A CRITICAL ANALYSIS OF THE SECTION 144 OF THE 1999 CONSTITUTION MUSA YAR’ADUA AS A CASE STUDY

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ABSTRACT

On the 23rd of November, 2009, President Musa Yar’Adua left Nigeria for treatment abroad in an undisclosed country. For the next 80 days, nobody heard from or saw the federal republic of Nigeria. Even the vice-president, Goodluck Jonathan, could not give any reasonable report of the president’s whereabouts. The activities of the federal executive council became suddenly shrouded and ambiguous. As expected, question about the whereabouts and status of the president began to fly at the national assembly, the judiciary and the federal executive council. The attendant issues that emanated from this situation led to a very tensed period of fierce constitutional arguments by different quarters, especially from legal practitioners, scholars, authors and most especially, the media who put up quite a show fielding all sorts of rumors and speculations. The purpose of this thesis therefore, is to critically appraise the all the constitutional issues that emanated from the Yar’Adua’s saga. In view of this, the office of the president would be critically examined, together with his powers and obligations in relation to section 144 of the Constitution of the Federal Republic of Nigeria, 1999. Also, the obligation of the Federal Executive Council, the National Assembly and the Judiciary would be examined too.

 

CHAPTER 1
GENERAL INTRODUCTION

1.0.0: INTRODUCTION
This thesis is a study of the provisions of section 144 of the constitution of Nigeria,1 especially in relation to the events that occurred during the period of President Yar’Adua’s illness. President Yar’Adua became the president of Nigeria in 2007. Before then, he was governor; he was the governor of Katsina State. He emerged president in the 2007 elections.
While he was governor, he usually took trips outside the country due to his health. After he became president, the trips continued. During the protracted period of illness in 2009, it was revealed that the president had a condition known as pericarditis. This is the inflammation of the pericardium, the membrane, or sac that surrounds the heart.2 Acute pericarditis is usually the result of a viral, fungal,
or bacterial infection, although other diseases, such as chronic kidney failure, also may be the cause.

The president spent over 90 days in a Saudi hospital, battling for his life. Meanwhile, back at home, there was neither a president, nor an acting president, which as in this case, the constitution calls for in the case of the absence of the president. It got to a point that the health of the president became a shrouded issue
and in spite of several outcries and questions thrown at the National Assembly and the Federal Executive Council, it appeared that there was no answer from anyone.
Worst of all, the right people who were in the right position to answer questions pertaining to the  condition of the president’s health started to play the mute servants. This threw the nation into a period of political castigations and accusation. Even the international radar was on Nigeria with calls from notable countries like the United States and Britain calling for a decisive action to be taken by Nigeria in order to salvage the democracy of the nation. It is noteworthy to state here that the phrase ‘permanent incapacity’ is not defined as it is in any dictionary or textbook that this writer came across during this thesis.

However, defined separately, the English Thesaurus4 says that while ‘permanent’ means abiding, constant, enduring, and incapacity means disability, inability, incapability, unfitness. The combination of these words can mean especially in this context, ‘abiding disability, constant inability, enduring unfitness.’ These definitions captures perfectly the condition of the president which was a valid ground for the Federal Executive Council to pass the resolution declaring the president incapable as provided by section 144 of the constitution. The constitution of Nigeria also provides for the eventuality of the absence of the
president for periods such as vacations and other long trips. Section 145 states
thus:

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 discharged by the Vice President as Acting
President.

This provision of the constitution led to a very heated period of constitutional argument which even led to the court, the issue in this argument being whether the president was under any constitutional obligation to transmit any written document to the National Assembly.

In the case of the Nigerian Bar Association v. Attorney-General of the Federation,6 decided in the Federal High court of Lagos, on the 29th of January, 2009, Justice Daniel Abutu, the chief Judge of the High court, held that President Umaru Musa Yar’Adua was not under any obligation to transfer power to his deputy, Goodluck Jonathan, under the provisions of section 145 of the constitution of the Constitution. The NBA had in its suit prayed the court to rule that, in view of the fact that the president omitted or failed to transmit to the president of the senate and the speaker of the house of representatives a written
declaration that he was proceeding on a medical vacation, a declaration that would have enabled the vice-president to assume the effective title of acting president, the vice-president should be sworn in under the jurisprudential ‘doctrine of necessity’

According to Justice Abutu, There is no mandatory requirement in section 145 of the Constitution that the President must transmit a letter to the National Assembly whenever he proceeds on vacation. I am unable to come to the conclusion that the President has a constitutional duty to transmit a letter to the National Assembly before he proceeds on vacation; he has not violated any section of the constitution by not writing such letter as the power write such letter is discriminatory and not mandatory

However, the court also stated in it’s obiter that the vice-president could undertake the duties of the president in the absence of the president, but this was subject to the president following the provisions of section 145 of the constitution. With time, the issue shifted from the failure of the president to transfer power to his vice to the health condition of the president, who had been on admission for about three months at a Saudi Arabian hospital. The Constitution provides in relation to the permanent incapacity of the president8:

144. (1) The President or Vice-President shall cease to hold office, if –

(a) By a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice- President is incapable of discharging the functions of his office; and

(b) The declaration is verified, after such medical examination as May be necessary, by a medical panel
established under subsection (4) of this section in its report to the President of the Senate and the Speaker of the House of Representatives.

It is obvious from this provision that once the president is seriously sick to the extent that he is incapacitated to perform his official duties, he is to be declared so by a resolution passed by the Federal Executive Council. However, instead of following this straight provision in the most honest manner, the FEC passed a resolution declaring the president capable and in sound health. After over three months of the president’s absence, and mounted pressures the National Assembly finally decided to take a kangaroo approach to resolving the issue on ground by passing a hasty resolution that brought in the vice-president in as acting-president. There have been many submissions concerning the constitutionality of the resolution passed by the National Assembly. In the words of Abiola Olawale, a practicing lawyer at Eket, Akwa Ibom State, he says in an article that the National Assembly only succeeded in usurping the powers of the Executive by passing such a resolution, whereby the Constitution clearly provides for instances whereby the vice-president can become the acting president.9
This chapter therefore intends to give the reader a very good view and understanding of the thesis and to provide a good roadmap for the best understanding of the thesis.

1.1.0: BACKGROUND TO THE STUDY
Before November 29, 2009, the section 144 of the Nigerian Constitution had never gotten as much as a peek of the limelight. However, this changed suddenly with the illness of President Yar’Adua which led to a series of events especially his exit to Saudi Arabia to seek medical attention. What was thought to be just another medical trip became a long break for the president. The issue that started the whole furore was the handling over of power to the vicepresident, which the president did not do before his medical condition got critical. Worst of all was the secrecy that shrouded the state of the president’s health. No
one among the president’s caucus could provide any satisfying answer to the question of the president’s state of mind. After waiting endlessly for the return of the president, Nigerians became agitated at the state of the country which was left headless due to the president’s absence.
This led to a series of questioning by Nigerian elites that the president should transmit power to the vice-president to act in his absence as the acting president. This led to a long constitutional debate as to if the president was mandated to hand over to his vice by the constitution in the case of an extended absence among other issues. Furthermore, the issue of the determination of incapability of the president also came to the fore.

1.2.0: OBJECTIVES OF THE STUDY
This study is to critically examine the provisions of the section 144 of the 1999 constitution. In doing, this thesis shall seek to examine the roles of the three arms of the government, i.e., the legislature, the judiciary and the executive, in the effective application of this section in question. We shall also be examining the office of the president of Nigeria in order to properly establish a good knowledge of the thesis, which is to have a critical look at the events of the Yar’Adua’s saga.
More so, the thesis shall also consider the position of the legislature during this period. It is also  interesting to note that the legislature immediately after passing the resolution that brought the vice-president into power as acting president started the amendment of the constitution. This  amendment will also be examined and this writer intends also to submit her recommendations at the end of this thesis as a way of suggesting a way forward.

1.3.0: FOCUS OF THE STUDY
This thesis will focus majorly on the issue of the permanent incapacity of the president and the attendant developments. In doing this, the provisions of the 1999 constitution will be taken into consideration. So also, the consequences of the absence of the president shall also be examined. In summary, the political and legal consequences of the absence of the president are what this thesis will focus on.

1.4.0: SCOPE OF THE STUDY
This study shall be cutting across a range of topics. They include the examination of the office of the president, the implication of the absence of the president from office, an appraisal of the judgment of Justice Abutu on whether the president is mandated to hand over to the vice-president in the case of a prolonged absence and the constitutionality of the resolution passed by the National Assembly, especially in adopting the BBC interview of the sick president as then was, as a written declaration made to the entire nation. More especially the thesis will also consider the role of the federal executive council in determining the wellbeing of the president among other things.

1.5.0: METHODOLOGY
This study shall majorly be constituted of articles culled from newspapers, journals, write-ups, opinions of authors and jurists and internet materials. This is due to the newness of this topic. However, some textbooks from some notable authors will also be considered. More so, the primary sources which are statutory books will as well of paramount use.

1.6.0: LITERATURE REVIEW
Tunji Abayomi in his book, ‘Constitutional powers and Duties of the president’10, stated on the President’s incapability to perform due to health: … in section 144[1], the medical incapacity that discharges a president from the responsibility of his office must be a disability that prevents him from discharging the powers and duties of the office of the president…
Furthermore, Ademola Yakubu also opined in his book ‘Constitutional Law in Nigeria’, that:
It is not in all cases that the president shall be available to perform the functions of his office. He may be absent from the functions of his office or maybe in such a position as to be incapable of performing the functions of his office. Where the situation occurs and the speaker of the House of Representatives accordingly, the functions of his office shall be performed or discharged by the vice-president as acting president It can be postulated from Yakubu point of view that the requirement of the president’s transmission of a written declaration to the National Assembly is only discretionary.
Another issue that gained so much attention during this period was the Rule of Law which coincidentally was President Yar’Adua’s most popular song for his regime. The rule of law is one of the concepts on which constitutional law is premised. In the words of Professor Garner12 the concept of rule of law in its modern dress meets the history of civilization; law is not sufficient in it and must serve some purpose. He says man is social animal and that for the purpose of survival, he had to fashion out certain rules of conduct by which he regulates his day to day activities to prevent a breakdown of law and order.
On this, Oju- Oju Kekemeke Esq. cited in an article13:
The phrase “the rule of law is a legal denotation both of successive outcome of and the sacred goal of man’s unceasing struggle against tyranny, and arbitrary exercise of power. It is an epitome of the English bill of Rights and American Declaration of Independence, the French Declaration of Rights of man and the United Nations Declaration of Human Rights. In other words, the Rule of Law is the… triumph over arbitrary use of power, and an ideal for a just society.
He also postulated that the unnecessary constitutional and political toxic mix of conditions foisted upon Nigeria by, and through the unwillingness of the president to follow the clearly laid out constitutional process was uncalled for. The president was clearly off the track by refusing to follow the rule of law which he so much advocated for all the time by refusing to hand over to the vice president every time he was away from presidential duties. Concerning the resolution the was passed by the National Assembly adopting the BBC interview reported in the national dailies as a written declaration , Norisson Ibinabo Quakers, opined a crucial point.14 He stated that the resolution passed by the National Assembly relying on the doctrine of Necessity is ultra vires the powers of the legislature under the constitution. He stated that the invocation of this doctrine was totally unnecessary in this situation, when the constitution
already had enough provisions to cover such situation.

It is interesting to note that the ground on which the Nigerian parliament passed the resolution was the invocation of the doctrine of necessity. In modern times, the term was first used in a controversial 1954 judgment in which Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad.15 In his judgment, the Chief Justice cited Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’, thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.
The Doctrine of Necessity has since been applied in a number of Commonwealth countries, and in 2010 was invoked to justify extra-legal actions in Nepal. The maxim on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton, and similar justifications for this kind of  extra-legal action have been advanced by more recent legal authorities, including William Blackstone.
In modern times, the term was first used in a controversial 1954 judgment in which Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton’s maxim, ‘that which
is otherwise not lawful is made lawful by necessity’, thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.

1.7.0: DEFINITION OF TERMS
Some terms of great importance to academic study came up for scrutiny in the course of this study. They will be briefly discussed in this chapter in order to illuminate the reader’s mind to the writer’s point.

[A] RULE OF LAW
According to the Black’s law dictionary16, the rule of law is defined as the supremacy of regular as opposed to arbitrary power, [citizens must obey the rule of law]. According to Garner, the whole concept of the rule of law can be summed up in five points:

 That everything must be done according to the rule of law.

 Government should be conducted within a framework of recognised rules and principles which restrict discretionary power
 The rule of law may mean that disputes as to the legality of governmental actions are to be decreed by judges who are wholly independent of the executive
 Law should be even – handed between the government and the citizens such that there would be no unnecessary privileges and exemptions from law
 No one should be punished except for a legally defined crime or offence

[B] THE DOCTRINE OF NECESSITY
The term Doctrine of Necessity is a term used to describe the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional. The doctrine has gotten recent usages in certain commonwealth countries like Nepal where it was used to justify extra-judicial actions and in Nigeria, it was used by the National Assembly to pass certain resolutions during the Yar’Adua’s case.

[C] LEGISLATIVE RESOLUTION
According to Black’s law dictionary, legislative resolution is a main motion that formally expresses the sense, will, or action of a deliberate assembly. A resolution is a highly formal kind of motion, often containing a preamble, and one or more resolving clauses in the form. There are three types of resolutions, namely:
[I] Concurrent resolution passed by one house and agreed to by the other.
[ii] Joint resolution, which is a legislative resolution passed by both houses
[iii] Simple resolution which is a resolution passed by one house only

[D] DISCRETION
The word as used in constitutional law goes hand in hand with the doctrine of Rule of law. Some scholars and judges have given their definitions to the use of this word.

Lord Hals bury L.C. put it in the case of Sharp v. Wakefield17, Discretion means… that something is to be done according to the rules of reason and justice, not according to private opinion…it is… not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit to which an honest man competent to discharge of his office ought to confine himself.
The Nigerian Supreme Court per Onu JSC, in Arta industries v. NBCI18, defines discretion as; Equitable decision of what is just and proper under the circumstances or a liberty or privilege to decide and act in
accordance with what is fair and equitable…

1.8.0 CONCLUSION
This study as earlier stated is premised on the events that occurred during period of President  Yar’Adua’s illness. This introductory chapter seeks to help the reader understand the background of the thesis, which is the interpretation of the section 144 of the 1999 constitution which was the major focus during the period of President Yar’Adua’s illness and absence from office.
More so, aims and objectives of the study were analysed. The focus of this study was also discussed for a better understanding of what this researcher wants to achieve. Finally, the works of other scholars were also examined in the literature review in order to see where the lacuna lies.

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