In a petite stroll back to the track of history in the struggle to do justice to the prolonged absence of the President and the firm position of our constitution on same, its pertinent to make a basic recourse to the 'sui generis' Originating Summons filed by an Abuja based prodigious lawyer and human right activist, Kayode Ajulo shortly after the popular BBC interview granted by the president on the 12th day of January, 2010 and the argument of the learned attorney.
The suit was filed on the 18th January 2010 at the Federal High Court in Suit No: FHC/ABJ/CS/28/10 by Kayode Ajulo against the President of the Senate, Speaker of the House of Representative and the Attorney General of the Federation, the processes sought for inter alia the Court's declaration that by the combined effect of the authorized and un-contradicted public declaration made by President Umaru Musa Yar'Adua, on January 12, 2009, voiced thus;
"At the moment, I am undergoing treatment, and I'm getting better from the treatment. I hope that very soon there will be tremendous progress, which will allow me to get back home...As soon as my doctors discharge me, I will return to Nigeria to resume my duties...I wish, at this stage, to thank all Nigerians for their prayers for my good health, and for their prayers for the nation,"
It is the contention of the Plaintiff who is not only a well known cerebral lawyer and social commentator but the founder and financier of Egalitarian Mission, Africa, that the declaration was transmitted by a credible medium and subsequently transcribed and published by virtual all Nigeria prints media such as the Thisday Newspaper, Punch Newspaper, Guardian Newspaper, The Nation Newspaper, Sun Newspaper, Vanguard Newspapers, 234 Next and other newspapers that circulate nationally and internationally, the transcript of which the authorized public declaration was received and read by all including the President of the Senate, Speaker of the House of Representative at both chambers of the National Assembly, President Yar'Adua has duly informed the President of the Senate, Speaker of the House of Representative of his inability to perform the functions of his office and his consequential proceed on vacation owing to his ill-health and had therefore complied with the provision of Section 145 of the 1999 constitution.
The Plaintiff who is also one of the alter egos of Save Nigeria Group therefore prays for consequential Orders of the court directing the National Assembly to recognize and allow the Vice-President to begin, without any further delay, the performance of the duties of the President of the Federal Republic of Nigeria in his own right as Acting President.
It is just apt to be informed that the hearing of this suit has been adjourned to the 22nd of February, 2010 before Hon. Justice Kolawole (who has summoned the President of the Senate, Speaker of the House of Representative and the Attorney General of Federation) to appear before him at Federal High Court, Abuja.
No sooner had the leaders of the National Assembly been served with the processes in the suit than they, in their sittings on the February 9, 2010 unanimously passed separate resolutions to yield in tadem to the immutable reliefs sought in the matter and declared the Vice President as the Acting President.
It is interesting to observe the resolution of the Senate thus; "viewed from an ordinary reading of Section 145, we came to the conclusion that the President, through his declaration transmitted worldwide on the British Broadcasting Corporation, as furnished this parliament with irrefutable proof that he is on medical vacation in the Kingdom of Saudi Arabia, and has therefore complied with the provisions of Section 145 of the 1999 Constitution.".
However, this constitutional and practical step taken by the National Assembly has been criticized by some politicians, lawyers, economists and even members of the National Assembly. Senator Garba Lado (PDP Kastina South) while opposing the motion to transmit power to Vice-President as Acting President reasoning thus; "…I do not understand the kind of teacher that will interpret a written declaration as what somebody speaks through the interview with BBC, to say that will serve as written document…"
The distinguished Senator is not the only person who had misunderstood the purport of Section 145 of the 1999 Constitution and the time-long-settled legal, liberal and practical approaches to the convenient interpretation of the provisions of our grundnorm in the jurisprudence of constitutiona as the former Presidential candidate, Chief Olu Falae and Action Congress has also faulted the National Assembly's interpretation of Section 145 of the Constitution.
It is therefore necessary to make elaborate expositions of the legal spirit and purport of the constitutional provisions in question as canvassed by Kayode Ajulo in his suit against the President of the Senate, Speaker of the House of Representative and the Attorney General of Federation. The provision of Section 145 of the 1999 Constitution states thus; "Whenever the President transmits to 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 an incredibly ordinary situation, the literal interpretation of this provision of the constitution would mean that, when the President had realized the fact that he has to vacate his office for any reason and reasoned that his vacation may cause a vacuum in his office and/or the President holds a conviction of his inability to discharge the functions of his office, one of the options therefore available for the President is what Section 145 has revealed. This is what the President has done by his authorized declaration via BBC thus:
"At the moment I am undergoing treatment, and I'm getting better from the treatment. I hope that very soon there will be tremendous progress, which will allow me to get back home...As soon as my doctors discharge me, I will return to Nigeria to resume my duties...I wish, at this stage, to thank all Nigerians for their prayers for my good health, and for their prayers for the nation."
It is the Plaintiff unequivocally submission that the President's declaration as published is not only read but has been presented and debated by the distinguished and Honourable members of both Chambers of the National Assembly on the 13th and 14th of January 2010 in which the President of the Senate and the Speaker of the House of the Representatives are in attendant and presided both Chambers respectively.
In the contention of Kayode Ajulo that the clear interpretation of "whenever" in Section 145 is once it is made known by the President of his vacation or inability to discharge for whatever reasons, the duties, functions and responsibilities of his office the PRESIDENTIAL POWERS AND DUTIES legally devolved on his Vice as Acting-President.
He also contends that it is envisaged and provided for by the Constitution that the President, upon being subsequently fit, can make a "declaration to the contrary" i.e., he can cause another contrary declaration to resume the functions of his office.
He also reasoned that the constitution never provided for a special mode/format by which the President should covey/transmit the written declaration about his incapacity and the resultant vacation to the President of the Senate, Speaker of the House of Representatives.
He also distinguished this from the procedure for proclamation of state of emergency and Resignations as provided in Section 305 and 306 of the Constitution respectively, where the procedures, manners and formats in which the President should make a proclamation of state of emergency and office holders under the constitution should declare their resignation respectively were specifically provided.
As further maintain that if the drafter of our constitution intended to provide a special mode for the transmission of this requisite written declaration for the president, they would have provided for it as done in Section 305 and 306 of the Constitution.
In effect he urges that to interpret Section 145, our Court should use a liberal approach when interpreting the provisions of our constitution, particularly when the same constitution did not provides which format or the form the written declaration should be as well as the mode of the transmission of the written declaration of the President.
As this is the reasoning of the Supreme Court of Nigeria per Uwais (CJN as then was) in the case of A.G. LAGOS v A.G. FEDERATION (2004) 18 N.W.L.R. (Pt 904) 1 at 75-76, paras, F-C thus;
"Be that as it may, it should be borne in mind that we are in this case concerned with the interpretation of the Constitution. The inconsistency and confusion notwithstanding, this Court has since laid down that in interpreting the Constitution we should avoid technicalities"
(SEE ALSO: NAFIU RABIU v KANO STATE (1980) 8-11 SC 130.)
He contends that it is the law that the publication containing the public declaration of the President has become a public document in the custody of the National Library. (SECTIONS 96 AND 97 OF THE EVIDENCE ACT & NATIONAL LIBRARY ACT)
He also submitted that the function of the constitution is to establish a framework and principle of government, broad and general in terms, is to be to applied to the varying conditions of the provisions of the Constitution.
He ended this argument with an observation of the Supreme Court in RT HON. MICHEAL BALONWU VS. GOVERNOR OF ANAMBRA (unreported) Suit No: SC/233/2008 delivered on 4th December, 2009 Per Onnoghen JSC: "It is therefore proper to hold that the intention of the legislature is to ensure continuity of government action in order to avoid a vacuum"
The National Assembly in total agreement with Kayode Ajulo's submission on Tuesday 9th of February 2010 passed a resolution to the effect that the Vice-President act as President and Commander-in-Chief of armed Forces of Federal Republic of Nigeria, this resolution was immediately accepted by the Federal Executive Council.
However, the erudite lawyer despite the fact that his legal and ingenuous reasoning has save the country from constitutional crisis, has vowed that irrespective of the adoption of his arguments and prayer that ensure that the Vice-President becomes the Acting President, he will still go on with his case as he wants for posterity sake, the judicial interpretation of the provision of the Constitution.
By: Austyn Ogannah
