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Abati: The Jonathan Presidency (4)

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The framers of the Nigerian Constitution had contemplated such a situation in which Nigeria found itself with President Umaru Musa Yar'Adua's illness and hence Sections 143-146 of the 1999 Constitution address issues of vacation, indisposition,

incapacitation and impeachment with regard to that office. But in applying the law in Nigeria, the main issue has continuously been one of leadership responsibility, and the failure of those who should protect the common good. The handling of Yar'Adua's illness was a classic case of impunity.  With President Yar'Adua having failed to transmit a letter to the National Assembly to cover his absence as required in Section i45 of the Constitution, and with it becoming public knowledge that the President was terminally ill (NEXT newspaper would soon publish a scoop announcing that Yar'Adua was brain dead), there were several options.

Section 144 empowers members of the executive council of the Federation, through a two-thirds majority to declare the President or Vice president 'incapable of discharging the functions of his office.' A medical panel is then set up to verify the report and the National Assembly is required to take consequential action. which would be officially gazetted, and from the date of the publication of the gazette, the President will cease to hold office. But the Executive Council of the Federation, defined by the Constitution as the 'body of Ministers of the Government of the Federation' refused to so act. There was so much inane talk among them about loyalty, although this in retrospect seems understandable. Offices of Ministers are as established by the President (Section 147 (1)) which means that Ministers are his appointees. In the tough terrain of culture and tradition that is part of the governance culture in Africa,  it would have amounted to betrayal for such persons to bite the same fingers that invited them to 'come and eat'.

Given conflicting reports about the President's ill-health, the Ministers also deemed it necessary to play safe.  By the 39th day of President Yar'Adua's absence, the government had been effectively taken over by his wife, Turai and a small cabal of pro-Yar'Adua loyalists. There were organized trips to Saudi Arabia, with select Governors and Ministers (including Governors Isa Yuguda and Bukola Saraki) returning from Saudi Arabia and claiming to have seen the President. The Ministers were on the leash of the emergent cabal. Indeed, this was a learning period for Nigerians seeing how a First lady and a team of sycophants could hold 150 million Nigerians to ransom. The cabal proved to be deviously inventive. Section 148 of the Constitution says the Vice President can only act at the discretion of the president. Through the auspices of the cabal, two cases were instituted in court to stop Jonathan from pretending to act on behalf of his boss. In the first case in which ruling was obtained within two days, Justice Daniel Abutu of the Federal High Court, Abuja ruled that Jonathan was not in any position to act as President.

Aondoakaa, then Attorney General of the Federation (AGF) and a key Yar'Adua fire-fighter, told the National Assembly to respect the court ruling. In the meantime, there was public pressure on the Executive Council of the Federation to invoke Section 144. But Abutu's ruling was explicit and declaratory. He said: 'the only condition that could warrant his (Goodluck Jonathan) change of status from Vice President to Acting President is willful compliance by President Yar'Adua to activate the provisions of Section 145 of the 1999 Constitution via transmitting a written declaration to the National Assembly endorsing power shift.' The learned Judge added that 'he could not and would not invoke the doctrine of necessity as being urged by the Nigeria Bar Association (NBA) to declare that the VP was entitled to perform the functions of the President in an acting capacity in view of the omission or failure by President Yar'Adua to transfer powers.'

Still, the Executive Council of the Federation refused to act. On February 3, 2010, Professor Dora Akunyili later broke ranks and wrote a five-page memo to the Council asking that a resolution should be passed by its members to make Jonathan acting President. 'If we fail to act now,' she said, 'history will not forgive us.'  Akunyili had upstaged her colleagues and it became unfashionable for anyone of them to continue to hide behind a finger.  This resulted in a face- off between Aondoakaa and Akunyili, with an exchange of abusive letters, and  the latter demanding an apology from fire-spitting Aondoakaa who had impugned her integrity.  There was in every respect, at this period, a wanton display of opportunism. But the Akunyili memo had the effect of emboldening a few of the Ministers who had also thought that the country needed to be saved. The EXCOF became divided with the emergence of a group known as G-10. More on this later.

The National Assembly is empowered to exercise oversight functions. Specifically under Sections 143 -146, it is its remit to ensure that the Presidency is not violated. But the lawmakers dilly-dallied, and refused to initiate impeachment proceedings as advised. On December 15, 2009 or thereabouts, Senator Victor Ndoma Egba tabled a motion, as a matter of urgent national importance, asking the Senate to discuss the matter of President Yar'Adua's ill-health. His request was shot down personally by the Senate President, David Mark, who dismissed the motion as premature and asked instead for the declaration of a nine-day prayer session for Yar'Adua. The House of Representatives also refused to inquire into the matter. The Nigerian civil society was however unrelenting in its insistence that the country is more important than any individual. In addition to aforementioned groups in civil society, the Concerned Nigerian Group led by former Senate President, Anyim Pius Anyim, and the Eminent Elders Group led by General Yakubu Gowon, sent a letter to the Senate President, the Speaker of the House of Representatives and the Vice President asking that the National Assembly should pass a resolution to empower the Vice President to act as Acting President and to save the country from anarchy.

The international community was also justifiably worried about the state of confusion in Nigeria, as recent revelations by WikiLeaks on Nigeria during the period would seem to confirm. The tension was so much that one newspaper reported that Vice President Goodluck Jonathan had stopped eating food prepared by cooks in the Presidency. It was alleged that there were either plans to eliminate him or stage a military coup. The January 15, 2010 Armed Forces Remembrance Day also created some challenges. It was initially not clear whether Dr Jonathan would lay the wreath at the parade since he had no powers to act as Commander in Chief of the Armed Forces. He eventually attended the ceremony, persuaded by those who advised him to act Presidential, but he went to the event wearing a bullet proof vest, and the soldiers on parade were not allowed to carry live ammunition.

Meanwhile, the National Assembly seemed to have had no option but to respond to pressure. The pro-Yar'Adua cabal and Turai Yar'Adua had become more desperate. Earlier, there were reports that the ailing President signed the 2010 Appropriation Bill which was taken to him on sick bed in Saudi Arabia around December 30, 2009, to give the impression that he was indeed recovering. Principal Secretary to the President, David Edevbie was said to have taken the Bill to Jeddah and back. On January 11, 2010, President Yar'Adua also made what was considered a public appearance when he spoke for three minutes by telephone on BBC telling Nigerians in Hausa and English:  '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…. I wish at this stage to thank all Nigerians for their prayers for my good health and for their prayers for the nation.'

He then wished the Super Eagles who were taking part in the African Cup of Nations in Angola success. His voice was weak. The interview conducted by Mansur Liman of BBC Hausa Service was relayed by local radio stations. But Nigerians were inconsolable. They demanded a television interview. They wondered why the President of Nigeria would prefer to speak to his own people through the BBC, from a foreign hospital! They insisted that the interview was contrived the same way the President's signature was forged with regard to the signing of the N352 billion 2010 Appropriation Bill. On January 12, The Save Nigeria Group took to the streets in protest in Abuja, the Federal Capital Territory.

A week earlier, the Nigeria Bar Association and other lawyers including Bamidele Aturu and Femi Falana had also gone to court asking President Yar'Adua to resign. NBA President Oluwarotimi Akeredolu also asked Yar'Adua to act as a patriot and put the country first. Meanwhile, Nigeria's active rumour mill turned hyper-active with all kinds of stories about the President's condition and how the treasury was being looted. On January 12, 2010, the National Assembly passed a resolution giving Yar'Adua a 14-day ultimatum to transmit a letter of medical leave to the Senate. The National Assembly also constituted a team to go to Saudi Arabia to ascertain the true state of the President's health. The national leadership of the Peoples Democratic Party (PDP) also sent a delegation.

The Secretary of the Government of the Federation, Alhaji Mahmud Yayale Ahmed was summoned by the Senate. He was not of much help other than pointing out that the required letter had in fact been written by the President and that the National Assembly should summon the Special Adviser to the President on National Assembly Matters, Senator Mohammed Abba-Aji to explain why the letter was not delivered. For almost a week, the presidency played games with the issue of this letter. Abba-Aji promised to produce the letter, then the SGF changed his story, both men passed the buck. It was a sordid advertisement of the ineffectiveness of the Nigerian system.

On January 21, a group of Senators formed the National Interest Group. Its members included Senators Smart Adeyemi, Abubakar Gada, and Bala Mohammed (as Chairman) who took it upon themselves to mobilize their colleagues in the National Assembly to act in the best interest of Nigeria. The National Assembly was polarized into two camps. But by January 27, the Senate began fresh discussions of President Yar'Adua's ill-health. On February 9, the same National Assembly passed a resolution empowering Vice President Goodluck Jonathan to assume office as Acting President.

The Assembly based its action on the BBC interview by President Yar'Adua, submitting that under the doctrine of necessity, the interview and its transcription could be taken as written application for leave by the President. This of course was not true and questions were raised about the legality of the National Assembly's action by Professor Omo Omoruyi, the NBA, Anselm Eyo of the Citizens Forum for Constitutional Reform, Inuwa Bakari, Supo Shonibare, Balarabe Musa, Mike Ibanga and other concerned citizens. One Farouk Aliyu Adamu and Ataguba Aboje also went to court in protest.  But the country had drifted for so long, that the people were willing to accept any solution to the logjam. Even the House of Representatives which had resisted the transfer of power to Jonathan separately endorsed the resolution.

The Integrity Group, a body in the House, led by Farouk Lawan had  insisted, like Alhaji Tanko Yakassai, a Northern leader, that the balance of power in the country will be affected if Jonathan was allowed to act as President. Nonetheless, the National Assembly on February 18, further passed a resolution amending Section 144 of the 1999 Constitution placing a time limit of two weeks for the President to be absent from office without transmitting a letter to the National Assembly. In such circumstance, the Vice President automatically assumes office in an acting capacity, thus robbing the President of any claim to discretionary powers in the matter. Yar'Adua and his loyalists had shown that a country could be held to ransom through the manipulation of gaps in the law. In passing the resolution, the National Assembly reportedly consulted many groups and stakeholders including the Bukola Saraki-led Governors' Forum which had become more influential in the country than hitherto.

Jonathan immediately accepted the verdict. He was the first Niger Deltan to be Nigeria's Vice President and the first person from that part of the country also to act as President, more than 50 years after the Willinks Commission report on the right of minorities within the Nigerian Federation.  Nigerians, particularly civil society heaved a sigh of relief even as the laws of the land had been compromised. To give its action the cover of legality, the National Assembly issued a letter addressed to the Secretary to the Government of the Federation, referenced NASS/C5/R/05/III/92 and dated February 10, 2010, which stated inter alia that Vice President Jonathan will henceforth act as president and cease to do so when the President transmits to the National Assembly 'in writing that he had returned from his medical vacation'. Alex Izinyon, in an informed opinion, wrote that the resolution had the force of law. (The Guardian, Feb 16, 2010 at page 78.)

This was the formal commencement of the Goodluck Jonathan Presidency. In 78 days, so much had happened in Nigeria in terms of respect for the rule of law and the conduct of public officials. All through, Goodluck Jonathan conducted himself after the fashion of a gentleman. It is most unusual for a man in his position not to hanker after power, but he did not, and no one could accuse him directly of seeking to depose his boss. His humility and reticence worked in his favour as Yar'Adua's loyalists depleted his store of goodwill with the public; subsequently, Turai and her collaborators did more damage to the Yar'Adua persona. Niger Delta youths were understandably excited that their kinsman was now President, but the more interesting fact of the Jonathan Presidency was how a once reticent political figure suddenly became an assertive man of power. The story of Jonathan's Presidency provides very strong lessons in the power of power itself and its multifaceted impact.

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