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By NBF News
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Recently, the Senate passed a resolution approving the swearing in of Vice President Goodluck Jonathan as acting president, pending when ailing President Umar Musa Yar'Adua would be fit to discharge his official duties.

Before this resolution, the Senate came under intense villifications from Nigerians, who accused it of indifference while the nation remains rudderless.

Deputy Senate leader, Victor Ndoma-Egba, a Senior Advocate of Nigeria (SAN), however, explains to Saturday Sun the encumbrances, which the Senate has to contend with.

You were the first to express concern over the state of health of the ailing president in the Senate. Do you feel vindicated now?

In a way, I will say yes. At the time I raised it, in November, the motivation for doing it was because that was the time the Senate was sitting after it was officially acknowledged that Mr. President was ill and was receiving medical attention in Saudi Arabia. Before that, it was speculation. That was before Mr. President's special adviser on media, Segun Adeniyi, made an official statement on it. At that point, it became official and Senate was meeting for the first time. I felt that it would have been appropriate for the Senate to note, formally, a major development like that, so that it would appear in our record and then it would make it easier for us, should the need to take subsequent steps arise.

Was your bill shot down out of ignorance or deceit?

I don't think that is correct. What we know isn't different from what you know.

Considering the PDP zoning arrangement, what do you think about Jonathan's emergence?

I am not aware of the zoning requirement, whether constitutional or legal or otherwise that says the president must be impeached. I am not aware of that.

Why was the National Assembly initially reluctant?

The good thing is that we had the advantage of two days of robust debate on the situation. As you know, we had our longest session at that time. We took a critical look at the constitution. One thing is evident, the Senate, like the Executive and the judiciary, is a creation of the constitution. The constitution that created them spelt out our powers and the limit of those powers. Now, if you look at the options that we have in the circumstance, they are in sections 143 to 145, but in terms of which one comes first I think we should start from 145, 144 to 143. Now, section 145 gives the president the discretion to inform the National Assembly whenever he is proceeding on leave or he is going to be absent. It is a discretionary power.

Now, what is the limit of that discretion? Is it a discretion that is at large, or a discretion that must be used within certain confines?

My own point of view is that a discretion must be used within the confines of the constitution, within the letters and the spirit of the constitution, though you must exercise that discretion, having in mind what your oath of office has enjoined you to do or what your oath of office obligates you to do and also what the constitution, in its totality, intended.

I think anybody who has looked at the presidential oath would know that the president is obliged to give effect to the provisions of the constitution by that oath. That is a discretionary power, but in my view, it must be exercised within the context of the constitution and we are operating a presidential system that vests total presidential authority and the symbolism of our statehood in the person of the president and because the vesting of power and the vesting of symbolism of our nationhood is so absolute the constitution didn't contemplate a situation where there will be a vacuum, even for a minute and that's why the president is expected to run with a vice-president.

You know, the constitution didn't contemplate a minute vacuum, which means that whenever the president is unable to exercise those enormous powers in their totality, then somebody should immediately step in.

But section 145 prescribes the precondition for that to happen and the pre- condition is that the president must transmit or should transmit a letter to the National Assembly. That is self-activating, the moment he does that the VP immediately steps in.

On his return, he sends another letter. That letter automatically returns power to the president. There's no debate, no further action is required. Now, for me there's a lacuna, because the lacuna is this: Section 145 assumes that the president will always be able to issue that letter. Suppose for any reason, the president is unable to issue the letter, the constitution didn't contemplate that.

The difference between Sections 144 and 143, which is the one we know as impeachment procedure, is that the power to impeach is also vested in the National Assembly under 144, but that power is exercisable only on grounds of gross misconduct. But when the president or vice president is unable to perform the functions, through any medical conditions or inability, it is section 145 that applies.

So, you can see how the constitution has spread out the responsibilities to terminate the functions of the president. The power to do so is shared between the president/his executive council and the National Assembly. But the one that is vested in the president is temporary, because whenever he returns, he picks his functions. But 144 and 143 are permanent.

Now, why am I taking the trouble to go through all these? The public is ascribing to the National Assembly powers that it doesn't have. We are even held responsible for a situation that is right now outside the contemplation of the constitution. Our powers are limited to impeachment for gross misconduct. Now, in my personal opinion, would you describe ill- health as gross misconduct? So, other than being ill, what misconduct is the president guilty of for us to invoke section 143? In my view, none, because if we feel we should invoke section 143 in the present circumstances, we are, inother words, criminalising ill- health and the issue of health or ill-health is beyond the powers of any mortal. We look healthy now, we could take ill the next minute. In fact, we could even die. So, the issue is something that is beyond us.

We must admit that there's a lacuna, which must be addressed. But fortunately after two days of debate, we saw the need to urge Mr. President to transmit that letter.

But we learnt the Senate was arm-twisted to provide soft-landing for Yar'Adua over return mandate. Is that so?

First of all, I am not aware of any such threat. I only read it in the papers. Nobody, and you can quote me on this, nobody approached me and told me that that is on the card. Secondly, if you look, at the provisions of the constitution there is no Yar'Adua or Jonathan provision; you can only have a constitutional provision; they are on the same ticket. There is no way Yar'Adua would have been president under our constitution, without a vice presidential candidate. It is one ticket, joint ticket. It is just that the constitution, in its wisdom, decided to invest all the powers in one person, because in a presidential system, the president is expected to be fully in charge and he symbolises the state.

Is it true after your earlier motion Aondoakaa, met lawyer senators to plead for soft -landing for Yar'Adua?

No, that wasn't what we discussed. I was at the meeting with Aondoakaa.

What did he discuss with you?
At that meeting, the discussion was the import of the first judgment of Justice Abutu, which provided us the leeway. For some, it did, to others it didn't. But when you are working in a group, you can only voice your position, but you are bound by the decision of the majority. Even though I didn't agree that that judgment was a way out, the majority view was that it was and I was bound by it.

Why do you think the FEC has not done the right thing to write the National Assembly?

First of all, I am not a member of that arm of government. So, it would be difficult to speculate on their motive, or their reason. But let me say this. That we have a legal framework and that legal framework is being exhausted in a non-political environment. The Federal Executive Council is made up of appointees of Mr. President. In an African setting, do you truly expect them to invoke the powers of section 145? Let us be very honest with ourselves. We can talk about the normative aspect of the law; we can pontificate. It is like you setting out to say that your publisher should no longer be the publisher of your newspaper when he employed you. Can you, in an African setting, do that?

Could that be the reason Aondoakaa is pitched against the NBA? Would you canvass for the separation of the office of AGF and justice minister to insulate the former from politics?

I know people who say if we change our legal framework, our elections would be better and they try to compare Nigeria with what is obtained in the United States. It isn't the law, but the mentality and the attitude of the AGF. Whether you separate it or not, is it not a

Nigerian that will occupy the seat ?