Nigeria: Court orders vice president to exercise presidential powers

January 17th, 2010

 

 

Abuja (Nigeria) — Vice-President Goodluck Jonathan got the legal backing yesterday to exercise presidential powers. A Federal High Court sitting in Abuja ruled that the Vice-President should start exercising the powers of President Umaru Musa Yar'Adua who has been in a Saudi Arabian hospital since November 23, 2009.

But the court said Jonathan could not be acting President since President Yar'Adua did not submit any letter to the National Assembly informing the legislative body that his deputy should begin to exercise his duties pending his return from Saudi Arabia.

The President is suffering from acute pericaditis (inflammation of the membrane around the heart). Before leaving the country, he did not transmit a letter to the National Assembly which would have enabled Jonathan to step in as acting president.

This has drawn the ire of opposition forces in the country some of whom organised a protest rally in Abuja two days ago. President Yar'Adua, however, gave a rare interview with the British Broadcasting Corporation (BBC) aired early last Tuesday where he said he was getting better and would return home when his doctors discharge him.

In a ruling that will empower Jonathan, the Chief Judge of the Federal High Court, Justice Daniel Abutu, said since the Vice-President had been performing the functions of President, he should continue doing so.

Justice Abutu, however, said the Vice-President could not become Acting President but could only carry out the functions of the President in his absence, "which he has been doing and should continue to do so as enshrined in Section 5 (1) of the 1999 Constitution".

The court also noted that the Attorney-General of the Federation (AGF) did not argue the issue of locus, which was raised in his defendants' written address in response to the plaintiff's originating summons dated the 7th day of January, 2010.

The court held that "the issue of locus has been abandoned even as it cited the case of Asari Versus Federal Republic of Nigeria and Attorney-General of Anambra State Versus Okeke to support his position."

Justice Abutu emphasised that even before the suit, the Vice-President had been carrying out the duties of the President as allowed by the 1999 Constitution in Section 5 (1).

In the suit number: FHC/ABJ/CS/2010 filed via an originating summons, the plaintiff, one Mr. Christopher Onwuekwe, is asking the court to declare that in the absence of the President following his ill-health and in view of Sections 5 (1) and 148 (1) of the 1999 Constitution, the Vice-President can exercise the powers vested in the President.

The suit, which has a 13-paragraph affidavit sworn to by the plaintiff himself, noted that the "President Yar'Adua has travelled to Saudi Arabia since the 23rd day of November, 2009 for medical treatment and has not returned since then."

Against this backdrop, the plaintiff through his lawyer, Mr. Amobi Nzelu, specifically asked the court for the following reliefs:

"A declaration that by the combined provisions of Sections 5 (1) and 148 (1) of the Constitution of the Federal Republic of Nigeria 1999, the Vice-President can exercise the powers vested in the President in the absence of the President having regard to the circumstances of this suit.

"A declaration that the Vice-President can lawfully discharge any or all the functions of the President in the absence of the President in the interest of peace, order and good governance of the federation pending when the President resumes and takes over".

The plaintiff stated that the present scenario is an indication that there is no head of government and such a situation "has led to major crisis capable of threatening the corporate existence and stability of the Federal Republic of Nigeria".

Following this, the plaintiff stated that the Vice-President has failed to exercise any or all the executive powers vested in the President since Yar'Adua's absence.

Listed as defendants in the suit are the Attorney-General of the Federation Michael Aondoakaa and the Federal Executive Council (FEC).

Counsel to the plaintiff, Amobi Nzelu, had said that in the present circumstances where the President had not written any letter to the Senate and the House of representatives, informing them that his deputy should oversee the affairs of the state pending his return, a convenient way out of the woods would be for the court to make an order empowering Jonathan to exercise the powers of Yar'Adua pending his return to office.

In his defendants' written address in response to the plaintiff's originating summons dated the 7th day of January, 2010, Aondoakaa said it was mischievous for the plaintiff to claim that President Yar'Adua is temporarily incapable of performing the functions of his office since according to him, the plaintiff lacks the constitutional capacity and competence to do so.

According to him, "We submit that the only body which may pronounce on the capacity of the President to discharge his functions is the federal executive council as set up in section 144 of the 1999 constitution of the Federal Republic of Nigeria".

Similarly, the AGF told the court that "plaintiff's affidavit discloses no specific allegation or any infringement or anticipated infringement on his right or a personal injury emanating from the defendant's action."

Responding to the ruling last night, the AGF said there was no reason to appeal the ruling in the interest of the country.

He said the verdict had resolved all hanging issues as to whether the president transmits a letter to the National Assembly or not.

Aondoakaa said with the judgment, no other person could question the Vice-President when he performs the functions of the President except the President himself and that with the ruling, Jonathan could continue to discharge such functions legally.

He said with this, the Vice-President could sign any bill or any papers, which the President could sign.

Aondoakaa appeared in person in court yesterday and led other lawyers in his ministry including the Director of Civil Litigation in his office, Mrs. Agatha Mbamali, who handled the matter for the ministry last Monday.

The ruling Peoples Democratic Party (PDP) has said the Vice-President is good enough to perform the functions of President Yar'Adua, as he has performed the duties of the President satisfactorily.

PDP, however, said it was still waiting for details of the ruling.

The party said it would challenge the order if it circumvents the 1999 constitution.

Addressing his first major press conference yesterday in Abuja, PDP National Chairman Vincent Ogbulafor explained that President Yar'Adua could not hand over to the Vice-President because the President did not know that he would stay this long in his quest for medical treatment.

Ogbulafor said: "The Vice President has proved that he is good enough to act for the President that is why he was chosen in the first place. There is no gap, the Federal Executive Council has been in session since then, indeed there is no gap, and there is no vacuum."

He also said that he had spoken to the President since he left Nigeria for medical treatment in Saudi Arabia. The party also reacted to the order of the Federal High Court that the Vice-President should commence the exercise of the functions of President Yar'Adua.

PDP National Legal Adviser Olusola Oke, who spoke on behalf of the party, said PDP would appeal the order of the court, if it circumvents the 1999 constitution. The PDP National legal Adviser described the "the judgment is a welcome development in our democracy, but we are yet to see the judgment.

"As far as PDP is concerned, if the judgement is against the constitution, PDP will challenge the judgment, but as I said, we as a political party are still waiting for the full details of the judgment.

"The Attorney General of the Federation is in charge, but he is yet to brief the party. The judiciary is independent of the party. The circumstance of the Vice-President acting is very clear in the constitution."

Ogbulafor, who also accused the organisers of the Tuesday anti-Yar'Adua rally led by Prof. Wole Soyinka of subversive plans, called on Nigerians to be "extra vigilant in the face of the onerous challenges that the emerging national circumstances have imposed on us".

He said: "We are indeed alarmed at the level of desperation manifested by some people in their desire to truncate the nation's democracy. We are at a loss as to why some people for whatever reason would want to contrive an atmosphere of instability and confusion when what is required is a sober reflection and a firm commitment to the national cause.

"It is in the light of this that we find yesterday's (Tuesday) road show by some politicians and some members of the civil society unnecessary, shameful, and completely out of tune with the national mood. It is clearly an insensitive display of lack of respect for our institutions, our leaders and a debasement of our common humanity.

"The President's interview on the BBC yesterday (Tuesday) has finally put the lie to the malicious, baseless and devious rumours orchestrated by those who do not wish Nigeria well."

Meanwhile, the President of Newspaper Proprietors Association of Nigeria (NPAN), Chief Ajibola Ogunsola, has condemned the failure of the President to inform the National Assembly of his prolonged absence from the country.

He said in a statement issued yesterday: "The charade, deception, collusion and outright fraud that we have been witnessing in the three realms of the federal government over the unconstitutional refusal of President Yar' Adua to observe the provisions ofthe constitution by writing to the National Assembly to enable Vice President Jonathan Goodluck act as President while he is away in Saudi Arabia for medical rescue should open the eyes of all Nigerians to the need for the Freedom of Access to Information Act.

It is also a potent evidence that the Act will not be for the benefit of journalists and the press alone, but for all Nigerians. It further demonstrates, perhaps, why the present National Assembly has been unwilling to pass such Act."

He condemned the House of Representatives for its plan to send a delegation to Saudi Arabia "on a jamboree to pay a get-well visit to the President and discuss some matters of urgent importance with him".

source.This Day (Nigeria) - January 14, 2010.