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Respect Nigerians coalition on the state of the nation

December 8, 2009

Ladies and Gentlemen of the Press: We, members of Respect Nigerians Coalition have been following national development since President Umaru Yar’Adua left the country for treatment abroad and hereby wish to make the following Statement:


 The structure of the Nigerian Constitution indicates that the singular most important figure in the power relations within it is the holder of the office of the President of the Federal Republic of Nigeria.  Section 5(1) vests the executive powers of the Federation in him.  Section 131(2) establishes him as the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation. Being an Executive President, it is not surprising that section 138 makes clear that he “shall not, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever”. Section 148(2) mandates him to “hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation for the purposes of the day-to-day running of government business. Also, the President is constitutionally the Chairman of the Council of State, the National Defence Council, the National Security Council and the National Police Council. All that the above indicates is that the Constitution envisages a President able and available to do these various duties, not an absentee President.

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Section 145 of the Constitution, having envisaged situations where the President might be temporarily away or might not be in a position to perform the functions of his office states as follows: “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”. Following from section 144 which deals with conditions under which the President would permanently cease to hold office, section 145 deals with what should happen if the President is to be temporarily out of office, say to go on vacation or to travel to a foreign land for medical treatment for such an infirmity of body or mind which has not and is not likely to render him permanently incapable of discharging the functions of his office.

Without a doubt, activation of this provision is the only act that confers the position of constitutional Acting President on the Vice-President and the only basis he could have “acted” for the President. But because it was not activated, even when situation required that the President does so before he left for Saudi Arabia, we now have a logjam in the system where the Vice-President cannot act substantively to sign important piled-up documents or give approval to certain matters of state of the crucial kind because he simply has no power to sign or approve them as Vice-President. This is because as Vice-President, not Acting President, he is merely leading the day-to-day government on routine matters, as conventionally but not constitutionally stipulated. But if section 145 had been activated by the President, the Vice-President would be the Acting President with powers to do everything the President could have done in person until his return.

Perhaps, there are many political calculations that could have led the President not to activate section 145, but whatever these are, they will always look short-sighted when considered under the full implications of the provision and the obvious benefit it would have brought to the nation and even the President himself. Of course, it is a discretionary power, but like all discretionary powers, the President is expected to exercise it reasonably. We believe that for a President whose poor health is an open secret and who has had to visit foreign countries half a dozen times in the past two years for medical treatments (not mere medical check-ups) and whose illnesses, despite the best efforts of his official handlers to pretend otherwise, are terminal at worse and serious at best, the best thing he could have done was to activate section 145 before being evacuated for medical treatment this time around.

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Crucially, the “loss” of power is only temporary and only he, the President again has the discretion to make it permanent. He can reclaim his position by simply transmitting to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is back and now fit to discharge the functions of his office. Unlike the American system under the 25th Amendment (part of which we copied), the Vice-President or Acting President along with the rest of the Federal Executive  Council cannot challenge his declaration that he is fit to continue discharging the functions of the office of President. Under the Nigerian system, he has full protection between when he temporarily hands over and when he writes to reclaim the position, yet Yar’Adua did not use this risk-free provision! Evidently, the country needs firm leadership now. The Vice-President is the natural person to act for the President while he is away; but he needs a constitutional basis to act fully, especially where national security issues could arise.

Respect Nigerians Coalition believes that those calling on the President to resign are misdirected. First, resignation is a personal decision to be taken by the office holder if in their judgment they think it is the right thing to do. President Yar’Adua obviously does not feel it is the right thing to do over his illness, because if he feels so, he would have resigned long before now. Secondly, resignation under section 306 of the Constitution requires that the President does so “by writing under his hand” addressed to the Senate President. Thus, for such a resignation to be valid, the President must be in a physical and mental condition to sign such a resignation letter. From all we can see, the man has not been heard from publicly since he was admitted into hospital. It is difficult to accept the claims being made by sundry persons who claim to have spoken to him, because if indeed he is talking, his priority ought to be to speak to Nigerians, even if briefly, just to reassure them. If he is not talking publicly, most probably because of the fragile state of his health, then it is futile asking him to resign. More importantly, resignation is not a constitutional option in a situation like this.
 
We believe that the Federal Executive Council meeting of 2 December 2009 missed an opportunity to get the issue sorted. While it is understandable that none of the members were prepared to stick out their necks or sacrifice their political future by not towing the party line, they needed not to have come out swinging at Nigerians for asking questions. They could have done either of two things. If in their judgment it was not yet time to invoke section 144, considering that all their spokespersons were adamant that the President was recovering “remarkably well”, then they should have prevailed on him to activate section 145, so as to give the Vice-President the constitutional leeway to properly act on his behalf while he recuperates. If that was done, we would not be where we are right now.
 
As things are, the more the days pass without Nigerians hearing from the President, the worse the situation. It is our considered view that if the President stays away for one month, without activating section 145, the Federal Executive Council must do their constitutional duty by invoking section 144. Thus, we are using this opportunity to put the Federal Executive Council and Nigerians on notice that if by the very beginning of next year, the President is still away or still not resuming his functions as President, Respect Nigerians Coalition will mobilize Nigerians to prevail on the Federal Executive Council to discharge their patriotic and constitutional duty as required by section 144. As much as we feel for the President in these trying times, no man is bigger than the nation. There is a country to run and those put in charge of doing so by our Constitution must act accordingly. If they are not acting as they should, it is our duty as citizens to make them do so. Respect Nigerians Coalition will not shirk that responsibility when the time comes.
 
We call on Nigerians to continue to be vigilant as we look forward to a final constitutional settlement of the matter once it is clear that the President is not fit to continue functioning in that office. That fact will be clear to us if after a full month he is not back on seat.
 
Thank you.
 
 
 
Signed:
 
Emeka Enechi
Tosin Awotesu
Abdul-Aziz Jimoh

 

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