Finally Nigerian National Assembly Acts But Is This Constitutional?
Written by Paul I. Adujie
New York, United States
That was the word I yelled out, upon learning that the National Assembly of Nigeria had voted to authorize our vice president to assume presidential duties, in an acting capacity, until further notice and until the true condition and fate of our substantive president, President Umaru Musa YarAdua is determined.
BUT, this is not what the constitution provides! This is certainly meets the demands of expediency and our national exigent circumstances, it might serve as sedge way out of this prolong political and constitutional crises
However, it must, for the avoidance of doubt and for the record, it must be stated and restated that the Constitution of Nigeria does provide for, and in particular, section 145 does require a sitting president to transmit a letter to the president of the senate, which is in turn considered by the National Assembly of Nigeria, the Senate and the House of Representatives, the upper and lower chambers of our national legislature that is.
The current action of the National Assembly is obviously, and understandably so, an attempt to douse the tensions which have be brought upon and wrought upon Nigeria, by the neglect and refusal by President Umaru Musa YarAdua to simply comply with the constitution of Nigeria. President YarAdua’s departure from presidential duties, in violation of provisions of the constitution of Nigeria, created a power void and power vacuum. President YarAdua prevented a constitutionally stipulated power devolution, which should have been uneventful and seamlessly carried out.
The Senate President, Senator David Mark, in announcing the action of the National Assembly, predicated the vote to install Vice President Goodluck Jonathan as an acting president, on a BBC Radio Broadcast by President YarAdua, a broadcast which was made by President YarAdua in response to clamor by Nigerians for him to transmit the constitutionally mandated letter in compliance with section 145 of the constitution of Nigeria. Our constitution is quite unambiguous on the issues at stake.
Senator David Mark was quoted as saying that, "The BBC interview granted by the president is as good as the letter envisaged in the constitution because if you go onto the Internet, you will see a copy of what he said," It take the view that a radio broadcast is not similar or identical to a letter as specifically and clearly directed by section 145 of the constitution of Nigeria. I take a very dim view that this BBC Radio broadcast which was referred and alluded to by Senator David Mark, is not sufficient and therefore, it is no substitute to the specific exactitude spelled out in definite language in our constitution. Besides, the National Assembly may be setting an unprecedented precedent for our nation.
Deeming the BBC Radio broadcast as a substitute or amalgam of message and news, and therefore construed as if, the president actually sent a “message” had complied with the constitution, is really a stretch, as it amounts to an extraordinary interpretation of section 145 of the constitution of Nigeria, without an amendment to the current provision of 145.
The constitution of Nigeria, mandates, stipulates, provides and contemplates that the president will cease from presidential duties, only under these numbered circumstances which follows:
1. A letter which shall, be properly transmitted from the president regarding his or her absence from presidential duties, upon which the National Assembly shall trigger the assumption of office by the vice president as the acting president, until the substantive president returns to president duties and or, other determinations are made in connection with the continuing capacity and fitness of the substantive president.
2. The constitution also provides that a Nigerian president might cease to be president through his or her voluntary resignation and departure from presidential duties and presidency.
3. The president of Nigeria, may also be removed from presidential duties and from office or the presidency through impeachment on grounds of gross misconduct. And I have recently argued publicly that President YarAdua’s neglect and refusal to transmit the letter as required by section 145 of the constitution of Nigeria, amounted to an egregious violations of the constitution and therefore, the National Assembly, can and should consider such egregious violations as amounting to Gross Misconduct, and therefore an Impeachable Offense.
In the absence of such of proper and effective compliance with section 145 of the constitution of Nigeria, which requires a president to transmit a letter, as opposed to a BBC broadcast or some other substitute “suitable or unsuitable” substitutes, it is doubtful, whether it is constitutional for the National Assembly to act on it own, to interpret section 145 as contemplating an indeterminate voice on a radio broadcast, BBC or not, as the voice of President YarAdua. First, this is not what is mandated by our constitution, and secondly, the BBC broadcast in question was never authenticated. Whose voice was on BBC? Who determined that voice to be the true, accurate and exact voice of Mr. YarAdua? It must be recalled that this BBC Interview was widely reported worldwide as :
A Man Claiming To Be President YarAdua Speaks On BBC
The constitution of Nigeria also provides and contemplates, a departure from the presidency by the occupant of that high office, through voluntary resignation by the substantive president of Nigeria. And here again, the current situation or circumstances are not identical or similar to the specificity of the constitution of Nigeria, regarding voluntary departure and vacation from the presidency, by the occupant of that high office. President Umaru Musa YarAdua, has for 78 days, neglected, refused to transmit a letter stating or declaring his absence from presidential duties. President YarAdua has therefore demonstrated an unwillingness to voluntarily relinquish, even temporarily, the presidency to the vice president as an acting president. President YarAdua has demonstrated intransigence and recalcitrance and impervious to public demands that he temporarily cede power to the vice president, it is therefore, quite clear or at minimum, doubtful, that he would have resigned, and he has not! This means then, that the resignation contemplated in the constitution of Nigeria, has not taken place.
Thirdly, there is the matter of impeachment. The National Assembly has not empanelled a committee to consider a set of gross misconducts and determine such misconduct as impeachable offenses and therefore proceed to impeach President YarAdua and properly remove his from office upon which he will cease to be the current President of Nigeria, and again, what has transpired in Nigeria as announced by the National Assembly, has not complied with section 143 of the constitution of Nigeria which stipulates clearly, the plethora of grounds, procedures and methods for a thorough and proper impeachment of a sitting president of Nigeria.
What the National Assembly has done takes care of the exigent circumstances... but, it is not provided for by our constitution! The action by the National Assembly is could have come much earlier, but, it is good that it finally did come. It may be a sedge way, to forestall and to act as a stop-gap measure, perhaps an ad hoc measure, until a constitutional action is undertaken, either by the president transmitting the vexed letter through the National Assembly and PDP members and a presidential Aide, scheduled to visit with President YarAdua in Saudi Arabia shortly, or that President YarAdua voluntarily resigns as President of Nigeria or that the National Assembly, finally live up to their constitutional responsibilities by impeaching President Umaru Musa YarAdua!
The National Assembly will remain in the eye of the storm. The National Assembly should perform a national duty, by taking the tiger by its tail, insist that the president transmit the letter as specified, stipulated and mandated by section 145 of the Constitution of Nigeria, or procure a resignation from the president as haven resigned voluntarily, based on physical-mental incapacitation or, sua sponte, the National Assembly should on its on accord, impeach President YarAdua and remove him from office as president of Nigeria.
Any actions and or pronouncements short of complying with the exampled and examined constitutional sections and provisions above, will amount to expedient actions or pronouncements and therefore, no adherence to the constitution of Nigeria
Nigeria is a nation of laws, democracy require the enthronement of constitutional due process and the rule of law, procedural and substantive constitutional processes, we insist.