sympathy and empathy with the way he secreted his health condition from Nigerians as though it was something to be ashamed of, and the way and manner his lieutenants rubbished our constitution to keep him in power no matter what. Why go to such ridiculous lengths? Is he suffering from AIDS disguised as something else? Was he Nigeria’s divine King or Emperor? I knew we didn’t elect a King or Emperor in 2007, but a president who could be impeached for gross misconduct under our constitution which he swore to defend and uphold. I didn’t get it! 

In the concluding parts of an article published last week, I had this to say concerning Yar’Adua:

“Domestically, what becomes of the endemically faltering, vegetative Yar’Adua presidency in the light of the increasingly ferocious agitation for his resignation is beyond human divination and best left in the womb of time hopefully to be delivered later at the appointed hour as the hour grows ever closer and closer by the day. However, this much is clear: as long as the President of the greatest black nation on earth remains outside the shores of the country on medical grounds without formally handing over to his deputy, the agitation for his handover of power either temporarily or through outright abdication, will remain live and well in the polity because the issue has become a political fodder for mischief makers, and a cause for concern by well meaning citizens. These strident calls for resignation might reach a decisive crescendo no matter how many hurriedly contrived BBC interviews he grants to silence the agitation.”

And I capped it all with this:

“It is past time for the President to set a precedent and quit playing games because governance is not a game but a set of processes affecting the lives, hopes and aspirations of not one individual but over 150 million Nigerians and corporate institutions who look up to the government to reorder their lives and economic activities. The Nigerian authorities seem to be postponing the evil day because in the present condition of acute uncertainties something is bound to give one way or another unless and until the government decides to normalize the situation by leveling up with the Nigerian people. This national distraction must not be allowed to continue endlessly because it has negatively impacted on the nation’s development agenda whether the authorities admit it or not.”

And this is the clincher in the quote above: “…in the present condition of acute uncertainties something is bound to give one way or another unless and until the government decides to normalize the situation by leveling up with the Nigerian people.”

That was written long ago but published on January 25th 2010. Well “something” has given way as predicted and we’re all the happier for it. Aren’t we? Well possibly not everyone and certainly not former AGF Aondoakaa, Chief Tony Anenih, ex-Governor Orji Uzor Kalu, or the notorious Yar’Adua Kitchen cabinet members, for that matter. Turai, Yar’Adua’s wife, must have passed out! It was in their personal interests for Nigeria to be ruled or misruled by a dying offshore ruler who is fighting for his dear life from his sick bed in a foreign country, indefinitely. Unbelievable, you might exclaim, but it is the fact! Such things can only happen in our shores. 

However, in reviewing the blogs to feel the pulse of the nation, I came away with the realization that there are a few Nigerians out there, perhaps many, who, not being sufficiently abreast of the legal foundations of the action of the National Assembly in investing the Vice President with the title and power of acting president, have expressed some misgivings about the constitutional authority for the motion. It is, therefore, important, as a public service, to make certain clarifications regarding the constitutionality or otherwise of this historic motion that is bound to have constitutional reverberations throughout the democratic world and beyond.

 In that regard, it is important to note from the outset that this ground breaking motion was based on the “Doctrine of Necessity” and NOT necessarily on the BBC interview as a standalone factual/cum legal authority. The BBC interview was cited as furnishing the nation, and by necessary implication, the Nigerian parliament with “irrefutable proof that he (the president) is on medical vacation in the Kingdom of Saudi Arabia...,” as explained by the Senate President, David Mark.

No one would dispute that the president had publicly admitted to his present medical incapacity in that famous BBC interview. What is not altogether clear is whether that interview without more sufficiently grounds a motion for power transfer from the president to his deputy. From the wording of the motion it is crystal clear that that interview formed the fulcrum on which all else revolved in crafting and consummating this constitutional revolution. The question then is why the resort to the ‘Doctrine of Necessity’ in the face of the provisions of section 145 of the constitution if the interview would suffice as constituting a valid notice to the National Assembly as envisaged in section 145 of the constitution? To answer this question satisfactorily, we must reproduce the provisions of section 145 of the 1999 Constitution, which state as follows:

145. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President.

What do these provisions tell us? There are two important clauses to look for in the above provisions that determine everything in the present situation---(1)“a written declaration that HE IS PROCEEDING ON A VACATION or (2) that HE IS OTHERWISE UNABLE TO DISCHARGE THE FUNCTIONS OF HIS OFFICE,” (capitals mine).

With respect to the first part (1) dealing with vacation, it is submitted that the president can only transmit the notice when HE IS proceeding on a vacation, that is to say, BEFORE he actually leaves the country, and not AFTER he has proceeded on his vacation and has left the country for close to three months. The provision is clear with the words “when he is proceeding on a vacation” and not after he has proceeded on a vacation. The literal rule of statutory interpretation in the Interpretation Act, which enjoins judicial and all authorities to ascribe the ordinary, literal meaning to statutory and legal provisions, makes this submission unassailable and therefore beyond reasonable legal disputation. It is the law!

With that in mind therefore, the first part of these provisions can no longer be relied upon to transmit a letter to the National Assembly as it has been rendered INOPERABLE since the president had already left and has been outside the country for three months. Therefore, any purported transmission of a letter by the former president after he had left and stayed outside the country for nearly three months informing the National Assembly of his vacation, would be unconstitutional, illegal, and therefore null and void. It would have been medicine after death.  When the law specifies an act to be carried out precedent to another the first act must be done before the second act itself.  He must transmit the notice before he proceeds on his vacation. And since he had already proceeded on his vacation or medical leave it was already impossible for him to comply with that provision. It’s a pity that Almighty Aondoakaa did not know this.

With the first part rendered inoperable by the passage of time, it is the second part of the provisions that matters and therefore germane to the resolution passed by the National Assembly, and that is that the president transmits a written declaration that “he is otherwise unable to discharge the functions of his office.”  Unlike the first part dealing with vacation, it is submitted that this transmission CAN be done at anytime and from anywhere in or outside the country, before or after he has left the country, because it is not encumbered by the strictures of the first part. It is instructive to note that this is the part relied upon by the National Assembly to pass the motion. In citing the BBC interview as factual/cum legal foundation for the motion, the Senate deemed the interview where Yar’Adua addressed the nation about his medical condition as “irrefutable proof that he is on medical vacation in the Kingdom of Saudi Arabia, and has therefore complied with the provisions of section 145 of the 1999 constitution...”

But not so fast, Mr. Senate President! There is more to it than meets the eyes, legally speaking.

There is no question that the interview transmitted by the BBC would have constituted a sufficient notice or declaration by the president of his medical incapacity to discharge the functions of his office if it had been reduced in writing and directed to the principal officers of the National Assembly, in particular.  But that was not done in this case. It was a general broadcast to the world at large. At best it was a partial compliance or no compliance at all. The question is could an interview aired primetime and addressed to the world at large, and not specifically addressed to the principal officers of the National Assembly as stipulated in the provisions, constitute a transmission of “a written declaration” to the principal officers of the National Assembly?  With all due respect, I think the answer is a resounding, no! And the reasons are not far-fetched. Firstly, the president does not ordinarily transmit written communications to the National Assembly through interviews by foreign news media, not even by local media, but only through official governmental channels, in particular through his National Assembly Liaison. However, since the constitution itself does not stipulate the precise manner for the transmission of the notice in this particular case, this would appear not to be a serious flaw, and the BBC transmission would probably have sufficed had other conditions been met. Secondly, the interview was not intended as, and therefore could not be deemed as a transmission of a notice to the National Assembly. Thirdly, the interview did not carry the signature of the president. It was not a ‘written’ declaration, but a mere verbal exchange between the president and the BBC interviewer aired by the BBC for public information purposes only and nothing more. Even if the interview was reduced in writing and specifically addressed to the principal officers of the National Assembly, which would have been sufficient in the circumstances, the signature of the president is crucial and that’s absent in an interview. However, I’m not sure as to whether the president signed off on the contents of the interview. If he did, that would cure this defect in signification and authentication and make it official.

With these deficiencies in mind, therefore, I would respectfully submit that the BBC interview alone could not and did not meet the constitutional threshold as provisioned in section 145 thereof. But the important thing is that the National Assembly did not claim that its decision was based on the transmission of a written notice by the president to it. According to the senate president in the quote above, the interview only provided the senate an ”irrefutable proof” that the president is on “medical vacation in the Kingdom of Saudi Arabia,” which means that “he is otherwise unable to discharge the functions of his office.”  With this interview the president has made it known to the world that he is presently unable to discharge the functions of his office. But he is yet to transmit that information to the National Assembly as provided for unable section 145.  That was where the nation in general and the National Assembly in particular were stuck for weeks upon weeks with Yar’Adua, nudged on by his AGF Aondoakaa, bluntly refusing to bulge. There was no going around or over that critical issue of transmitting the notice. And they thought they had the nation on its jugular with no escape route.

In the absence of a written transmission of that notice to the National Assembly therefore, the National Assembly had to be inventive and resourceful and used the BBC interview to fill in the void. The question is, can it do so, constitutionally speaking? The answer is emphatically yes, under the Doctrine of Necessity, in the interest of the nation! The common doctrine of necessity is part and parcel of our legal system and finds application in both private and public law fields. There are truckloads of legal authorities instancing its applicability but I would use a layman’s hypothetical case to illustrate it, some of which mirror or close to actual legal cases. The doctrine of necessity could be invoked to legalize an otherwise illegal or unconstitutional act.  For example, if a raging inferno is approaching a human settlement from a protected National Park, it would be perfectly legal to clear the undergrowth between the fire and the human settlement by burning it off in order to form a buffer zone to prevent the fire from reaching the human settlement under the doctrine of necessity, where it would otherwise be illegal to set fire on the undergrowth.  Again, suppose a tractor trailer is hurtling down a slope on a path of a school bus or parked cars with children inside, it would be perfectly legal to blow up the tractor trailer or do anything to it to prevent it from smashing into the school bus or parked cars packed with children and if any damage is caused to the tractor trailer in the process it is excusable under the doctrine of necessity and no criminal or civil liability is incurred therein.  Or suppose, for that matter, there is an overhead bridge made up of combustible materials connecting a building on fire with another building not on fire as yet, and the fire is already approaching the bridge from where it would inevitably leap on the other building not yet on fire, and someone blows up the connecting bridge to prevent the fire from crossing to the other building, ordinarily blowing up the connecting bridge would be a serious crime under the law, but in this instance, it would be excused under the doctrine of necessity, and no criminal or civil liability would be incurred therein.

Thus an otherwise criminal act is excused on the doctrine of necessity. The doctrine of necessity is applicable in all such and other situations where inaction puts the subject or object in a condition or situation of grave peril if nothing is done and done fast to save the situation.  In the sphere of public law, it is done to fill in a gap where the law or constitution is deficient in material particular and there is a burning need to meet some exigency in a situation not contemplated by the law or the constitution as the case may be.  As the senate president explains:

 “The doctrine of necessity requires that we do what is necessary when faced with a situation that was not contemplated by the Constitution.”

What was not contemplated by the constitution?  It was not contemplated by the constitution that the president would neglect, fail, and/or refuse to transmit a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office even when he has told the world in a BBC interview that he is medically incapacitated to discharge the functions of his office thereby leaving the nation without a head. That is a dangerous situation that must be addressed immediately because the lives and well-being of 150 million Nigerians were at stake. Thus if there was ever a situation deserving of the invocation of the doctrine of necessity, this was it. The National Assembly has therefore used Yar’Adua’s hurriedly contrived BBC interview intended to frustrate an earlier debate on his absence, to good effect. It was a brilliant move that was unheard of in these parts of the globe.

What an irony! God moves in mysterious ways.  Yar’Adua supplied the information that has been used to nail his political coffin.  He should have known that there is a limit to the dribbling. With this courageous and patriotic act, the National Assembly has shown that Nigeria is more important than any individual, including the president.  What it has done is nothing short of a constitutional revolution that will reverberate in the halls of universities and parliaments all over the world, especially in common law countries.  The Nigerian parliament has indeed come of age and has taught the world a lesson or two in the revolutionary manner it has handled this issue of a recalcitrant and intransigent president who refused to hand over power even when he had publicly admitted his medical incapacity in a BBC interview that was aired primetime. He deserves to be impeached for gross misconduct by undermining the nation’s constitution or otherwise shoved aside for having abdicated his office voluntarily.  Thinking of returning to Aso Rock? Sorry, there is no vacancy in the presidency. He has no office to return to even if he’s rushed into the country in the dead of night in a hired air ambulance at public expense by those individuals intent on holding the nation to ransom for fear of losing power and all that goes with it.

The nation must be told without delay how much of the tax payers’ funds have been spent, wasted, or otherwise used to bribe people since the Yar’Adua saga began. It is incumbent on President Jonathan to furnish the nation information regarding the huge medical bill incurred by Yar’Adua in Saudi Arabia, because it is our money, not his or his family’s largesse.

And in the fullness of time all the unpatriotic individuals that conspired to hold the nation hostage to their personal/regional interests must be made to fully account for their treachery against the nation, if only to serve as deterrence to other like minded individuals milling around the corridors of power. They’re responsible for the totally unnecessary trauma the nation went through these past few months, and the very serious damage done to the country’s image abroad. Someone has got to answer for that. They must all be made to understand that power does not recognize its former owner—it only knows its present owner! For pulling an entire nation of over 150 million individuals, just like them, through all this humiliation and sleepless nights, some heads deserve to roll and roll now! I’m happy that former AGF, Akaase Aondoakaa, who had made himself a stumbling block on the path of our national aspirations, has been shown the door out at the Ministry of Justice. He was the Minister of Injustice and the Attorney-General of Corruption. The nation had had enough of his shenanigans and legal obfuscations. Good riddance to bad rubbish! But there are so many Aondoakaas in government. Many more like him should find that door wide open for their exit to assuage our totally bruised national psyche.  The nation is asking for their blood and their heads, figuratively speaking.

Gosh! God is, indeed, a Nigerian.

Winners and Losers

Good job, David Mark, Dora Akunyili, and grudgingly, Speaker, Bankole.  However, this victory belongs to all those statesmen, including former president Olusegun Obasanjo who stuck his neck out to call for Yar’Adua’s resignation at a time when all others whose voices carry weight in the society chose to keep mum and were too afraid to speak up while the nation was stewing in Yar’Adua’s juice. OBJ’s courageous call marked the turning point that brought out the Dora Akunyilis and the other leaders, to stand up for what was right. The fact that he was instrumental to Yar’Adua’s installation as president was critically important and lent greater weight to his call.  When his efforts at the PDP BOT meeting failed, he didn’t stop and coiled up like a beaten snake, but went public prime time.  His call split the PDP leadership right down the middle and Yar’Adua men did not take kindly to it. In fact, after OBJ made his call I knew the game was over and the game changed.  PDP leadership pounced on him and called him names. Yar’Adua’s kitchen cabinet was livid and cried blue murder, accusing him of betrayal because he was granted access to Yar’Adua’s sick bed and knew his true health condition leading to his call. That is the mark of a real leader who would damn the consequences and do what’s right in the interest of a nation he had helped to save and build. For that singular act of courage, OBJ deserves national accolades. Whatever blemishes he had prior to this time for helping to install a lame president who refused to go away even for a moment, have been washed away.

Kudos also go to former heads of states, including President Shehu Shagari, General Yakubu Gowon, and the former chief justices, who pitched in when it mattered most. They put the nation first before Yar’Adua. Never to be forgotten also is Professor Wole Soyinka, for his protest in Abuja, and of course, the ever vigilant Nigerian press and civil society. And don’t we dare forget the venerable Chief Edwark Kiagbodo Clark, who, as always, stood up on the side of history not because he stands to gain anything personal, but to move the nation forward in the right direction.  And last but by no means the least, are the much maligned governors led by Governor Bukola Saraki of Kwara state. They stood firm and called Yar’Adua’s bluff. Their resolution was decisive and most timely, and they made things happen! This was, indeed, a job well done.  Never before had this nation risen up in one accord to demand justice and fair-play and got it.  We must never forget the members of the Armed Forces who resisted calls from some unpatriotic Nigerians to seize power unconstitutionally as a way out of the logjam. Their patience to allow the civilians work out their problems democratically is a welcome departure from the past, and they deserve nothing but our gratitude for allowing democracy to take roots.

The losers, of course, are the PDP leadership led by Vincent Ogbulafor and the so-called Kitchen Cabinet. It’s possible though that unlike the very courageous ones like OBJ and Akunliyi, the PDP leadership might have been playing a double game by publicly voicing support for Yar’Adua while working against his interest behind the scenes. We don’t know that though and they must be judged by their public utterances and actions. Other losers include ex-Governor Orji Kalu, who stuck to Yar’Adua like a second skin when Yar’Adua’s own skin was already falling off. Shame on all those who kept quiet and refused to speak out in the face of tyranny! They’re a disgrace to manhood. Shame on the likes of Prof. Tam David West, who refused to tow the path of wisdom and constitutionality, by sticking with Yar’Adua till the bitter end! He is full of hate for Goodluck Jonathan. Too bad, like it or not, Goodluck Jonathan is now his President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, not the comatose Musa Yar’Adua. David West defense of Yar’Adua reminds one of his defense of General Buhari’s tyrannical military junta.  I suppose he’s a friend of the military that buttered his bread even as the same military disgraced him out of office under the self-styled Evil Genius, IBB, who has gone AWOL, perhaps still mourning his beloved and lovable Maryam. On that account alone he is forgiven for not standing up for what’s right when it mattered most. How about Chief Tony Enahoro, Abubakar Rimi, Chief Tony Anenih, Chief Ebenezer Babatope, et al? They went AWOL! But by far the biggest loser of them all is Yar’Adua’s Communication Director, Olusegun Adeniyi, who fed the nation with lies and half truths while it lasted. He is a disgrace to his profession considering his vitriolic column on THIS Day newspaper during the OBJ years. He ended up serving a president who was ready to sink with the nation and didn’t have the guts to call it quits or stand up for what’s right. He failed to pass the standard with which he judged others. Because of his betrayal I now regard THIS Day and other columnists who rant against the establishment with an abiding suspicion because the moment they have the opportunity they’ll jump to the other side and do worse things. I now take their criticisms as nothing but veritable job applications to join the governments they bash in their weekly columns. After all Olusegun Adeniji was appointed a member of the Extractive Industry think tank under OBJ! He was later to be found running around interviewing then candidate Yar’Adua whom he applauded to high heavens in his column as the best thing to have happened to Nigeria. Little did we know then he was looking for a job in the corridors of power! And as they say, the rest is history. They all betrayed our nation and posterity will never forgive them for helping to prolong this man-made crisis in our dear fatherland.

Change Has Come to Nigeria!

 And if you doubt this, go ask former AGF Aondoakaa—the Iroko and Grand Strategist of the Yar’Adua administration specializing in legal gymnastics to protect the corrupt in government. He will be the first to tell you that change has come to Nigeria as the ground shifted from under his feet while standing his ground. A colossus under the defunct administration, the nation will be spared of even his corruptive shadows. He has been demoted to the position of Minister for Special Duties. One of the papers (This Day) reported that “Aondoakaa looked like a battered man.” He may very well end up looking like one in jail in the fullness of time.  For now, however, let him rot away in oblivion—far away from the civilized world, in the Ministry for Special Duties where none will see his face until his fate is eventually decided.  Again, I say good riddance to bad rubbish!  Others like him should learn their lessons.  He was Nigeria’s worst case scenario.  Retaining Aondoakaa would have been a public relations disaster for President Jonathan.  Jonathan should go a step further to root out all Yar’Adua’s Kitchen Cabinet members, because they will most certainly betray him and undermine his administration every step of the way. He should know better than to keep them as moles in his administration that will be spying on him and reporting to Yar’Adua. He must be deft with the use of state power and quickly move to establish himself as President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria not only in titular, but in substantive sense as well, because as Yar’Adua and his AGF have found out to their chagrin, power is transient and could slip out just as quickly as it slipped in. 

More than that, however, he must move with deliberate speed to deliver the goods to Nigerians in the very critical areas of security, power supply, and energy. He should immediately put into the dumpster where it belongs, Yar’Adua’s 7-Point Failure masquerading as a developmental agenda and concentrate on quick deliverables as mentioned above.  He has neither the luxury of time nor the funds to mess around with the amorphous Yar’Adua agenda that even his own CBN Governor, Mr. Sanusi, had advised him against, but to no avail. He was a lost dog that wouldn’t listen to the whistle of his owner.

A word, they say, is enough for the wise.  I’ll leave it at that for now. But suffice it to restate that “Change has come to Nigeria!”

And this is wishing our newly minted President God’s speed and protection from the enemies of democracy and the nation.

Long live President Goodluck Ebele Jonathan!

Long live the Federal Republic of Nigeria!

Franklin Otorofani, Esq.

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