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.[3] 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 Thesaurus[4] 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.[5]

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[7]

However, the court also stated in it’sobiter 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 president[8]:

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 VicePresident 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 AbiolaOlawale, a practicing lawyer at Eket, AkwaIbom 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

TunjiAbayomi in his book, ‘Constitutional powers and Duties of the president’[10][11], 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, AdemolaYakubu 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 actingpresident[12]

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

Garner[13] 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

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