Introduction: I thank the entire staff and students of the Faculty of Law, Adekunle Ajasin University for inviting me to be the Guest Speaker at the 10th Anniversary Lecture of the Faculty. I am indebted to the Dean, Professor Yemi Akinseye- George for the indulgence to address this distinguished audience on Appraising the Role of the Legal Profession in creating an ideal Democratic Society. In view of the controversy surrounding the resolution of the National Assembly which made the Vice President the Acting President I intend to address the intervention of lawyers in the resolution of the programmed constitutional confusion that we are currently witnessing in the country.
Lawyers and the resolution of political crisis in Nigeria.
The first Nigerian lawyer, Christopher Sapara Williams was called to the English Bar in 1886. He identified the historic role of lawyers in a colonial environment when he said that “the lawyer lives for the advancement of his society”. Regrettably, Nigerian lawyers of his era concentrated on their legal practice without getting involved in the struggle of the Nigerian people for political freedom. Even when the Nigerian Bar Association was inaugurated in the early 1950s its objectives did not include playing any meaningful role in defence of the interests of the Nigerian people.
However, Chief Obafemi Awolowo and a handful of lawyers took active part in the nationalist struggle. H.O. Davies was a member of the defence team of lawyers who stood for the Mau Mau fighters in Kenya. Alao Aka-Bashorun collaborated with President Kwame Nkrumah of Ghana in the struggle for the decolonization of the African continent. Regrettably, the Nigerian Bar Association (NBA) stood aloof when its services were highly required in challenging gross human rights violations under the British colonial regime. As I said elsewhere:
“In spite of the special placement of lawyers in the socio-economic matrix the NBA distanced itself from the anti-colonial struggle of the Nigerian people. Even when political independence came under threat in the first republic and some of its leading members became victims of state repression the NBA failed to speak out in defence of human rights”
The content of the legal education in post-colonial Africa failed to take cognizance of the law as a reflection of the society. Nkrumah was compelled to task African lawyers to apply and interpret the law to meet the yearning and aspirations of the African people. According to him:
“In my view, legal education in Africa should be founded on a grasp of the systems of law which exist in our continent to-day. It must also be based upon a sound knowledge of progressive economic and social theory. We must avoid the tendency to suppose that the form in which law is administered is more important than the content of the law. Law is conception, which is in some mysterious way universally applicable without regard to the being to the economic and social conditions of the country in which it is being applied. The reserve is true. The law should be the legal expression of the political, economic and social and condition of the people and of their aims for progress. It is the height of absurdity to attempt to assess the legal institutions of any country by adopting a formalistic yardstick which completely disregards the material content of the law and measures justice or injustice solely by procedural rules. Unfortunately such an approach too often marks the attitude of even the most eminent lawyers towards people with whose economic needs and social and political aims they do not see eye to eye.”
Out of 50 years of political independence Nigeria experienced about 30 years of brutal military dictatorship. Civil rule of barely two decades was characterized by gross abuse of office by the political class. The democratic rights of the people were violated with impunity. A key impediment to the consolidation of democracy has been the manipulation of the electoral process. The rule of law has been treated with disdain by governments which engage in executive lawlessness and disobedience of court orders. Apart from activist lawyers who have consistently resisted authoritarian rule the NBA has failed to put up a stiff resistance against the subversion of the rule of law in the country.
While the NBA had a symbolic one day boycott of courts to protest the unprecedented rigging of the 2007 General election the role of many a senior lawyer in justifying electoral malfeasance has undermined the democratic process. Through dilatory tactics, riggers of election have been kept in office for 3 or 4 years. On many occasions the Supreme Court has been requested to reverse itself without any justification in a manner that has further exposed the law to ridicule.
Attorneys-General who are the official leaders of the bar have terminated cases of serious criminal offence and electoral malpractice filed against thugs and other anti-democratic forces. In particular, the office of the Attorney-General of the Federation was until recently, taken over by highly influential criminal suspects who are wanted at home and abroad to answer charges of fraud, money laundering and corruption. In the process, the legal profession became a laughing stock among Nigerians. The failure to discipline Attorneys-General and senior lawyers who have sabotaged the rule of law has called the integrity of the NBA to question. However, the NBA deserves commendation for its vigorous campaign for electoral reform, constitutional review and defence of the rule of law in recent time.
In an oppressed society like Nigeria it is the duty of lawyers to defend the defenceless, protect the rights of the people, guide against all forms of oppression and inhuman treatment. The lawyer as an individual or body of lawyers in any nation must live up to his or its responsibilities as a dogged fighter of the oppressed, as a beacon of light that will penetrate the darkness of the environment, as a courageous voice of the hopeless and heartless and, perhaps, the sane and lonely voice that will bring powers and principalities to the path of rectitude whenever they go wrong. Notwithstanding whose ox is gored the NBA has rightly spoken against the manipulation of the Constitution by the Federal Government with respect to the prolonged absence of President Yar’adua.
The President’s Health and the Subversion of the Democratic Process.
On November 23, 2009 President Umaru Musa Yaradua was rushed out of the country to the King Faisal Specialist Hospital in Jeddah, Saudi Arabia. Even though the Federal Government urged Nigerians to pray for the speedy recovery of the President, information concerning his state of health has since been shrouded in secrecy. In the circumstances, the President’s health has remained a subject of speculation in the local and foreign media. Some of the dangerous rumours which have been circulated on the matter have threatened the security and political stability of the nation. Even when the President was in coma at the Intensive Care Unit of the foreign medical centre the Executive Council of the Federation declared that the President was not incapacitated to govern the country!
In order to avert a major constitutional crisis a Group of 53 Nigerians called on President Yaradua to resign or allow the Executive Council of the Federation to pass a resolution to the effect that he was incapable of discharging the functions of his office. Such a resolution, argued the G53, would enable the Senate President to appoint a medical panel to confirm the fitness or otherwise of the President to continue in office pursuant to Section 144 of the Constitution.
The President ignored the call while the Peoples Democratic Party, the Governors’ Forum and the Executive Council of the Federation condemned the patriotic stand of the G53. Instead of complying with the extant provisions of the Constitution Nigerians were directed by the Federal Government to engage in prayer sessions for the speedy recovery of the President. Meanwhile, presidential powers were hijacked by a triumvirate of unelected persons who hijacked power and illegally ruled the country on behalf of the President who has been held incommunicado.
However, in his January 12, 2010 interview in the BBC Hausa Service President Yaradua thanked Nigerians for their prayers and disclosed that his doctors were yet to determine when he would be discharged from the hospital to return home “to resume duty”. Thus, by his own admission the President has denied the official lie that he has been ruling the country from his sick bed in Saudi Arabia.
When it became public knowledge that pressure was mounting on the armed forces to stage a coup I filed an action at the Federal High Court with a view to compelling President Yaradua to transfer power to the Vice President in line with the provisions of the Constitution. Two other concerned citizens and the Nigerian Bar Association equally challenged the refusal of the President to observe the provisions of the Constitution.
In a desperate bid to prevent the Vice President from assuming the post of the Acting President the Attorney-General of the Federation caused a fresh suit to be filed on the same subject matter. Barely a week later the case was heard and determined. In granting the reliefs sought by the Plaintiff the presiding judge, the Honourable Justice Dan Abutu, the Chief Judge of the Federal High Court held:
“Before the Vice President can perform the functions of the President under the Constitution as Acting President, the requirement of section 145 of the 1999 Constitution relating to transmission by the President to the President of the Senate and the Speaker of the House of Representatives must be complied with. As Acting President the Vice President performs the functions of the President under the Constitution in his own right as the Acting President. The power which he exercises is not the power delegated to him by the President.”
The application to have my case transferred to another judge on the ground of likelihood of bias was granted by the Chief Judge. Nevertheless, he proceeded with the other two cases. Curiously, the Court held that the President was not under an obligation to transmit a written declaration to the Senate President and the Speaker of the House of Representatives. However, the Court later realized the absurdity of such interpretation when it turned round to hold that there is no provision for offshore presidency in the Constitution.
As the constitutional crisis was not resolved by the Court the Save Nigerian Group staged protests at Abuja, Lagos, London and New York. These events led to the renewal of pressures on the Executive Council of the Federation and the National Assembly to address the crisis of power vacuum in the presidency. While the federal cabinet continued to insist that the President was not incapacitated it was confirmed that he was on life support machine. In a bid to divert the attention of Nigerians the National Assembly embarked on a voyage of discovery. The Senate summoned the Secretary to the Government of the Federation, Alhaji Yayale Ahmed for briefing on the state of the President’s health. On its own part the House of Representatives passed a resolution to constitute a panel of 6 members to visit the President in Saudi Arabia. Since neither Alhaji Yayale Ahmed not the visitation team of legislators could speak authoritatively on the president’s health why did the National Assembly not ask for a medical report prepared by the President’s physician?
On the interpretation of Section 145 of the Constitution.
In order to have a grasp of the constitutional crisis occasioned by the prolonged absence of the President it is pertinent to call attention to Section 145 of the Constitution which states:
“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”.
In total disregard of the provisions of Sections 145 and 190 of the
Constitution President Obasanjo and the governors who were in office from 1999 – 2007 did not transmit written declarations to the leaders of the various legislative houses whenever they were proceeding on vacation or unable to discharge the functions of their respective offices. Hence, when President Yaradua disappeared from the country for 17 days in September 2008the National Assembly did not protest such brazen violation of the Constitution. Not only was the President not called to order the Deputy Senate President was recently quoted as saying that President Yaradua could be on medical vacation for a year or more!
From the foregoing you will agree with me that Section 145 admits of no ambiguity. But the Federal High Court has stated that the transmission of a written declaration to the National Assembly leaders is at the discretion of the President. Curiously, the Court based its position on the power of the President to assign duties to the Vice President and Ministers of the Government by virtue of Sections 5(1) and 148(1) of the Constitution.
The proposition that Section 145 is discretionary suggests a vacuum in the presidency whenever the President is on vacation or otherwise unable to discharge the functions of his office. Assuming without conceding that duties have been assigned to the Vice President and the Ministers, the Court has failed to take cognizance of certain powers of the President which can only be exercised by him directly or the Vice President in an acting capacity.
For instance, by virtue of Section 147 of the Constitution the President is empowered to appoint Ministers to serve in the government. The President cannot assign that duty to the Vice President. Neither can the President delegate to the Vice President the power of assigning duties to the Ministers. The power to appoint the Chief Justice of Nigeria vested in the President can also not be delegated to the Vice President or any Minister in the Government. In the same vein, the President who is required by section 148(2) of the Constitution to regular meetings with the Vice President and the Ministers cannot delegate that power to the Vice President.
It was further held that Section 5 of the Constitution does not delineate the scope of the powers that may be assigned by the President or the manner of such assignment. With respect, this position is completely untenable as the executive powers vested in the President may be exercised by him directly or through the Vice President and Ministers or offices in the public service of the Federation subject to the provisions of the Constitution and the provisions of any law made by the National Assembly.
It has also been argued in some quarters that if President Obama could govern America while on vacation in Hawaii in the United States, President Yar’Adua is competent to administer Nigeria from his sick bed in Saudi Arabia. As the comparison is misleading it is germane to examine the relevant provisions of the constitutions of both Nigeria and the United States. It is common knowledge that President Obama held meetings and consultation with Ministers and Security Chiefs on the attempted bombing of a North West airline bound for Detroit, USA by a Nigerian, Umar Farouk Murtalab last December. Even though, President Obama was on vacation, he took effective charge of the situation. He was able to do that because the American President is not required to transfer power to his Vice President while on vacation by virtue of section 3 of the 25th Amendment.
The Application of the Doctrine of Necessity
When it became clear that the President and the Executive Council of the Federation were not prepared to comply with the provisions of Sections 144 and 145 of the Constitution both Chambers of the National Assembly accepted the BBC interview granted by President Yaradua on January 12, 2010 as the transmission of a written declaration. Accordingly, the Vice President, Dr. Goodluck Jonathan was directed to assume the post of the Acting President. Since the action of the National Assembly was predicated on the doctrine of necessity it has continued to generate controversy across the broad political spectrum.
Those who criticized the action of the National Assembly have failed to appreciate that a “written declaration” may not be in writing at all times. In the case of Obafemi Awolowo University v. Dr. Onabanjo (1991) 5 NWLR (PT 191) 549 the appointment of the respondent as a lecturer was subjected to a written confirmation after a probationary period of 3 years. Even though he was allowed to work for 4 months after the probation the appellant fired him on the ground that his appointment had not been confirmed in writing. In rejecting the position of the Appellant the Court of Appeal presided over by Mustapha Akanbi JCA (as he then was) held that the lecturer was deemed to have been re-appointed and confirmed since after the probation, he was allowed to continue working and duly paid for his service.
While it may be said that the Respondent’s employment was confirmed on the basis of estoppel by conduct it was also established that a written confirmation might be deduced from the circumstances of a given case. It is therefore grossly misleading to say that the written declaration of the President to the leadership of the National Assembly has to be in writing even when he is said to be in coma on a life support device.
In line with the provisions of Section 148, 214 and 217 of the Constitution it is the President that is exclusively vested with the powers to hold regular meetings with the Vice President and Minister, give directives to the Inspector-General of Police and deploy members of the armed forces to aid the civil authority in the maintenance of law and order in any part of the federation.
The Vice President has presided over the weekly meetings of the Executive Council of the Federation and received letters of credence from foreign envoys posted to Nigeria. When religious riots broke out in Bauchi and Plateau States last December the Vice President directed the Inspector-General of Police and the Chief of Army Staff to restore law and order. The order was promptly complied with and peace was restored. Equally obeyed were the directives given to the Inspector-General of Police to ensure that the Anambra State gubernatorial election of February 6, 2010 was conducted without violence. The aforesaid “illegal” directives which were carried out by the Chief of Army Staff and the Inspector-General of Police prevented a break down of law and order in the country. Not only were those directives not challenged they were hailed by Nigerians. Yet they were all justified under the doctrine of necessity.
The actions of Dr. Jonathan are not without precedent. It was common knowledge that there was no love lost between President Obasanjo and Vice President Atiku Abubakar. But the latter never hesitated to exercise presidential powers whenever the former was out of the country. Either by accident or design, President Obasanjo was outside the country in 2004 when armed thugs with the connivance of the police abducted Dr. Chris Ngige and removed him as the governor of Anambra State. The Vice President ordered the Inspector-General of Police to reinstate the embattled governor. When told that the President was privy to the despicable conduct the Vice President made it clear to the police chief that he was in charge of the presidency at the material time. The governor was restored in line with the “illegal” directive of the Vice President. If the reinstatement of the governor had been challenged the Vice President would have rightly pleaded the doctrine of necessity.
The doctrine of necessity has been said to be the act of making legal what is otherwise illegal by circumstances. As far as the common law or bourgeois jurisprudence is concerned all decrees promulgated by revolutionary or military governments are justified by the doctrine of necessity. The Constitution of the Federal Republic of Nigeria (Promulgation) Decree No 24 of 1999 (otherwise called the “1999 Constitution”) is one of such laws. The rationale for the doctrine of necessity was succinctly articulated in the case of Madzimbamuto v. Ladihardner-Burke (1969) 1 A.C. 645 at 740 when Lord Pearce said:
“The principle of necessity or implied mandate is for the preservation of the citizen, for keeping law and order, rebus sic stantibus regardless of whose fault it is that the crisis had been created or persists”.
As an integral part of the common law the doctrine has also been applied in the cases of Phillips v. Eire (187) 6 L.R.Q. B 1, State v. Dosso (1958) 2 P.S.C.R. 180 and Uganda v. Commissioner of Prisons (1966) E.A.L.R. 514. On the power of the legislature to apply the principle the case of Attorney-General of the Republic v. Mustapha Ibrahim of Kyrenia (1954) 3 SC C.1. In that case due to the secession of Turkey from Cyprus the members of the judiciary and the legislature were unable to function in accordance with the Constitution. The Greek members of Parliament passed a law which established a new Supreme Court. In upholding the validity of the law Josephides J. held inter alia:
“I have no hesitation in arriving at the conclusion that in these exceptional circumstances it was the duty of the government through its legislative organ, to take all measures which were absolutely necessary and indispensable for the normal and unobstructed administration of justice. I agree with the submission of Respondent’s counsel that the measures taken should be for the duration of the necessity and no more. This is also conceded by the Attorney-General of the Republic.”
Since the doctrine of necessity is not an alien concept in our jurisprudence it is submitted that it was not out of place to have invoked it in resolving the constitutional cauldron in which the nation found itself. However, it is my view that the resolution of the National Assembly ought not to have gone beyond the acceptance of the BBC interview of the President as his “written declaration” to the leadership of the National Assembly. In other words, it is not the resolution of the National Assembly but the acceptance of the BBC interview as the written declaration of the President in the circumstances that enabled the Vice President to assume the post of the Acting President. However, the invocation of the doctrine of necessity by the National Assembly to justify its action cannot be faulted. In Lakanmi & Anor v. Attorney-General of the West & Ors. (1970) NSCC the Supreme Court held that the transfer of power by the Acting President to the military high command on January 16, 1966 was justified under the principle of necessity. In particular, the apex court stated:
“We think it wrong to expect that constitution must make provisions for all emergencies. No constitution can anticipate all the different forms of phenomena which may beset a nation. Further, the executive authority of the Federation is vested in the President by Section 84 of the Constitution and we think in a case of emergency he has power to exercise it in the best interest of the country, acting under the doctrine of necessity.”
The Supreme Court has also held that the principle of necessity may permit an exception to the rule of nemo judex in causa sua (a person should not be a judge in his/her own cause). Thus, in ex parte Olakanmi & Ors. v. Obas Ogunoye & Ors. (1985) 1 NWLR (PT 4) 652 Mohammed Bello JSC (as he then was) held:
“The rule of necessity permits an adjudicator to be a judge in his own cause, if his participation is absolutely necessary to arrive at a decision. Thus, in its decision of 15th December 1980, the Supreme Court of United States of America invoked the rule of necessity and nullified as unconstitutional two Statutes by which the Congress had reduced the salaries of Federal Judges including the Justices of the Supreme Court”.
Notwithstanding that the Vice President has begun to function as the Acting President the Executive Council of the Federation should, without any further delay, pass a resolution to the effect that President Yaradua has become incapacitated to discharge the functions of his office. The resolution will enable the Senate President to set up a medical panel to ascertain the fitness or otherwise of the President to continue in office pursuant to Section 144(2) of the Constitution. If the President is declared medically unfit to govern the country by the medical panel he is required to resign or be removed from office. At that stage the Vice President shall assume the post of the President and then appoint a Vice President in accordance with the provisions of Section 146 of the Constitution.
In spite of the so called imperfections in the resolution of the National Assembly it has given Nigerians another opportunity to engage in a genuine electoral reform that can lead to popular democracy. The Constitution (Promulgation) Decree No 24 of 1999 otherwise called the “1999 Constitution” ought to be comprehensively reviewed at a Sovereign National Assembly or in a National Assembly peopled by legislators elected by Nigerians in a fair and free election. This is the time to lay a solid foundation for a democratic structure that can stand the test of time.
No doubt, the intervention of the progressive segment of the civil society led by the SAVE NIGERIA GROUP contributed significantly to the resolution of the self imposed constitutional crisis. Since the neo-colonial ruling class has consistently demonstrated its lack of commitment to democracy the time has come for the mobilization of the masses for the liberation of Nigeria. This can only be achieved if Nigerians are involved in the planning and execution of people-oriented policies and programmes. In this regard, the Nigerian Bar Association and similar civil society organizations should renew the campaign for the implementation of the report of the Electoral Reform Committee and the Niger Delta Technical Committee chaired by the Honourable Mohammed Uwais and Ledum Mittee respectively.
Finally, in resolving the current constitutional crisis in favour of popular democracy the attention of Nigerians ought to be drawn to the words of Shakespeare:
which taken at the flood, leads to fortune,
omitted, all the voyage of their life,
is bound in shallow, and in misery,
on such a full sea are we now afloat,
And we must take the current while
it serves or lose our ventures.”