By Ise-Oluwa Ige (14th Jan 2010. Vanguard.)
ABUJA—A Federal High Court sitting in Abuja, yesterday, declared that Vice President Jonathan Goodluck is empowered by the 1999 Constitution to exercise, in the absence of President Umaru Yar’Adua, all the powers vested in him, including signing of sensitive documents, so far such powers are delegated to him.
The presiding high court judge, Justice Dan Abutu made the pronouncement while interpreting the meanings and intendments of sections 5(1) and 148 (1) of the 1999 constitution in a suit brought by a lawyer, Mr. Christopher Onwuekwe.
Onwuekwe, in his suit, FHC/ABJ/CS/10/2010, had requested the high court to declare that in the absence of President Yar’Adua who is receiving treatment in Saudi Arabia, the Vice President, by virtue of the provisions of Section 5(1) and 148 (1) of the 1999 Constitution, could exercise all the powers vested in the President in the interest of peace, order and good governance pending when his boss, Yar’Adua, would resume office. He sued the Attorney General of the Federation and the Executive Council of the Federation.
He filed the suit last week and served the originating processes on the Office of the Attorney-General of the Federation last Monday while judgment was delivered in the case yesterday by the Chief Judge of the Federal High Court. If it is not the fastest case ever decided by the Nigerian judiciary, it must be one of the fastest because it took the court less than 96 working hours (four days) for the registry of the court to take all processes in the case, hear it on its merit and deliver judgment.
Exercise of presidential powers
In the verdict handed down, the trial judge, Justice Abutu granted the two reliefs requested by Mr. Onwuekwe to the effect that Vice President Goodluck could exercise, in the absence of the sitting president, all the powers vested in the President.
He said the exercise of such presidential powers by the Vice President could only be queried by Mr President if he did not permit the Vice President to so perform the presidential functions. Justice Abutu said the constitutional authority of the Vice President to so perform the presidential functions is enshrined in both sections 5(1) and 148 (1) of the 1999 Constitution.
Section 5(1) of the 1999 Constitution reads: “Subject to the provisions of this Constitution, the executive powers of the Federation; (a) Shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice President and Ministers of the Government of the Federation or officers in the public service of the Federation and, (b) Shall extend to the execution and maintenance of this constitution, all laws made by the National Assembly and to all manners with respect to which the National Assembly has, for the time being power to make laws. Section 148 (1) of the 1999 constitution also reads:
“The President may, in his discretion, assign to the Vice President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation including the administration of any department of government.
Justice Abutu said the two constitutional provisions (sections 5(1) and 148(1) of the 1999 constitution are clear as to the powers of the President to transfer any of his presidential functions to either his vice president or any of his cabinet members.
Before drawing curtain on the interpretation of the two constitutional provisions, the trial judge added that both sections 5(1) and 148 (1), however, did not specify the manner or the procedure through which Mr. President could delegate any of the presidential powers donated to him by the 1999 constitution.
He consequently held that it is, therefore, not available for anyone or institution to pry into the mode of the power transfer by the sitting President to his vice or ministers, noting that so far the president has not complained or challenged the vice president or his ministers over usurpation of his constitutional functions, no one could challenge the exercise of his presidential functions by any member of his cabinet.
Similarly, Justice Abutu, also delved into the meanings and intendments of section 145 of the 1999 constitution even though the subject-matter of the suit being determined did not rest, in the main, on the constitutional provision. While interpreting section 145 as it related to when the Vice President could exercise the powers of the sitting president as an acting president, Justice Abutu said “when the Vice President is exercising the powers of the President as an Acting President, he is exercising that powers in his own right as acting president and not on behalf of the president.
Written declaration to National Assembly
He said the Vice President, Jonathan Goodluck in this case, can exercise all the powers of the sitting President, Umaru Yar’Adua, both as Vice President and as Acting President, stressing that the difference between the two is that Vice President Jonathan Goodluck could not perform the functions of the President under section 145 of the 1999 Constitution except there is a written declaration to the National Assembly while Goodluck could perform all the functions of the President (Yar’Adua) without any written declaration to the National Assembly so far he is discharging the delegated duties in his capacity as Vice President.
The pronouncement on the three different provisions of the 1999 Constitution: sections 5(1); 148(1) and 145 of the 1999 constitution has, no doubt, doused the rising tension in the polity, at least for now.
Attorney-General of the Federation, Chief Michael Kaase Aondoakaa, SAN, who was personally in court to take the judgment said the position of the court had vindicated him on his view that the sitting President, Umaru Yar’Adua could govern the country from anywhere in the world. He said the verdict has resolved the controversy on whether or not the Vice President could exercise all the functions of the sitting President without any written declaration transmitted to the National Assembly.
The knotty suit maintained by radical Lagos lawyer, Mr. Femi Falana, and a separate one by former member of the House of Representatives, Hon. Adamu Farouk, are predicated on section 145 of the 1999 Constitution which the court had interpreted.
Aondoakaa said moments after the judgment: “It seems the judgment has vindicated my position all along. You heard the court say that no person or authority can question the Vice President when he exercises the powers of the President.
It is only the President that can say I didn’t give you those powers. The court also went on to give a final declaration which has settled, I believe, all the crises to the effect that the Vice President, in the absence of the President, can carry out all the functions of Mr. President pending when he arrives. To me, it is a good judgment. The plaintiff brought me here.
He canvassed all the issues and we filed our counter-affidavit and in the wisdom of the court, it found that I was correct. I have been vindicated. “The issue of section 145 has also been clearly stated. That it is a discretionary provision. The President may wish to transmit or not transmit. And when he transmits, it means the Vice President is no longer exercising the powers of the President on his behalf but exercising the powers in his own right.
But now the powers which the Vice President has been exercising under section 5 of the 1999 Constitution before now, the court said he can continue to act on behalf of the President all the powers vested in the President.”
On why it was difficult for the Vice President to sign the appropriation bill when he can exercise the powers of the President, Aondoakaa said he could not do that at the time because “we have not got the interpretation of the law. With this interpretation, he can now sign anything the President can sign. He can send bill to the National Assembly and he can sign any bill now.”
Also reacting to the judgment, Mr. Amobi Nzelu, the lead counsel to the plaintiff, said the judgment was the best in the precarious circumstance Nigeria finds itself today. According to Nzelu, “the court has upheld the case of the plaintiff who has come to court to seek a mid-course rather than make a heavy weather of section 145 of the 1999 constitution.
We had to bring together section 5(1) and 148 (1) to say that the Vice President can, in the absence of Mr. President, carry out the functions of Mr. President without necessarily transmitting a letter to the National Assembly. That was why we were in court and the court said yes, we were right and that the vice president can do that.
It is our view that we don’t need section 145 to come into play before VP Jonathan can perform the functions of the sitting President who is presently not available. We came to court and the court has upheld our argument saying that Jonathan Goodluck, as Vice President, can lawfully execute the functions vested in Mr. President until the ailing President returns from his medical leave.
That is why we came to court. Although by this judgment, Jonathan could not be called an Acting President but I tell you, the phrase “Acting President” is just a matter of nomenclature. The most important thing is that he can perform the functions of the President. So, it now depends on the name you want to give him: Acting President or President by Court Order.