By NBF News

Push for constitution alteration and the division within

From AMOS DUNIA, Abuja
Thursday, March 04, 2010



The lee way provided by Section 145 of the 1999 Constitution of the came to the fore with the failing health of President Umaru Musa Yar'Adua who had to hurriedly left the country, thereby leaving the schedules of his office unattended to for over two months, before the National Assembly applied the doctrine of necessity in addressing the matter of who to stand in for him.

The legal arguments which created the political logjam in the scheme of things in the country occasioned by the absence of President Yar'Adua became cancerous owing to the attacks and counter-attacks on the issues.

According to the legal practitioners, the word 'Whenever' is very elastic thus subject to different interpretations and it provided Nigerians the opportunity to not only ventilate but vitiate their feelings in accordance with their understanding and political dictum.

Section 145 (1) of the Constitution states that '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'.

Taking a critical look at the content, the drafters of the Constitution may have assumed that a sitting President would be concerned about the smooth running of the State thus would be cautious enough not to allow the ship of State to sink.

Unfortunately that was not the case, and given the agitation by Nigerians of different groups committed to the sustenance of democracy, the Senate and later the House of Representatives had no choice but to address the genuine concerns of the people in line with the vacuum that was created in the governance of the nation.

The leadership of the Senate which initially did consider the matter as very serious did not want to allow for discussion the health of the President when it resumed from its Christmas and New Year vacation on January 12th, as it felt that one of the best ways to address the matter was to pray for the President's quick recovery and invite the Secretary to the Government of the Federation (SGF) to brief it on his health situation.

It was the briefing by the SGF, Alhaji Yayale Ahmed that brought to bear the necessity for an amendment of some sections of the Constitution particularly against the backdrop of information volunteered by Ahmed to the effect that there was a letter duly signed by President Yar'Adua intimating the National Assembly that he was proceeding on medical vacation abroad.

Yayale who was reported to have told the Senators at a closed door meeting that he personally drafted the letter in accordance with Section 145 of the Constitution which was later vetted by the former Attorney general of the Federation and Minister of Justice, Chief Michael Andoakaa, (SAN) expressed surprise on why the letter did not get to its destination, the National Assembly.

Ahmed's position was, however, countered by the Special Adviser to the President on National Assembly Matters, Senator Mohammed Abba-Aji, who said that there was no such letter except the one written in January 2009 when the President intended going on annual vacation but had to suspend it owing to the death of the late Governor of Yobe State, Senator Mamman Ali who passed on the same day the President was to begin his vacation.

It was this ding-dong affair by members of the Executive arm of government that led to fresh agitation by some Senators particularly members of the National Interest Group (NIG) for an urgent amendment to the provisions of Section 145 of the Constitution to address the logjam in which the Constitution failed to address.

In its appreciation of the provisions of the Constitution, the Senate at one of its sittings noted that Sections 144 and 145 of the 1999 Constitution has tied its hands in taking a decision, saying that while the spirit of the letters in Section 144 vested the power to determine the health status of the President on members of the Federal Executive Council (FEC) and not the National Assembly, Section 145 with the clause 'While' has made it discretional for the President to transmit the letter when he so desires.

It was this understanding that jolted members of the upper chamber in addition to the pressures mounted on them by members of the society that included eminent persons group made up of former Heads of State, ex-Chief Justices of the Federation, civil society organizations and other stakeholders who insisted on bridging the vacuum created by the absence of President Yar'Adua.

In arriving at the decision to alter the provisions of the Constitution to address the issue of the absence of a serving President, the Senate was of the belief that the nation should at all times be more important than an individual or group.

Proponents for the alteration of Sections 145 led by the Deputy President of the Senate Ike Ekweremadu argued that while it can be permitted that the drafters of the Constitution did not take certain issues into consideration by inserting the phrase, 'Whenever' as provided in Section 145(1) of the Constitution, it is however unaccepted when some people within the corridors of power deliberately take advantage of loopholes to abuse the process and the law.

According to Senator Smart Adeyemi who is the Secretary of the National Interest Group (NIG) in the Senate, the phrase 'Whenever' can also be understood to mean that at any time the President is leaving his seat owing to incapacitation or otherwise which can either be on a temporary basis, he is expected to transmit a written letter to the National Assembly.

Taking a cue from that point, it can be further argued that the drafters of the Constitution may have assumed that every President will be honest enough to always transmit in writing to the President of the Senate and Speaker of the House of Representatives once he feels that he would no longer be able to continue to perform the functions of his office as was the case with President Yar'Adua. Unfortunately, events turned out differently.

When the bill was introduced and debated on the floor of the Senate, it was clear based on the preponderance of views, that there was a consensus of opinion by majority of the Senators to have the Section 145 altered. They even wanted to go a step further to equally get section 144 amended to transfer the power to determine the health status of the President from members of the Federal Executive Council to National Assembly.

The move by the Senate to equally alter Section 144 was, however, punctured by the House of Representatives whose leadership and majority of its members are believed to be die hard supporters of President Umaru Musa Yar'Adua as the lower chambers not only reject the amendment of the encumbered section but threw it out.

The moment the Dimeji Bankole Led House of Representatives threw away the Bill for the alteration of section 144, the Senate had to stop further consideration on it, as doing so would have amounted to an exercise in futility.

Information pieced together at the House of Representatives indicated that the members were made to believe that should they consent to the alteration of Section 144 transferring the powers of the Federal Executive Council(FEC) to determine the health status of the President to the Senate, the Yar'Adua presidency can be said to be over just as their interest for 2011 may be jeopardised.

The Senate therefore beat a tactical withdrawal over Section 144 but went and mobilised fully for the amendment of Section 145 for the President and Section 190 for Governors by ensuring that not only would it make the required 73 that make up its two-third of 109 Senators but exceeded the number except for Senator Garba Lado who is believed to be eyeing the governorship seat of Katsina in 2010 where the President comes from.

To show its renewed determination to get the amendment scale through the same day, the Senate had to suspend its Standing Rule 81(1) which states; 'When a Bill has been read the second time, it shall stand committed to the standing committee, unless the Senate or motion made commit it to the committee of the whole Senate. Such motion shall not require notice but must be made immediately after the bill is read a second time and must be proposed by the Leader of the Senate. Bills committed to Standing Committees shall be allocated to a particular Committee by the President of the Senate whose discretion in this matter is final'.

The suspension of the Order 81 of the Senate standing rules therefore provided the opportunity for the third reading of the bill to signal the passage of the Constitution amendment for the first time since the advent of the fourth Republic in 1999.

Accordingly, 'The bill for an 'Act to Alter the Provisions of Sections 145 and 190 of the Constitution of the Federal Republic of Nigeria 1999 and for other matters connected thereto, 2010' was passed.

The bill in specific terms aims to add a proviso to Sections 145 and 190 that would empower the Vice-President and Deputy Governors to take over the functions of the President and Governors respectively after seven days in the absence of a transmitted letter of a vacation by the substantive President or Governor.

It further aims to amend section 145(1) (2) of the 1999 Constitution to now read as follows: 'In the event that the President is unable or fails to transmit the written declaration mentioned in sub-section 1 of this section within 14 days, the National Assembly shall by a resolution made by a simple majority of the vote of each House of the National Assembly mandate the Vice-President to perform the functions of the office of the President, as Acting President, until the President transmits a letter to President of the Senate and Speaker of the House of Representatives, that he is now available to resume his functions as President.'