Section 145 exposed!


The Peoples Democratic Party (PDP) has lately confirmed long-held belief by some, that it is not fit to manage the affairs of Nigeria. Decent and honest men and women in positions of power seek out the interest and overall good of the nation, even at personal cost. They don't go about fishing for tenuous reasons why constitutional provisions can be side-stepped. For about three months as I write, Nigeria has been thrown into a constitutional crisis by the Peoples Democratic Party (PDP). While expressing my profound joy that PDP did not win the governorship election conducted in Anambra state on February 6, 2010, I must state that this is only the beginning of PDP's nightmare going forward. Fellow Nigerians, no matter the candidate the PDP puts forward in any future elections—legislative or executive, we must record a protest vote. The PDP has conducted itself in a manner that is very insulting of our prestige as a people. Our feelings and public opinion don't matter to the party. The PDP holds us in disdain.

North, South, East and West, we must massively vote against the PDP, a party of men and women of no values and decency. PDP has conspired to hold Nigerians in captivity. The PDP is full of ego and self-conceit, believing we can do nothing to stop them. I appeal that if nothing will bring us together at this time, at least we should be joined in the common desire to inflict painful defeat on PDP anywhere elections are held. Let us send the message that Nigerians are deserving of respect. Let us force the PDP rigging machine to commit suicide by attempting to rig. Let us sponsor advertisements against the PDP, using their despicable handling of the Yar'Adua drama as the clincher. Can a party that cannot uphold and defend our constitution be trusted with power? Can a party which controls the legislature be depended upon to promote our national dignity? How good can come out of misery! Who doubts now that the PDP's downfall is here? PDP will implode and fall.

The conspiracy orchestrated by the PDP, which has kept Nigerians perpetually deceived, disillusioned, and ignored must not go unpunished. The advantage of senseless conspiracy, such as we have seen the PDP engaged in lately, is that it makes you to examine relevant issues more closely. Let us take another look at section 145:

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-Presidents as Acting President.

Have you noticed that word “until” tucked in the section above? How could we have missed this all these months? Section 145 of the Nigerian constitution is actually about when a President can resume his duties when he has proceeded on vacation or after a season when he is unable to perform his duties. The transmission of a written declaration by a sitting President to the President of Senate and Speaker of the House of Representatives is only in his own interest, in order to preserve his position. Let me explain. The national assembly could initiate an impeachment motion against an absentee president, which could be urged by a Vice-President (Acting President) who is desirous of removing the president in order to take over, not in acting capacity, but full capacity. But in the event that the president transmits a written declaration, he secures his position until he returns via another simple transmission.

Section 145 does not say that the Vice-President, who by convention and law shares the presidential mandate, CANNOT assume the position of Acting President in the event that the President is absent UNLESS the president transmits the written declaration. The key word in the section in reference is not UNLESS, but UNTIL (which imposes restriction on resumption of office by a sitting President). We must understand that according to section 142 (1), we have that:

In any election to which the foregoing provisions of this Chapter relates, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that person shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid. From section 142 (1) above, i. There is no President without a Vice-President;ii. The Vice-President is an associate of the President;iii. The Vice-President is “elected with” the President (see also section 136 (1); andiv. There is the constitutional elective office of Vice-President (see also section 141).

According to Oxford Advanced Learner's dictionary, an Associate is “a person that you work with, do business with, or spend a lot of time with.” An Associate, by this definition, is not an “Assistant”. The same dictionary defines an Assistant as “a person who helps or supports somebody, usually in their job.” The Vice-President of the Federal Republic of Nigeria is the Associate of the President and NOT Assistant. For the sake of constitutional maturity and test as a nation, Dr. Goodluck Jonathan should start exercising the full powers of President of the Federal Republic of Nigeria in the absence of our dear President Yar'Adua. Let him do this, not for his benefit, but so that consequential judicial pronouncements will clearly articulate the powers of the holder of the office of Vice-President of the Federal Republic of Nigeria. There are arguments by some legal experts that the holder of the office of Vice-President is a lame duck. Hail no! The Vice-President is the Associate of the President, according to the 1999 constitution. It is an impeachable offence for the Vice-President to permit, allow, and watch the nation drift in the absence of Mr. President! A close examination of the constitution convinces me that Dr. Goodluck Jonathan is our problem now. If the national assembly rejects communications from Dr. Jonathan, now that the president is absent, that would be a good ground for a legal interpretation by the courts. In fact, a Federal High Court has already ruled that there is no leadership vacuum in Nigeria. Acting President Jonathan should forthwith swear in Permanent Secretaries for federal ministries, which presently don't have any. Any further delays and he should be held accountable. Whatever assignment that needs the President's attention must be attended to by Dr. Jonathan. He has dithered for too long.

As I conclude, let me inform of the grave dangers that President Yar'Adua has forced himself into by his failure to send the written transmission. Dr. Jonathan has presidential powers to dissolve the cabinet and appoint ministers who would do his bidding. After the appointment, they could by two-third majority resolve that President Yar'Adua is incapacitated to perform his duties as President. Because Yar'Adua failed to transmit a written declaration, the senate will be forced to act on the resolution; why? President Yar'Adua has not secured his position via a written declaration to the national assembly, which could have made the legislators to query such a resolution since by the written declaration, the President had already intimated them of his absence, which thereby relieves him of the responsibilities of President of the Federal Republic. It would therefore be legally hasty, imposing no urgency, to act on such a case, when the principal has voluntarily taken time off to attend to himself, thus devolving power, albeit temporarily, on the Vice-President (the Associate). I must add that the President is not the “boss” of the Vice-President, as erroneously implied or stated in Nigeria. The President never hires the Vice-President; they are “elected together.” [See section 136 (1)].

Some have reported that the national assembly was being persuaded to receive communications from the Vice-President in the absence of the President. If the national assembly is relying on section 67, which deals with the “Right of attendance of the President”, the lawmakers need to be reminded thati. Whereas section 67 (2) gives conditions for attendance of a Minister of the federal republic of Nigeria, section 67 (1) talks about the discretionary attendance by the “President”.ii. Section 67 (1) could not be interpreted as excluding the “Vice-President” since he is constitutionally recognized as the Associate of the President. Consequently, the national assembly cannot prevent the attendance of the Vice-President simply because he is not the “President”. I have explained the reason above.

Another reason for the written transmission, referred to in section 145, is to alert the national assembly so that it will know of the absence of the president. It is no secret that President Yar'Adua is absent without official leave. It is on record that the Senate had summoned the Secretary of the Federation and the President's Assistant on National Assembly matters to brief them about the president's absence. Late November last year, the President's Special Assistant on Media and Communications addressed the nation on the President's absence due to health problems. Since the national assembly knows, even without official communications by the president, of President Yar'Adua's absence from office, it would be constitutional ignorance, specifically, ignorance of the constitutional powers of the Vice-president for lawmakers to reject communications from the Vice-President; it would amount to constitutional breach.

We must thus understand the ruling by Judge Dan Abutu, and probably the position of the Minister of Justice and the Attorney-General of the Federation, Michael Aondoakaa. Dr. Goodluck must not allow the nation slide further. He must take urgent steps that will further clarify our constitution. Neither the Governor's Forum nor any other should be depended upon to stop this “power vacuum”. If there is any vacuum, it is because Dr. Jonathan has abdicated his constitutional responsibilities. Having said all these, I need to say without reservation that any resolution passed by the national assembly that Goodluck Jonathan should to be sworn-in as Acting President or “empowered” as such, or to start receiving executive communications from him would only be perfunctory. But the constitution should be further examined and germane judicial pronouncements made for the future. It is not about Jonathan being “loyal” to Yar'Adua as “Acting President”; it is not about heeding the advice of some “Elders' Forum”. We need a definitive pronouncement of the highest court of the land on the issues in contention. Judicial appeals remain the process. The destination lies ahead. Leonard Karshima Shilgba is the President of the Nigeria rally Movement ( ), and assistant Professor of Mathematics with the American University of Nigeria.

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