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NASS AND DESECRATION OF CONSTITUTION

By NBF News

NASS and desecration of constitution
By Nkemjika
Monday, March 15, 2010
In the eyes of the 1999 constitution, there is no provision for an acting president or office of acting president. This explains why nobody stands or wins election for the office of acting president or gets sworn in as acting president of Nigeria. As would be made explicit in this discourse, the National Assembly (NASS) went on a wild goose chase when it claimed that it passed a resolution empowering the vice-president, Dr Goodluck Jonathan to become the acting president of Nigeria.

The efficacy of the submission made here will become educatively apparent as we embark on a critical appraisal of some of the provisions in chapter VI of the constitution of Nigeria. Section 130(1) of the constitution says, 'There shall be for the Federation a President'. Section 141 insists, 'There shall be for the Federation a Vice-President'. There is no word anywhere about an acting president for Nigeria.

In fact section 296 kills any notion about an office of acting president in Nigeria. Section 296 maintains, '…unless the context otherwise requires, 'office' when used with reference to the validity of an election to an office includes the office of President of the Federation, Vice-President of the Federation and Governor or Deputy Governor of a State but does not include the office of the President of the Senate, Speaker of the House of Representatives, Speaker of a House of Assembly or any office not established by this constitution'. Unless we decide to be mischievous, a combined reading of sections 130(1), 141 and 296 makes the point that there is no position or office of acting president recognized by the constitution.

Again, section 139 of the constitution insists, 'The National Assembly shall by an Act make provisions as respects – (a) persons who may apply to the Court of Appeal for the determination of any question as to whether – i. any person has been validly elected to the office of the President or Vice-President, ii. the term of office of the President or Vice-President has ceased, or iii. the office of the President or Vice-President has become vacant'. Similarly, section 143(1) of the constitution says, 'The President or Vice-President may be removed from office in accordance with the provisions of this section'. Of course, because the position of acting president does not exist in the supreme law of the land, the constitution fails to say anything about the term of office of an acting president or the removal of the acting president of Nigeria.

Interestingly too, section 144(1) of the constitution insists, '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 Vice-President 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'. As could be gleaned from this section that talks about permanent incapacity of President or Vice-President, no consideration is made whatsoever about an acting president because such a position does not exist in the constitution of the Federal Republic of Nigeria.

Even the contentious section 145 of the 1999 constitution does not make any provision for the office of acting president and does not mandate anybody to become the acting president of Nigeria. Section 145 states, '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 be discharged by the Vice-President as Acting President'.

An elementary understanding of the English language shows clearly that section 145 of the constitution simply says that whenever the President informs the leadership of the National Assembly about his leave of absence from duty, the presidential functions of the President shall be discharged by the Vice-President in an acting capacity. Section 145 did not say that an acting president would perform the functions of the President in his absence because the office of acting president is unknown to the constitution of the Federal Republic of Nigeria.

Anybody who doubts the efficacy of the meaning of section 145 as defined here above should go back to the subhead explanation for this section in the constitution. This subhead that brings section 145 of the constitution into existence says, 'Acting President during temporary absence of the President'. The key phrase that defines the meaning of the subhead is 'temporary absence'. Now, there is no circumstance where the phrase 'temporary absence' could be said to mean the same thing as 'temporary removal'. In other words, the transmission of a written declaration from the President to the leadership of the National Assembly does not in any way remove the person occupying the office of the President from office.

At any point in time, the President is the Head of State and Commander-in-Chief of the Armed Forces of the Federation whether he is in the country or outside the country. On the issue at hand, President Yar'Adua remains the Head of State and Commander-in-Chief of the Armed forces of the Federation when he was in Saudi Arabia and now that he is back to the country.

The truth is that there is no circumstance in which section 145 of the constitution suggests that whenever a written declaration is sent to the leadership of the national legislature by the President on his indisposition to carry out his responsibilities to the nation that the National Assembly shall pass a resolution empowering the Vice-President to become the Acting President of Nigeria; a position that exists only in the infantile imagination of our lawmakers and their chorus of hosanna and hallelujah chanting supporters.

When, therefore, the National Assembly passed a resolution that does not even have any force of law claiming to have empowered Dr. Goodluck Jonathan to assume a non-existent position of the Acting President of Nigeria, its members were only advertising their ignorance or lack of understanding of the contents of the tool (the constitution) with which they are supposed to be making laws for the good governance of Nigeria.

•Mr. Nkemjika, a Research Writer and Media Consultant with Global Media, is the co-Author of the book, 'Oil Exploration in Northern Nigeria: Problems and Prospects'.