February 17, 2010
When on 9 February 2010, precisely seventy-eight days after President Umaru Yar’Adua effectively abdicated his office, the Senate of the National Assembly passed a resolution mandating Vice President Goodluck Jonathan to act as president pending the return of his principal, it pleaded necessity as justification for the action. The plea seemed so unimpeachable that the House of Representatives immediately reversed its earlier rejection of a similar motion to align itself with the upper chamber. Even the Federal Executive Council directly charged with the task of salvaging the situation under Section 144 of the constitution but which, to its eternal shame, chose at every turn to pronounce the president fit for office also did the somersault. But while the National Assembly has contrived a temporary and unsavoury reprieve from our determined march towards anarchy, its action remains questionable even by those who called loudly for that very outcome. Their position is best represented by the Action Congress party and ex-Representative Farouk Aliyu Adamu who has filed a suit. Speaking through its publicity secretary, AC declared the resolution “illegal,” being outside the ambit of Section 145 of the Constitution which spells out the mode and manner the vice president can become the Acting President. According to AC, far from rescuing the nation from the brink of disaster, the National Assembly had instead brought us “closer to the abyss.” The party urged Jonathan to see his elevation as “nothing but a Greek Gift designed to do him in.” For his part, Adamu, former minority leader in the House of Representatives, took it up a notch by seeking judicial compulsion for Jonathan to be named acting president only through Section 144. Yes, the same FEC that flatly refused to heed an earlier court order in another Adamu suit. Yet until the FEC does the right and proper thing, Adamu wants Jonathan to “stop parading himself” as the Acting President and Commander-in-Chief. Curiously, however, Adamu not only desires that the court have regard to Section 145 but also “the circumstances” of his suit. For the record, Section 4 of the same constitution empowers the national assembly to make laws for “the peace, order and good government” of the country and invests the legislature with considerable amplitude when invoking its inherent powers.
These two contentions, taken together, seem defined by a literalist approach to constitutional interpretation. Still, they ask rather forcefully what the doctrine of necessity means and whether it can ever justify a departure from the constitution. Additionally, they invite a reconsideration of that fraught question of the ultimate source of law, especially the constitution – the grundnorm or basic code through which all other laws derive their legitimacy. Simply stated, the doctrine of necessity enables the temporary suspension of adherence to the constitution or rule of law in deference to a supervening event that radically alters the existing legal order, in particular the relation of the law to the state and society. Consequently, the legitimacy of an act taken in that exigent circumstance appeals to an external standard for its validity. As the Fijian coup of 2006 more recently demonstrates, the appeal is usually to an even higher national goal, such as the desire to preserve political stability. As a doctrine, however, necessity is neutral and may be summoned to any cause, progressive or reactionary. Thus, from the Haitian and American revolutions and all rebellions against oppressive juridical systems to the phenomenon of coups and countercoups by the military wing of the Nigerian ruling class, the doctrine of necessity has always been the implicit or explicit justification. It goes without saying then that the rule of law is not a categorical imperative but must always be scrutinised to unveil the class interests it protects. And it is only when the rule of law is seen to advance the interests of the masses either wholly or to a strategic degree that a progressive should swear by it.
Necessity being always a last resort when objective conditions defy the conflict resolution mechanisms of the existing legal framework, Adamu’s invitation to the court to consider the circumstances of his suit points to the complexity of the problem he wishes to solve by legal fiat. He betrays a grudging admission of the very step he seeks to nullify and perhaps the futility of his prayer that the national assembly and the entire populace wait for a written declaration from a patently incapacitated president before the nation can take a step out of the current political quagmire. Adamu is well aware of the volatility and urgency of the situation, so in order to avoid “constitutional and economic crisis” he asks that his suit be heard immediately. We must assume that he is also aware the court, as a rule, will not act in vain by making an order that cannot be implemented. But was the Senate right to plead necessity? In my opinion, yes. It should be said, nevertheless, that the evidence it cited, to wit Yar’Adua’s contentious interview with the BBC on the fiftieth day of his abdication, makes at best only half the case. The president claimed to be recovering and hoped to make “tremendous progress” and be able to come home soon. What can it mean if a month after he had neither returned nor been able to perform the mere duty of writing a letter to the National Assembly? That given one more day or week or month or year, he would?
Which leads to the question of the exact extent of the president’s incapacitation. Given that Yar’Adua had previously made several trips abroad for treatment, there are only two conclusions to draw from the dilemma attending the current one. That setting out with his mind and body still functioning he had deemed it unnecessary to notify the National Assembly of his absence because he expected a quick trip. Unfortunately, his condition turned for the absolute worst upon arrival. Alternatively, that he was already severely incapacitated, possibly unconscious, at the time of his departure such that he lacked the capacity to function meaningfully, or at all. In either case, those who argue that the best way forward was to impeach the president before any subsequent step could be validly taken would be confronted with the difficult task of proving his wilful violation of the constitution. Else they appear callous, eager to humiliate a man who had no intention of breaking the law, his only crime being that he was unlucky enough to fall grievously ill. On the other hand, proceeding through Section 144 means that Jonathan must give up executive powers forthwith and reinstate the “old” FEC for the sole purpose of declaring Yar’Adua incapacitated. In which case Yar’Adua’s abdication will have led to Jonathan’s illegal usurpation of power with all the consequences for all of his ensuing actions! It seems to me all three solutions are equally unsatisfactory but that neither of the other two offers necessity’s sop of a speedier resolution of the political logjam.
In the final analysis, this whole mess reveals once again an even more extreme necessity: that of our crying need for a sovereign national conference. No patchwork solution will suffice any longer. If the literalists want us to believe that what they advocate is respect for the sovereign will of the people, then their starting point must be a document genuinely made and enacted by the people for themselves. This is the only way to clear the Aegean stables and begin on a clean constitutional slate. For in the end, Adamu’s path to the court is paved by Buhari’s necessity-coup of 31 December 1983, successively renewed and aggravated by Babangida in 1985 and Abacha in 1993, subsequently encoded in his dictated1999 constitution. It is time to break the infernal cycle that makes advocacy for an anti-people document seem like a good thing. Until “We the people” are truly able to agree on the terms of the union and the peaceful means for converting the mere geographical expression called Nigeria into a self-determining nation, every effort we make to avert the drop into the abyss of disintegration will be mocked by illegitimate or necessity constitutions and the legal contrivances that issue from them. One necessity deserves another, a far better one.
Ifowodo may be reached at [email protected]
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