Finally, Nigerian National Assembly Acts, But Is This Constitutional?

Finally Nigerian National Assembly Acts But Is This Constitutional?
Written by Paul I. Adujie
Lawcareer@gmail.com
New York, United States





FINALLY!

That was the word I yelled out, upon learning that the National Assembly of Nigeria had voted to authorize our vice president to assume presidential duties, in an acting capacity, until further notice and until the true condition and fate of our substantive president, President Umaru Musa YarAdua is determined.


BUT, this is not what the constitution provides! This is certainly meets the demands of expediency and our national exigent circumstances, it might serve as sedge way out of this prolong political and constitutional crises

However, it must, for the avoidance of doubt and for the record, it must be stated and restated that the Constitution of Nigeria does provide for, and in particular, section 145 does require a sitting president to transmit a letter to the president of the senate, which is in turn considered by the National Assembly of Nigeria, the Senate and the House of Representatives, the upper and lower chambers of our national legislature that is.

The current action of the National Assembly is obviously, and understandably so, an attempt to douse the tensions which have be brought upon and wrought upon Nigeria, by the neglect and refusal by President Umaru Musa YarAdua to simply comply with the constitution of Nigeria. President YarAdua’s departure from presidential duties, in violation of provisions of the constitution of Nigeria, created a power void and power vacuum. President YarAdua prevented a constitutionally stipulated power devolution, which should have been uneventful and seamlessly carried out.

The Senate President, Senator David Mark, in announcing the action of the National Assembly, predicated the vote to install Vice President Goodluck Jonathan as an acting president, on a BBC Radio Broadcast by President YarAdua, a broadcast which was made by President YarAdua in response to clamor by Nigerians for him to transmit the constitutionally mandated letter in compliance with section 145 of the constitution of Nigeria. Our constitution is quite unambiguous on the issues at stake.

Senator David Mark was quoted as saying that, "The BBC interview granted by the president is as good as the letter envisaged in the constitution because if you go onto the Internet, you will see a copy of what he said," It take the view that a radio broadcast is not similar or identical to a letter as specifically and clearly directed by section 145 of the constitution of Nigeria. I take a very dim view that this BBC Radio broadcast which was referred and alluded to by Senator David Mark, is not sufficient and therefore, it is no substitute to the specific exactitude spelled out in definite language in our constitution. Besides, the National Assembly may be setting an unprecedented precedent for our nation.

Deeming the BBC Radio broadcast as a substitute or amalgam of message and news, and therefore construed as if, the president actually sent a “message” had complied with the constitution, is really a stretch, as it amounts to an extraordinary interpretation of section 145 of the constitution of Nigeria, without an amendment to the current provision of 145.

The constitution of Nigeria, mandates, stipulates, provides and contemplates that the president will cease from presidential duties, only under these numbered circumstances which follows:

1. A letter which shall, be properly transmitted from the president regarding his or her absence from presidential duties, upon which the National Assembly shall trigger the assumption of office by the vice president as the acting president, until the substantive president returns to president duties and or, other determinations are made in connection with the continuing capacity and fitness of the substantive president.

2. The constitution also provides that a Nigerian president might cease to be president through his or her voluntary resignation and departure from presidential duties and presidency.

3. The president of Nigeria, may also be removed from presidential duties and from office or the presidency through impeachment on grounds of gross misconduct. And I have recently argued publicly that President YarAdua’s neglect and refusal to transmit the letter as required by section 145 of the constitution of Nigeria, amounted to an egregious violations of the constitution and therefore, the National Assembly, can and should consider such egregious violations as amounting to Gross Misconduct, and therefore an Impeachable Offense.


In the absence of such of proper and effective compliance with section 145 of the constitution of Nigeria, which requires a president to transmit a letter, as opposed to a BBC broadcast or some other substitute “suitable or unsuitable” substitutes, it is doubtful, whether it is constitutional for the National Assembly to act on it own, to interpret section 145 as contemplating an indeterminate voice on a radio broadcast, BBC or not, as the voice of President YarAdua. First, this is not what is mandated by our constitution, and secondly, the BBC broadcast in question was never authenticated. Whose voice was on BBC? Who determined that voice to be the true, accurate and exact voice of Mr. YarAdua? It must be recalled that this BBC Interview was widely reported worldwide as :

A Man Claiming To Be President YarAdua Speaks On BBC


The constitution of Nigeria also provides and contemplates, a departure from the presidency by the occupant of that high office, through voluntary resignation by the substantive president of Nigeria. And here again, the current situation or circumstances are not identical or similar to the specificity of the constitution of Nigeria, regarding voluntary departure and vacation from the presidency, by the occupant of that high office. President Umaru Musa YarAdua, has for 78 days, neglected, refused to transmit a letter stating or declaring his absence from presidential duties. President YarAdua has therefore demonstrated an unwillingness to voluntarily relinquish, even temporarily, the presidency to the vice president as an acting president. President YarAdua has demonstrated intransigence and recalcitrance and impervious to public demands that he temporarily cede power to the vice president, it is therefore, quite clear or at minimum, doubtful, that he would have resigned, and he has not! This means then, that the resignation contemplated in the constitution of Nigeria, has not taken place.

Thirdly, there is the matter of impeachment. The National Assembly has not empanelled a committee to consider a set of gross misconducts and determine such misconduct as impeachable offenses and therefore proceed to impeach President YarAdua and properly remove his from office upon which he will cease to be the current President of Nigeria, and again, what has transpired in Nigeria as announced by the National Assembly, has not complied with section 143 of the constitution of Nigeria which stipulates clearly, the plethora of grounds, procedures and methods for a thorough and proper impeachment of a sitting president of Nigeria.

What the National Assembly has done takes care of the exigent circumstances... but, it is not provided for by our constitution! The action by the National Assembly is could have come much earlier, but, it is good that it finally did come. It may be a sedge way, to forestall and to act as a stop-gap measure, perhaps an ad hoc measure, until a constitutional action is undertaken, either by the president transmitting the vexed letter through the National Assembly and PDP members and a presidential Aide, scheduled to visit with President YarAdua in Saudi Arabia shortly, or that President YarAdua voluntarily resigns as President of Nigeria or that the National Assembly, finally live up to their constitutional responsibilities by impeaching President Umaru Musa YarAdua!

The National Assembly will remain in the eye of the storm. The National Assembly should perform a national duty, by taking the tiger by its tail, insist that the president transmit the letter as specified, stipulated and mandated by section 145 of the Constitution of Nigeria, or procure a resignation from the president as haven resigned voluntarily, based on physical-mental incapacitation or, sua sponte, the National Assembly should on its on accord, impeach President YarAdua and remove him from office as president of Nigeria.

Any actions and or pronouncements short of complying with the exampled and examined constitutional sections and provisions above, will amount to expedient actions or pronouncements and therefore, no adherence to the constitution of Nigeria

Nigeria is a nation of laws, democracy require the enthronement of constitutional due process and the rule of law, procedural and substantive constitutional processes, we insist.





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Comment by arun on July 1, 2019 at 7:39am

This is constitutional accommodations with the entirely all demanding the all expanding and search my computer windows 10 requirement of the democracy. 

Comment by Dr Buki Morgan on February 10, 2010 at 9:41pm
NIGERIA: QUO VADIS (Part II)


If Jonathan does not completely reshuffle the entire cabinet then he is a greater fool than we thought he is. STRONG LANGUAGE INDEED, but carefully chosen, not to offend, BUT TO STRESS THE GRAVE ISSUE AT STAKE.

A knife is now firmly being held between his shoulder blades, and the only way to rid himself of this threat is by a complete change of the guards at Aso Rock. In a previous article I suggested how this could be accomplished and yet retain some semblance of legitimacy. (see below)

The current individuals that he has at the moment, watching over him, bar none are the creators of this dilemma and would prove to be his nemesis if he were to retain them.

He must not forget that this new administration, in the making is a band-aid government, held together by the barest thread of constitutionalism, and that its legality can be successfully challenged in any court of law. One vital thing in his favour, however is that the eyes of world opinion, especially that of the US and UK is upon our situation. And it appears that any solution from henceforth that does not meet the global yardstick of justice and fairness, especially as to the Niger-Delta crisis, the constitutional reform of our electoral laws and of our basic articles of union, will not be acceptable.


Nobody, not even David Mark, who could be said to be one-breath away from the presidency, can try any funny tricks again. Should Jonathan choose to retain the NASS; and it might be better if he didn’t, they should all take it that they are on their last chance. Collective trial of the leadership for treason would have been more appropriate, and no doubt will have met with the overwhelming approval of most Nigerians.

If the populace are not restive as at now, it is not because, the constitution, the judiciary, the executive or the National assembly have measured up to the challenge; it is simply because, being Nigerians we are still willing to give our ‘democracy’ and this band-aid arrangement some last chance, rather than a military take-over.


Lest any-one should forget it, from Yayale and the FEC, Yuguda and the family affair, Saraki and his cottery of state governors, Mark, Bankole and the national assembly, certain members of the judiciary and finally the corrupt assemblage that is the PDP; let them not forget that by the inept way this crisis has been handled from its inception to the present denoument, they have failed this nation woefully as politicians, leaders or statesmen. Attempts at the manipulation of the Constitution by a group of people, whether civilian or military, constitutes an act of TREASON.

Dr Buki Morgan MBBS psc
Colindale, London & Surulere, Lagos.
Posted 10 Feb 2010 1440 hrs





NIGERIA: QUO VADIS Part I


The current path being mapped out for Nigeria by some dodgy elements from the axis of evil is one that is fraught with danger and evil forbodings. If care is not taken, it is one that will surely lead down the slippery slope to hell.

To start with this same group of evil men deliberately hijacked the constitution late last year, and aided and abetted by the AGF and some compliant judge, continued their macabre dance of playing with words and our future. Now when all else have failed to vindicate them, they come up with the unkindest cut of all. Impose a government on us that will continue to do their bidding.

Right through it all, Jonathan remained a pawn in their grubby hands. A man without a will, and the poorest example, in times like this , of a leader who will lead from the front.


However, if this is the best we have to work with, that is as close to a semblance of constitutional authority, at least till the year 2011, let us fashion for ourselves the most practical and expedient band-aid administration as best we can.

Jonathan’s lack of demonstrable leadership attributes implies a discernible and inherent weakness in any administration he may head, not unless it is fortified by proven and effective intellectual hands that will give it global credibility and support from its inception. We may need to re-draft Ngozi Okonjo-Iweala, Emeka Anyaoku and Chris Kolade. Secondly, the intellectual weakness would be further threatened by the question of the security of the state and the Jonathan administration. Hence any regime that plans to dispense completely with the status quo, must understand that it poses a threat to the prevailing vested interests. This evil axis will stop at nothing to destabilise it.

Two facts emanate from this realisation: One its legitimacy must be backed by some form of popular endorsement till 2011 at least: say an approving referendum of the people or massive rally in support thereof and Two enough muscle power that will deter any adventurist exploitation at destabilisation. A certain way to discourage the axis of evil is to have one or two members of the security service man the ministries of defence and internal affairs. That should not be too hard to do, since it is in no way suggestive of a military take-over which chiefs of defence staff have publicly disavowed.

Finally, a break with the past, means a CLEAN BREAK WITH THE PAST. It will mean proscribing for the moment all instruments of government that remotely had legitimacy under the PDP and the Yar ‘Adua administration. It is not the perfect solution and one does not claim an immutable answer to this urgent national problem.

A NATIONAL DEBATE MUST COMMENCE NOW, AND NOT BE LIMITED TO THE AXIS OF EVIL ALONE.

Dr Buki Morgan MBBS psc
Colindale, London & Surulere, Lagos.

Posted 07 Feb 2010 2010hrs
Comment by akintomide on February 10, 2010 at 8:08pm
This is a very nice write up and a good analysis. The Constitution may not have provided for a President who is unconscious to transmit such a letter. I think we should allow the method adopted by the National Assembly to fill the gap. Rome was not built in a day. When a President has not transmitted any letter for more than 70 days it is proper for any of the arms of government to save democracy. The intervention of the Senate should be seen in that regard. Let Nigeria move forward. Wishing the President good recovery.
Comment by Paul I. Adujie on February 10, 2010 at 4:32pm
While I agree with you that the interests of 150 million Nigerian citizens should be the paramount considerations in all of these... I must remind all of us, the importance of The Rule of Law and Constitutionalism in democratic government and good governance.

I am quite unhappy with the continued absence of the substantive president, President YarAdua, for his neglect and refusal to transmit the constitutionally mandated letter to the National Assembly... which has created these unnecessary political and constitutional crises and tensions.

He also have had almost 80 days since November 23rd 2009 when he left Nigeria... enough time to have contemplated resignation... if that is what his physical and mental health conditions now demands/requires.

The National Assembly should have acted more perfectly, in compliance with the constitution at this stage, with an impeachment and removal from office of President YarAdua... instead of this stop-gap measure which seemingly ignores the constitutional provisions as I analyzed and examined in this article.

Gaskiya Tafi Kwobo
Comment by Gasky Truth on February 10, 2010 at 4:06pm
My question is it costitutional for sick President Umaru Musa Yar'Adua remain indefinitely in Saudi Arabian hospital while 150million Nigerians remain without a leader?. While his illitrate wife Tuaria & some cables control our oil resources & the nation's life-line. Why must Nigerians be slaves in their own country due to the greedy and selfishness of some previlage individuals who are in POLITICAL POWER?. Acting President Goodluck Jonathan should be made President if Yar Adua did not recover within 30days.

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