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Jonathan's acting presidency and the doctrine of necessity

By Chijioke Ogham-Emeka
Thursday, March 04, 2010

On Tuesday, 9th February, 2010, the Senate passed a resolution making the Vice President, Goodluck Jonathan, Acting President and Commander-in-Chief of the Armed Forces. The House of Representatives followed with a similar resolution. The action would ordinarily not have provoked the mixed reactions that have trailed it if it has clear constitutional backing. The Senate's claim that it relied on Section 145 of the 1999 Constitution had added to the controversy.

Now Section 145 provides: '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.' It is difficult to fix the controversial 'tremendous progress' interview granted the British Broadcasting Corporation, BBC, by ailing President Umaru Musa Yar'Adua from Jeddah, Saudi Arabia, into this provision.

The interview does not comply with transmission to the President of the Senate and the Speaker of the House of Representatives. The element of voluntariness is lacking. The president must intend to transmit the declaration. He clearly did not intend the BBC 'transmission' to be used to invoke Section 145. The declaration must be written. The BBC 'transmission' is not the type of 'transmission' envisaged by Section 145. It was electronically broadcast. The declaration must be to the stated persons and not to 'the whole world'.

But the Senate knew that it breached Section 145 because the President of Senate, David Mark, tried to justify the step under the Doctrine of Necessity. This effectively opened a new vista in the debate. It may well be that the spirit of Section 145 was appeased by the resolution, as argued by Mark, but the letters were surely desecrated. So is the haphazard reliance on Section 145 justifiable under Necessity? One plague that often afflicts human documents is their being prone to the lapses of unforeseeability fixed by the limitations of human abilities. This is why the American Constitution had seen many amendments introduced to deal with problems that arose ex improviso.

This is not the first time Nigeria would have an acting president. In the wake of the first military coup d'etat on 15th January, 1966, Dr. Abyssinia Akweke Nwafor Orizu, the then president of the Senate, acted as president. The Prime Minister, Alhaji Sir Abubakar Tafawa Balewa, the Head of Government, was dead. The President of Nigeria, Dr. Nnamdi Azikiwe, the Head of State, was abroad. As the most senior government official available, Dr. Orizu announced the 'voluntary decision' of the rump of Parliament to transfer power to head of Army, General J. T. U. Aguiyi-Ironsi. Ironsi then made a broadcast accepting the 'invitation'.

The 1963 Constitution did not contemplate these. Section 91 envisaged that the Prime Minister could become absent from Nigeria or otherwise unable to perform his functions. Then, 'the President may authorize some other member of the Council of Ministers of the Federation to perform those functions … and that member may perform those functions until his authority is revoked by the President'. But the remedy was short-sighted because when it happened, the president was also unavailable. It then fell on Orizu to act.

The 'voluntariness' or otherwise of the decision was outside the issue as the cataclysmic events of the time had so decimated the government that it was impracticable to abide by the letters of the 1963 Constitution. The legal effect of these events was to be tested judicially, albeit fortuitously, a few years later in LAKANMI V ATTORNEY GENERAL, WESTERN STATE & ORS (1971) 1 UILR 201.

Necessity first crept into case law jurisprudence in 1954 in Pakistan. In STATE V DOSSO (1958) 2 PSLR 180, the Chief Justice of Pakistan, Muhammad Munir, in resolving some difficult constitutional issues, had validated the 'extra-constitutional' use of emergency powers by Governor-General Ghulam Mohammed. He relied on Henry de Bracton's maxim: 'that which is otherwise not lawful is made lawful by necessity' and the Roman law maxim 'salus populi est suprema lex' (the well-being of the people is the supreme law).

In UGANDA V COMMISSIONER OF PRISONS, EX PARTE MATOVU (1966) E. A. 514, the Ugandan Supreme Court, led by Nigeria's Sir Udo Udoma, followed the Pakistani decision to justify Prime Minister Milton Obote's extra-constitutional burial of the 1962 Constitution. Obote removed the president, Sir Edward Mutesa II, and declared himself executive president. Being 'by and large effective' these events were justified under the Doctrine of Necessity.

In LAKANMI V AG WEST (SUPRA), quite by chance, the Nigerian Supreme Court was faced with the issue of the legal effect of Dr. Orizu's abdication. Was the coup a revolution overthrowing the 1963 Constitution with the result that General Yakubu Gowon's successor military government could rule outside constitutional restraints? Chief FRA Williams argued that it was not a revolution but a constitutional abdication under the implied Doctrine of Necessity. The Court (with Sir Udo Udoma JSC on the panel) agreed with Kelsen's theory but held that the abdication was limited to saving Nigeria from immediate crisis and so Gowon could not forcefully deprive the appellants of their property by ad hominem decrees contrary to the 1963 Constitution.

Although General Gowon soon 'annulled' the Judgment with his Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, some restraint was observed during successive military regimes as there were no wide scale withdrawal of fundamental rights by force of decrees, apart from isolated practical excesses. However the 'effectiveness' of the Decree, the peculiar provisions of which formed the 'grundnorm' of all subsequent military governments till 1999, confirmed that the 1966 event was a legal revolution that effectively annihilated the 1963 Constitution.

In 1993, General Sani Abacha tagged his military government 'a child of necessity'. He claimed to have been 'appointed' Head of State 'consequent upon the resignation of Chief Ernest Shonekan'. Shonekan was the Head of the controversial Interim National Government overthrown by Abacha.

So was the Senate resolution a 'revolution' justified by necessity? In trying to raise more questions than answers to Prof Kelsen's winding postulations on 'basic norm', 'revolutions' and 'effectiveness', Prof Dennis Lloyd had quoted Kelsen as submitting that 'we arrive, instead, at a constitution that became valid in a revolutionary way, that is, either by breach of a former constitution, or for a territory that formerly was not the sphere of validity of a constitution and of a national legal order based on it'. Section 145 of the 1999 Constitution was clearly overthrown in making Jonathan Acting President.

By 9th February, 2010, Nigeria was undeniably in dire political straits, hanging on tenterhooks. The Constitution did not contemplate that President Yar'Adua would be unable to transmit a written declaration. Of course his inability is an assumption since his alleged signing of the Appropriation Bill and quite lively statement on BBC (if they are both genuine) suggests that the non-transmission of the declaration may be based on political considerations. But we must assume Mr. President's good intentions.

Mr. President's inability to transmit a written declaration created a vacuum in national political leadership. There was no viable constitutional provision out of the logjam. The procedure under Section 144 under which his ministers could have acted was politically unrealistic. The impeachment of an ailing president appears inhuman. The intervention of the National Assembly which was by and large well received by majority of Nigerians is, subject to contrary judicial decision, justifiable under the Doctrine of Necessity. The Judiciary was unable to resolve the impasse.

When the Federal High Court had the opportunity, it threw it back to a political class already at its wit's end. David Mark's 'revolutionary' resolution has moved Nigeria forward from a mark-time position. After 80 days of cabal rule, constitutional democracy was restored. The validity of the political solution appears a political question, which the Judiciary may either justify under Necessity or better avoid altogether. 'That which is otherwise not lawful is made lawful by necessity' and the survival of the Commonwealth is the supreme law.

Ogham-Emeka, Head of Litigation in Olisa Agbakoba & Associates, writes from Lagos