Date Published: 02/15/10

ACTING PRESIDENT: WHEN REPS TOOK THE SIDE OF CONSTITUTION AND COURT By Casmir Boluwatife

On February 9, 2010, the two chambers of the National Assembly (NASS) passed a much expected resolution to empower Vice President Goodluck Jonathan to become the Acting President of Nigeria following the absence from the country of President Umaru Yar’Adua for over 70days and a looming constitutional and political crisis.

The looming danger to the ship of the state was effectively averted by the two chambers of NASS following the inactivation of section 145 of the 1999 constitution by the president before he travelled out to Saudi Arabia on medical ground. But in arriving at their resolutions, the two chambers took different route while agreeing that the destination is in the national interest, peace, stability and good governance of Nigeria.

It will be recalled that earlier the senate had passed a resolution requiring the president to transmit a letter notifying the NASS of his illness based on section 145 of the constitution. The House of Representatives rejected a similar motion on the ground that the Vice President can act as the President based on the constitution and court judgments and he has so been acting. It however passed another resolution to send a delegation to visit President Yar’Adua in Saudi Arabia as a goodwill gesture as well as “discuss issues of national importance”.

Now that the two chambers have arrived at the same destination, obviously a lot of matters may arise on the different routes used. While the Senate took an adapted mode of transmission in the President’s BBC interview to mean compliance with section 145, the House of Representatives took the position of judicial interpretation of section 5(1) and section 148(1) to arrive at the same conclusion.

As it is, a raging debate that is on whether the position of the Senate is appropriate under the circumstance. Given that the issue is political to save the country from a possible truncation of its democracy, a lot could be overlook in terms of constitution and legalities. But that is why one is in support of the route taken by the House of Representatives which hinged its own resolution on sections of the constitution and its judicial interpretation. As it is, there are already indications that the reliance on BBC report  as meaning transmission according to section 145  is questionable and debatable with some people already indicating interest in challenging the resolution for its legalities or otherwise.

Such could have been avoided if the Senate had relied on judicial interpretation like the House of Representatives. The House, whose resolution to confer power on the Vice President to become Acting President was hotly debated in two executive  (close) sessions within a sitting lasting three hours, has hinged its resolution  on section 5 (1) and 148(1) of the 199 constitution which Justice Daniel Abutu of the Federal High Court interpreted as follows “ It is hereby declared that by the provisions of section 5(1) and 148(1) of the 1999 constitution, the Vice President can , on the basis of assignment or delegation by the President to him of executive powers of the President under the constitution, exercise the executive powers vested in the President under the constitution in the absence of the President” adding that “It is further declared that the Vice President can on the basis of the delegation or assignment to him by the President of the President executive powers under the constitution , lawfully discharge any or all of the functions of the President in the interest of peace, order, and good governance, pending when the President returns to assume duty”

It is noteworthy that the House of Representatives in its resolution actually included the issue of “peace, order and good governance” as rationale,  in addition to the constitution and judicial interpretation as stated above as informing and guiding its stand. And Rt. Hon. Dimeji Bankole the leader at the  Green Chamber has always harp on the need to follow the rule of law, constitution and judicial pronouncement in navigating the political minefield that the nation found itself when he received various delegations of eminent former leaders and Nigerians making different cases for a solution to the issue.

So while the two chambers of the National Assembly did the right thing to resolve the political logjam, the stand of  the House is more enduring and it is not only based on the constitution , but on judicial interpretation of the constitution. And the resolution was arrived at democratically as Bankole put it to a vote even after agreement has been reached by the whole House during two executive sessions to deliberate on the matter. As it is all are agreed that the nation must move forward in the absence of the president who everyone is wishing quick recovery from his illness, while effort should be made to amend the constitution. The House of Representatives has already commenced this process with a bill for an amendment of Section 145 by Hon Ismaila Kawu ( ANPP, Kano) and 33 others. The bill which was given accelerated hearing has passed second reading and was committed for committee, will ensure that the Vice president or deputy governors of states will automatically assume office as acting president or acting governor after 21 days of absence of the substantive officeholders. Bankole gave the House committee handling the bill three weeks to submit its report for plenary to pass the bill which is intended to form part of the constitutional review this year. This is commendable as a way of curing a constitutional malaise once and for all time instead of resorting to self help or unconstitutional measures.

Casmir Boluwatife

32 Iwo Road, Ibadan