On Yar’adua’s Incapacitation, the Constitution, and a dream

It was Sunday night on November 22, 2009. I went to bed and had what you may call an open vision or a dream. Nigeria's president at the time, Mr. Umar Yar'Adua had died. I saw that Dr. Goodluck Jonathan, the Vice-President assumed the position of President of the Federal Republic of Nigeria. There was uneasiness, particularly in the northern part of Nigeria. In this dream, Dr. Goodluck declined the request by the North not to contest the presidential elections in 2011. Then, the unease turned to something inexplicably dastardly.

On Monday November 23, 2009, I shared this night-time experience with my wife, some colleagues, and my students. We could not figure out clearly what it meant. Later in the week, I saw in the news that President Yar'Adua was flown out of the country in a medical emergency. I could not help recalling the night-time experience I had had. Could the president return on his feet or in a cradle? I do not claim to be a prophet; I have seen things about my nation, other people, or self since I was a child. There are times when I forget about what I saw until an event happened to jolt it back into mind.

In spite of the policy of secrecy imposed on the medical condition of our president, the frequency of President Yar'Adua's medical pilgrimage abroad has made it increasingly difficult to sustain it. Thus, on Thursday November 26, 2009, Mr. Segun Adeniyi, Special Adviser to the president on Media and Communication, read a brief note from President Yar'Adua's personal Physician, announcing that Mr. Yar'Adua was suffering from “Acute Pericarditis”. I was appalled that no journalist present grilled Mr. Adeniyi on this announcement. No journalist asked him to explain the meaning of that technical expression and what implications the sickness had on Mr. Yar'Adua's ability to perform the functions of his office. No journalist asked Mr. Adeniyi how soon the president would resume the duties for which his employers are paying him. No journalist asked if the president duly handed over power to his deputy so that the business of state would not grind to a halt. No one raised any constitutional questions.

If we have any hopes of building a great nation, then we must begin to practically respect laws and rules and not simply make preposterous professions about “rule of law.” Section 144 (1) of Nigeria's constitution states:

The President or Vice-President shall cease to hold office, if—

(a) by a resolution passed by two-third majority of all members of the executive council of the Federation it is declared that the President or Vice-President is incapable of performing 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 Senate and the Speaker of the House of Representatives.

Subsection (4) states that: The medical panel to which this section relates shall be appointed by the President of the Senate, and shall comprise five medical practitioners in Nigeria—

(a) one of whom shall be a personal physician of the holder of the office concerned; and

(b) four other medical practitioners who have in the opinion of the President of the Senate, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions.

Subsection (2) provides as follows:Where the medical panel certifies in the report that in its opinion the President or Vice-President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice thereof signed by the President of the Senate and Speaker of the House of Representatives shall be published in the Official Gazette of the Government of the Federation.

Subsection (3) states:
The President or Vice-President shall cease to hold office as from the date of publication of the notice of the medical report pursuant to subsection (2) of this section.

We can see that the constitution is very clear about processes and procedures in the event of perennial sickness of holder of the office of President (as is presently the case with Mr. Yar'Adua) or Vice-President of the Federal Republic of Nigeria. Unfortunately (?), the constitution imposes on the executive council of the Federation (Ministers, as described in section 144 (5)) to initiate the process. Those Ministers are employees of the President; and the removal of the President is certainly theirs too. How could the constitution envisage that two-third of all Ministers could be so altruistic, putting the interest of the nation above their pay jobs, to pass a resolution that would lead to the removal of the President in the circumstances? Well, when a nation advances along the curve of growth and development it also does produce great people who are given to what is right even though it be neither convenient nor politic.

It is onto Ministers of the Federation that Nigerians should look to do the right thing. It is on the Ministers of the Federation that Nigerians should pile pressure to pass the necessary resolution. But would they? I doubt so. Will the nation continue to suffer the consequences of this neglect by people such as Dora Akunyili, Michael Aondoakaa, Sam Egwu, etc? Certainly, yes! The national assembly cannot pass such resolution that would have any effect. The nation is held hostage by the greed of Dora Akunyili and her colleagues. Let the business of state grind to a halt provided they keep their jobs! Even if President Yar'Adua should continue on life support for the next one year, the Executive council of the Federation will not pass such a resolution. Can we conclude that Nigeria can do without a capable president? Can budget implementation happen properly without a capable president to properly and effectively supervise and sanction his ministers? Can the Vice-President properly sanction an incompetent Minister without proper hand-over (which President Yar'Adua reportedly, did not do before he was flown out of Nigeria)? Is this not anarchy?

I would not naturally wish a man dead. I also love my country above an individual whose actions or inactions make my nation suffer, people die daily of preventable causes, and my nation to be despised and derided abroad. With the reports in the papers, it becomes apparent that some people want to create a situation that would fit into section 146 (2) when both the holders of President and Vice-President would be absent, thus forcing a presidential election, simply because power must reside in a particular region for now.

There is no evidence that President Yar'Adua transmitted to the President of Senate and Speaker of the House of Representatives that he was going to be away for an undisclosed period of time and so unable to discharge his duties (which transmission is required by section 145 for the Vice-President to enter upon his full responsibilities as the Acting President). According to section 145, “until he (The President) transmits to them (President of the Senate and Speaker of the House of Representatives) a written declaration to the contrary such functions (presidential) shall be discharged by the Vice-President as Acting President.”

What the President of the Senate and the Speaker of the House of Representatives can do in the absence of a resolution passed by two-third majority of all members of the executive council of the Federation is to demand for such transmission on behalf of the people of Nigeria, since vacuum in leadership cannot be permitted, lest it breeds an unconstitutional take-over of government. As things are today, a veritable excuse for forceful take-over of government has been set. Adventurous fellows can stage a revolutionary take-over of government, claiming that there is an unconstitutional vacuum.

Thus, section 145 is a cure of a perceived dereliction of duty (described in section 144 (1) (a)) by the executive council of the Federation. Let me state fully section 145:

Whenever the President transmits to the President of the Senate and 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.

Permit me to state unequivocally that Vice-President Goodluck Jonathan cannot pretend to discharge the functions of President as Acting President except and until the transmission referred to in section 145 has been made and personally signed by President Yar'Adua. If there is no such written transmission, as I have no reasonable cause to believe there is Nigeria does not have either a President or Acting President. The Vice-President can only assume the functions of an Acting President according to section 145 or of a President according to section 146 in the absence of the President by reason of death or resignation, impeachment, permanent incapacitation (in accordance to section 144) or removal from office for any other reason in accordance to sections 143 and 144.

The word “whenever” implies an expected course of action. It is not optional for the President to send a written declaration about his absence; it is a constitutional requirement because the constitution does not permit a vacuum in leadership. If President Yar'Adua has failed, neglected, or ignored to send a written declaration that he is unable to discharge his duties as president before he was flown out, that would be a breach of the constitution which the national assembly would do well to look into. On Thursday, November 26th, it was reported in the news and shown on government-owned television—the NTA, a presidential spokesman, one Mr. Segun Adeniyi, who read a note signed by the personal Physician of President Yar;Adua, Dr.Barau Banye, that President Yar'Adua was suffering from “Acute Pericarditis.” This condition is known medically to make someone unable to discharge their normal duties as an employee in an organization, not to talk of duties of President of the Federal Republic of Nigeria. Besides, the return date of the President to his duty post is unknown. He is not even physically on Nigerian soil, but in a foreign country. How can Nigeria be governed from abroad? Right at this moment, the Federal Republic of Nigeria is without a President and an Acting President! If a group of revolutionaries should strike, the blame should be laid at the door steps of the national assembly and the Ministers of the federation. No concerned revolutionaries would permit a preventable vacuum to the detriment of their nation.

As I conclude, I must, as a constitutional duty, state as follows: 1. Vice-President Goodluck Jonathan should and must not yield to whatever pressure to resign his office.2. The north had better negotiate with Dr. Jonathan respectfully. Any arm-twisting is an exercise in vain.3. Should President Yar'Adua be declared officially to be dead, Vice-President Jonathan shall assume the constitutional role of President of the Republic. If my advice in (2) is not heeded he may nominate a weakling from the North as Vice-President (see section 146), who will pose no dangers in 2011.4. If Vice-President Jonathan is being underrated by some, I should advise against this. You may not tell what a President can do with power. Mark this; Nigeria is not the north; neither does the north hold the sole right to either violence or psychological scare. I speak as a northerner from Benue state.5. Should Vice-President Goodluck become president in the event of resignation or official death of President Yar'Adua, I see nothing in the constitution of the Federal Republic of Nigeria which prevents him to contest in the 2011 presidential election. This is where I saw on November 22 that he opted to run.6. The North had the chance in 2008 to allow the waters of justice to run freely at the Supreme Court. But, rather, they built a dam of four justices across the river.7. If any group or individual from the north or south makes the mistake of taking Dr. Jonathan out, it would be an incalculable error, whose consequences can only be imagined. The swirl of discontent only awaits a crack to break loose.

Leonard Karshima Shilgba is the President of the Nigeria Rally Movement (www.nigeriarally.org ) and Assistant Professor of Mathematics with the American University of Nigeria. Email: [email protected]