February 8, 2010
Today’s reported resolution by the Senate and House of representatives is unconstitutional. It is unconstitutional because the 1999 Constitution of the Federal Republic of Nigeria does not provide for it. I would like to know the provision of the 1999 Constitution the National Assembly relied upon to pass this resolution. It is often said that bad facts bring forth bad laws. This resolution is bad law. Allowing the National Assembly to get away with it will result in the body exercising powers not granted to it under the 1999 constitution and create further distortions and dislocations to the structure of a document that was poorly drafted to start with and has been subjected to unprecedented judicial violence in the ten years of its existence. .
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The National Assembly’s purported reliance on the January 12, 2010 British Broadcasting Corporation’s interview with President Yar Adua is unprecedented. Assume for one moment that there are no doubts about who spoke to the BBC, section 145 of the 1999 Constitution specifically refers to the receipt of “a written declaration” by the Senate President and Speaker of the House of Representatives. The BBC broadcast in question was not a “written declaration” transmitted by the President Yar Adua to the President of the Senate and Speaker of the House and these so called lawmakers should know better. What the BBC aired was an alleged interview with Yar Adua. At no time during the interview did the president express his intention to see Goodluck Jonathan take over from him as acting president. In fact, the question was never put to him. How can the National Assembly now say that interview constitutes a written declaration? This is a booby-trap and when it suits the purpose of those behind it, they will get the courts to call it what it is: an illegal transfer of power.
When it comes to removing the president from office, there are only two constitutional options. The first is a straight impeachment by the National Assembly under section 143 of the 1999 Constitution. The other is section 144 that deals with incapacity of the president. Section 143 is open to the National Assembly while section 144 is open to the Federal Executive Council. There is very little chance of the president being removed from office under section 144 by the Federal Executive Council because we all now know the aberration of requiring “employees” of the president to make themselves unemployed by voting the president out of office under section 144. I say this notwithstanding the implications of the one “man” riot squad called Dora Akunyili.
Sections 143 and 144 of the constitution are applicable in today’s Nigeria but the National Assembly can only rely on section 143 for reasons stated above. Section 143 is applicable because President Yar Adua’s failure to transmit a letter to the Senate and House leaders notifying them of his departure to Saudi Arabia on a prolonged medical trip is, in my opinion, an impeachable offense at this point in time. Even after giving the president the benefit of doubt by discounting for the possibility that he did not know that he would be gone for an extended period, his continuing failure to avail himself of the benefits of section 145 by using the transmission of the letter to the leaders of the National Assembly to make provision for the discharge of the functions of the office of the presidency makes his conduct an impeachable offence under section 143. It is all the more impeachable given the report that he was “well enough” to sign the Appropriations Bill. The desperados around him cannot tell the National Assembly that a man well enough to sign a voluminous Appropriations Bill cannot sign a letter.
Obeying section 143 of the constitution maybe discretionary but discharging the functions of the office of the presidency is not. Having failed to make adequate provision for the discharge of the office of the functions of the office presidency and the general administration of the country in his absence, I submit that President Yar Adua is guilty of an impeachable offense under section 143 of the Constitution. It is an impeachable offense not because of his failure or refusal to transmit a discretionary letter under section 143 but because such failure has created a situation where there is no one to discharge the functions of the office of the presidency. Failure to discharge the functions of the office of the presidency is an impeachable offense. At the risk of verbosity, I am being deliberately repetitive about this point because of its causative link to section 143 of the 1999 constitution.
Since impeachment of the president under section 143 of the constitution is the only constitutionally valid option available to the National Assembly, both houses should proceed to impeach the president. The president can and should be removed from office for gross misconduct in the performance of the functions of his office if he fails, forthwith, to make provision for the discharge of the functions of the presidency by transferring power to his deputy, Goodluck Jonathan. Although the president can save himself from impeachment by taking advantage of section 145, his impeachment will in this case be for failure to discharge the functions of the office of the presidency, not for failure to transmit the so called Letter.
Another reason why impeachment maybe a better option for removing Yar Adua from the presidency is that it is a legally less odious option. In the absence of a mechanism for ascertaining the authenticity of any letter the president may purportedly send and given the prevailing general belief that the president is incapacitated to the point of not knowing the happenings around him, how can anyone tell if the President signed the letter? The “desperados” led by Michael Aondoakaa may submit a forged letter to the National Assembly to effect the transfer of power to Goodluck Jonathan in order to cool the polity, only for the transfer to be challenged at a letter date for forgery.
The National Assembly cannot transfer power from the President to the Vice-President by way of a resolution. To allow such a resolution to have any legal effect would be tantamount to allowing members of the National Assembly to unilaterally amend sections 143-145 of the 1999 Constitution of Nigeria without the required consent of the state assemblies.
As over-flogged as section 145 of the Constitution has become in the present atmosphere, I regrettably agree with the most annoying personality in this administration, Michael Aondoakaa, that the president is not obligated to notify the leaders of the National Assembly of his travels or indisposition under section 145 of the Constitution. Consequently, the president cannot be impeached for failure to obey section 145 of the constitution. The operative word in that provision is the very first word: WHENEVER. Without insulting the integrity of my readers, the use of the words WHENEVER or MAY in legal drafting is the opposite of the word SHALL. Shall is an imperative while whenever or may is discretionary. I have reproduced that section for the benefit of those who do not have a copy of the constitution handy:
s. 145. WHENEVER (emphasis mine) 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.
The National Assembly have enough legal resources to know that the only option available to both houses is to impeach the president, although a verifiable letter would be more politically expedient because it will allow the president to return to office if and when he does recover from his illness. However, should both houses decide to do something about this impasse, it should be done constitutionally to avoid creating further complications in an already unduly complicated environment. The members of the Senate and House of Representatives should stop running around like headless chickens. They know what their options are and should exercise those options with the primary consideration being the good of Nigeria and the people. I am sure that it is not too much to ask for by requesting that should not allow themselves to be held hostage and prevented from doing the right thing by the cowards and Oliver Twists in their ranks. These lawmakers who are better described as lawbreakers have done a lot of damage to Nigeria and the people and this maybe their golden opportunity to atone for their sins.
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The National Assembly’s purported reliance on the January 12, 2010 British Broadcasting Corporation’s interview with President Yar Adua is unprecedented. Assume for one moment that there are no doubts about who spoke to the BBC, section 145 of the 1999 Constitution specifically refers to the receipt of “a written declaration” by the Senate President and Speaker of the House of Representatives. The BBC broadcast in question was not a “written declaration” transmitted by the President Yar Adua to the President of the Senate and Speaker of the House and these so called lawmakers should know better. What the BBC aired was an alleged interview with Yar Adua. At no time during the interview did the president express his intention to see Goodluck Jonathan take over from him as acting president. In fact, the question was never put to him. How can the National Assembly now say that interview constitutes a written declaration? This is a booby-trap and when it suits the purpose of those behind it, they will get the courts to call it what it is: an illegal transfer of power.
When it comes to removing the president from office, there are only two constitutional options. The first is a straight impeachment by the National Assembly under section 143 of the 1999 Constitution. The other is section 144 that deals with incapacity of the president. Section 143 is open to the National Assembly while section 144 is open to the Federal Executive Council. There is very little chance of the president being removed from office under section 144 by the Federal Executive Council because we all now know the aberration of requiring “employees” of the president to make themselves unemployed by voting the president out of office under section 144. I say this notwithstanding the implications of the one “man” riot squad called Dora Akunyili.
Sections 143 and 144 of the constitution are applicable in today’s Nigeria but the National Assembly can only rely on section 143 for reasons stated above. Section 143 is applicable because President Yar Adua’s failure to transmit a letter to the Senate and House leaders notifying them of his departure to Saudi Arabia on a prolonged medical trip is, in my opinion, an impeachable offense at this point in time. Even after giving the president the benefit of doubt by discounting for the possibility that he did not know that he would be gone for an extended period, his continuing failure to avail himself of the benefits of section 145 by using the transmission of the letter to the leaders of the National Assembly to make provision for the discharge of the functions of the office of the presidency makes his conduct an impeachable offence under section 143. It is all the more impeachable given the report that he was “well enough” to sign the Appropriations Bill. The desperados around him cannot tell the National Assembly that a man well enough to sign a voluminous Appropriations Bill cannot sign a letter.
Obeying section 143 of the constitution maybe discretionary but discharging the functions of the office of the presidency is not. Having failed to make adequate provision for the discharge of the office of the functions of the office presidency and the general administration of the country in his absence, I submit that President Yar Adua is guilty of an impeachable offense under section 143 of the Constitution. It is an impeachable offense not because of his failure or refusal to transmit a discretionary letter under section 143 but because such failure has created a situation where there is no one to discharge the functions of the office of the presidency. Failure to discharge the functions of the office of the presidency is an impeachable offense. At the risk of verbosity, I am being deliberately repetitive about this point because of its causative link to section 143 of the 1999 constitution.
Since impeachment of the president under section 143 of the constitution is the only constitutionally valid option available to the National Assembly, both houses should proceed to impeach the president. The president can and should be removed from office for gross misconduct in the performance of the functions of his office if he fails, forthwith, to make provision for the discharge of the functions of the presidency by transferring power to his deputy, Goodluck Jonathan. Although the president can save himself from impeachment by taking advantage of section 145, his impeachment will in this case be for failure to discharge the functions of the office of the presidency, not for failure to transmit the so called Letter.
Another reason why impeachment maybe a better option for removing Yar Adua from the presidency is that it is a legally less odious option. In the absence of a mechanism for ascertaining the authenticity of any letter the president may purportedly send and given the prevailing general belief that the president is incapacitated to the point of not knowing the happenings around him, how can anyone tell if the President signed the letter? The “desperados” led by Michael Aondoakaa may submit a forged letter to the National Assembly to effect the transfer of power to Goodluck Jonathan in order to cool the polity, only for the transfer to be challenged at a letter date for forgery.
The National Assembly cannot transfer power from the President to the Vice-President by way of a resolution. To allow such a resolution to have any legal effect would be tantamount to allowing members of the National Assembly to unilaterally amend sections 143-145 of the 1999 Constitution of Nigeria without the required consent of the state assemblies.
As over-flogged as section 145 of the Constitution has become in the present atmosphere, I regrettably agree with the most annoying personality in this administration, Michael Aondoakaa, that the president is not obligated to notify the leaders of the National Assembly of his travels or indisposition under section 145 of the Constitution. Consequently, the president cannot be impeached for failure to obey section 145 of the constitution. The operative word in that provision is the very first word: WHENEVER. Without insulting the integrity of my readers, the use of the words WHENEVER or MAY in legal drafting is the opposite of the word SHALL. Shall is an imperative while whenever or may is discretionary. I have reproduced that section for the benefit of those who do not have a copy of the constitution handy:
s. 145. WHENEVER (emphasis mine) 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.
The National Assembly have enough legal resources to know that the only option available to both houses is to impeach the president, although a verifiable letter would be more politically expedient because it will allow the president to return to office if and when he does recover from his illness. However, should both houses decide to do something about this impasse, it should be done constitutionally to avoid creating further complications in an already unduly complicated environment. The members of the Senate and House of Representatives should stop running around like headless chickens. They know what their options are and should exercise those options with the primary consideration being the good of Nigeria and the people. I am sure that it is not too much to ask for by requesting that should not allow themselves to be held hostage and prevented from doing the right thing by the cowards and Oliver Twists in their ranks. These lawmakers who are better described as lawbreakers have done a lot of damage to Nigeria and the people and this maybe their golden opportunity to atone for their sins.
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