MID-WEEK ESSAY BY MOBOLAJI E.
ALUKO, PH.D.
In Defence of the
Vice-President, in the Failure of the President Doing the Right Thing
Burtonsville, MD, USA
December 31, 2009
INTRODUCTION
In the present
no-see-no-hear-invalid-President-UMYA crisis in Nigeria, some blame
for alleged timidity has been put on Vice-President Goodluck Jonathan
[for example, see Sylvester Udemezue (Esq.), in "When the Vice
President can act during President’s absence", The Sun, December 30,
2009]. I believe that such criticism is unfair, and
that he has been acting very prudently and constitutionally as his
office requires.
In the absence of the invocation of
Section 145 of the 1999 Constitution, there is no "Acting President"
in Nigeria, and the Vice-President cannot and should not pretend to be
one, EXCEPT under the Doctrine of Necessity - and he better be sure of
that before he acts. The difference between an "Acting President" and
a "Vice-President" is really that there is NOTHING the Acting
President CANNOT/SHOULD NOT do under the powers given to the
substantive President, while there is NOTHING the substantive
President CAN/SHOULD do (short of writing a letter to ask for his
powers back) while the Vice-President is "Acting President."
In short, there CANNOT be two persons
"acting", directing the affairs of state, as President at the same
time.
On the other hand, a Vice-President can
ONLY do those things that are:
(1) STATUTORILY assigned to him in the
Constitution (ie Deputy-Chairman of Council of State, National Defence
Council, and National Security Council, and Chairman of National
Economic Council)
(2) specifically assigned to him by the
President;
(3) TRADITIONALLY/OCCASSIONALLY done by
the Vice-President in the past in the normal course of the presence OR
absence of the President if, under some unusual circumstance, the
President was UNABLE to specifically assign certain duties to him;
(4) under the Doctrine of Necessity.
There is no argument about the first two
situations. In the third case, the Vice-President MAY or MAY NOT
choose to do those acts without specific designation by the President
EVEN if he has done them before. He may then be accused of cowardice
or dereliction of duty, but cowardice is not unconstitutional, and the
dereliction of duty charge, while political, would probably not stand
legal muster.
The fourth case is the dicey one, for
this can be done either under legal advice from a designated officer (eg
the Attorney-General) and/or an assurance of acceptance by those who
he must direct to obey him.
CASES IN POINT
Some three germane examples will
suffice, all based on the premise that the substantive President is
INCAPABLE of carrying out his normal function in each of the examples
for whatever reason(s), and that the Vice-President, not
being designated as "Acting President", has to make a determination
whether to act or not.
Take the issue of chairing the Federal
Executive Council's regularly-scheduled bi-weekly meetings. The
Vice-President is not constitutionally charged to do so, but even a
healthy president has designated the VP a number of times to chair the
FEC. So even if for whatever reason, he is not specifically mandated
to chair a particular or set of FEC meetings, he acts within the
reasonable expectation of his office as Vice-President to chair the
meetings in the forced absence of the President. It will be hard to
sustain a charge that decisions from that meeting are illegal.
Consequently, I believe that the
Vice-President has been acting properly and wisely and legally in
chairing the FEC meetings.
Another example is the swearing in of
the Chief Justice of Nigeria. Since the President nominates the CJN,
and he was confirmed by the Senate, it would appear trite that the
Vice-President, already knowing the sentiment of the President, should
be able to swear in the CJN if the President were the ONLY person
permitted to swear the CJN in. In this case, however, the Oaths Act
[see
http://www.nigeria-law.org/Oaths%20Act%201990.htm ] designates
either the President or the CJN (it can only be the CURRENT CJN) to
swear in the CJN (this can only be an INCOMING CJN). Now the VP is
not constitutionally mandated to do so, and he has NEVER been
specifically designated to do such an act before. In fact, the
language of the Second Schedule of the Oaths Act shows that the
President CANNOT authorize ANYBODY - not even the Vice-President - to
do this job of swearing in the CJN for him, since there is language in
this Second Schedule for certain positions requiring oath-taking that
specifies for the oath-tenderer to be "officers authorised by the
President" or "The President or a person authorised by him", a
flexibility that is MISSING when it comes to the swearing in of the
CJN. If the law had intended that flexibility, it would have
specifically mentioned it.
It therefore means in the absence of the
substantive President or "Acting President" , it is ONLY the present
CJN (or whoever is Acting CJN) - and no one else - who can swear in
the incoming CJN. The fact that no current CJN has sworn in
an incoming one before in Nigeria is not a basis for its illegality.
After similar situations have occurred without crisis in the United
States (for example, Warren Burgher swearing in William Rehnquist in
1986. In the United States, the president NEVER swears in the Chief
Justice; it is always an Associate Judge (as Acting CJN) or the
current CJN).
Now in order not to have two CJNs at the
same time, clearly the TENURE of the outgoing CJN should and must
AUTOMATICALLY cease the minute the incoming CJN completes his Judicial
Oath with the statement "So Help Me God". No constitutional crisis
need be generated thereafter concerning the co-existence of two CJNs.
In any case, if any legal furore is raised over the matter as to a
one-second, one-minute, one-day or thre-day co-existence of two CJNs,
by the time the matter winds its way through the courts, the matter
would be moot. In any case, what harm has been done? Furthermore,
since it is conceivable that the matter could end up in the same
Supreme Court, one wonders how or whether that court would rule in a
matter so intimately concerning itself in which no harm has really
been done.
The bottom-line here is that it is not a
battle worth fighting. The current CJN Kutigi has sworn in the
incoming CJN Katsina-Alu (on December 30), even if technically
(according to the tenacious Kutigi) there were two CJNs during a
12-hour period; the Vice-President wisely stayed out of it, and we
should let the matter rest.
The third example is the issue of
signing a Budget Bill - either a Supplementary Budget Bill one or a
substantive Annual Budget Bill. Again, the VP is not constitutionally
mandated to sign any bill, neither has he done it once before under
designation by the President. He is therefore left at the mercy of
the Doctrine of Necessity, which decision must have three components:
time, urgency and consequence of inaction.
Any Budget Bill covers a particular
period of time, with the Annual Bill being over a 12-month period, and
a Supplementary Bill over a shorter-period of that same 12-month
period. The urgency comes about with respect to whether the bill
should (or is traditionally) passed BEFORE the period in question,
early enough during the period in question - or has sometimes been the
case in Nigeria - way into the period in question, sometimes as late
as five or six months into the Annual Budget cycle. The consequence
of inaction might stem from the lack of a continuing expenditure
clause which permits expenditures (for example) at the same level of
the last budget UNTIL a new budget is passed.
What this means under the Doctrine of
Necessity is that a Vice-President might not/ should not RUSH to sign
a Budget bill if the TRADITIONAL or even one-time length of period
over which past budgets have been negotiated before signing it has not
been reached. Under the Doctrine of Necessity, therefore, it is
prudent to PUSH the time-limits of action, so that politically you are
not perceived to be power-hungry and too eager to usurp the powers of
the President. When that time trigger occurs, it is then most likely
that it will be at the urging of the official legal officers, and
those who must obey your acts without legal question will be much more
ready to do so.
In the particular case of Nigeria's
supplementary budget, I understand that its time limit has been
extended to March 31, 2010. I would advise that by end of January, if
the substantive President is still missing in action, the
Vice-President should sign it under the doctrine of necessity, whether
he has been designated Acting President or not. However he should not
sign the Annual Budget until April or May 2010 since Budget signings
have been delayed that long even in the presence of healthy
presidents.
WHY THE STRIFE?
It is unfortunate that our present PDP
government and its Presidency are acting at the edges of the law,
making reasonable people tear at each other all over the land, and
causing the dissipation of so much energy over trite processes. Not
all that is legal is always prudent. Forty-three days away
today from Nigeria under a serious medical condition, the President
should by now have invoked Section 145 to designate his VP as the
Acting President - as President Regan did in the United States in 1985
and Bush did in 2002 - so that all of this second-guessing (eg "Is it
because Jonathan Goodluck is a Niger-Deltan, that is why he has not
been appointed Acting President?") and rage ("Is this not more
evidence of Northern arrogance/hegemony/feudalism?") and
frustration ("See, no one to sign the Supplementary Budget, no one to
swear in the Chief Justice, etc.") in the land would not have been
necessary. That is the responsible thing to do. If he could not do
so BEFORE he left for Saudi Arabia - he reportedly suddenly took ill,
collapsed and had to be rushed abroad, and so his departure for
surgery, etc. was not pre-meditated - then certainly the same strength
that he mustered to sign the Supplementary Budget Bill two days
ago should have been used to sign a hand-over bill once-and-for-all.
SOME RECOMMENDATIONS
Finally, although it should not have
been necessary, it might require that for the future, a stipulation be
put in our Constitution MANDATING a president to hand over to the
Vice-President as "Acting President" if a medical procedure involving
surgery and/or sedation is elected; or that a Vice-President
automatically becomes Acting President whenever such a situation is
determined to be the case. Furthermore, since many of our bills have
a 30-day deadline, if a President is away from Nigerian soil for
whatever reason for more than twenty-one calendar days, an Acting
President must be mandated by law. We might also take a cue from the
similar circumstances which surrounded Israeli Prime-Minister Ariel
Sharon's own continuing incapacitation (see below), where we may also
wish to simplify our laws to avoid the FEC and National Assembly
determinations of "permanent" or even "temporary" incapitance by
allowing a technocratic Attorney-General (hopefully that position will
be separated from Minister of Justice) and a
technocratic Surgeon-General (not a Minister of Health) to do the
medical certification and recommendation for incapacitance.
And while on the matter of Chief
Justices, it is interesting to note that of our eleven indigenous CJNs
since 1958, seven have been under the Colonials and the Military, for
a total of 46 years out of 51 years and four CJNs under civilians in
5 years! That turn-over in CJNs under civilians is unhealthy, and
has been because of the practice of choosing the most senior associate
Justice willy-nilly as CJN, no matter how close he is to the retiring
age of 70 years. We may want to change our law or practice to require
that if you cannot serve as CJN for 5 years, you will not be
considered, even if you are the most senior Justice. If you choose to
retire, fine, but we will pay you CJN salary for the period you would
otherwise have been CJN! :-)
I rest my case.
Bolaji Aluko, Esquare
BIBLIOGRAPHY:
http://www.nigerianmuse.com/20091221093338zg/essays/the-yar-adua-presidency-saga-and-whether-the-nation-is-really-stuck-mobolaji-aluko-phd
The Yar'Adua Presidency Saga - and Whether the Nation is Really Stuck - Mobolaji Aluko, PhD (December 21, 2009)
___________________
APPENDIX I
QUOTE
Information on Ariel Sharon
Stroke of December 2005
On 18 December 2005 Sharon was sent to
Hadassah Medical Center after suffering a mild stroke, specifically a
relatively unusual type called a paradoxical embolism, in which a clot
from the venous circulation crosses over into the arterial circulation
through a hole between the right and left atrium called an atrial
septal defect (or a patent foramen ovale) and goes to the brain,
causing a transient speech and motor disturbance..............
Stroke of January 2006
On 4 January 2006, in the evening before
his catheterization, Sharon suffered a second, far more serious stroke
at his Sycamore Ranch in the Negev region. A "massive cerebral
haemorrhage" led to bleeding in his brain which doctors eventually
brought under control the following morning after performing two
separate operations. After the first operation, lasting seven hours,
Hadassah Director Shlomo Mor-Yosef reported Sharon's bleeding had
stopped and his brain was functioning without artificial support.[32]
After a second, 14-hour surgery, Sharon was placed on a ventilator and
some reports suggested that he was suffering from paralysis in his
lower body, while others said he was still fighting for his life. He
was placed in an induced coma and his Prime Ministerial duties were
handed over to his deputy, Ehud Olmert. On Friday, 6 January, Sharon
was brought back into the operating theatre after doctors reviewed the
results of a brain scan. Hospital officials declined to comment on
these reports.
On the night of Sharon's
stroke, in the wake of his serious illness and following consultations
between Government Secretary Israel Maimon and Attorney General
Menachem Mazuz, Sharon was declared "temporarily incapable of
discharging his powers." As a result, Ehud Olmert, the Deputy Prime
Minister, was officially confirmed as the Acting Prime Minister of
Israel. Olmert and the Cabinet announced that the elections would take
place on 28 March as scheduled.
On 9 January, Haaretz reported that
while performing tests on Sharon while treating his second stroke,
doctors had discovered he was suffering from undiagnosed cerebral
amyloid angiopathy (CAA), a brain disorder which, in conjunction with
blood thinners prescribed after his first stroke, greatly increased
his risk of cerebral hemorrhage. Although some have insinuated that
this news represents a failure on Hadassah's part to provide adequate
care for Sharon, CAA can be very difficult to accurately diagnose, and
is often only discovered after an individual suffers a brain
hemorrhage. The following day, newspapers reported that Sharon's CAA
had actually been diagnosed following his first stroke in December.
This was confirmed by hospital director Mor-Yosef who commented that
"Hadassah physicians were aware of the brain diagnosis, and no new
diagnosis has been made during the current hospitalization." Mor-Yosef
declined to respond to criticism of the combination of blood thinners
and a CAA diagnosis, though Haaretz quoted some doctors as saying the
medication led to the second stroke and that it would never have been
given if doctors had known about his brain condition.[33]
Sharon underwent subsequent surgeries
the following month. On 11 February 2006, doctors performed emergency
surgery to remove 50-cm of his large intestine that had become
necrotic, probably because of a blood clot.[34] On 22 February, he
underwent an additional procedure to drain excess fluid from his
stomach, discovered during a routine CT scan.[35]
Replacement by Ehud Olmert
According to
Israeli law, an Acting Prime Minister can remain in office 100 days
after the Prime Minister has become incapacitated. After 100 days, the
Israeli President must appoint a new Prime Minister.
At the time of his stroke, Sharon enjoyed considerable support from
the general public in Israel.[38] The new centrist political party
that he founded, Kadima, won the largest number of seats in the
Knesset elections held on 28 March 2006. (Since Sharon was unable to
sign a nomination form, he was not a candidate and therefore ceased to
be a Knesset member.)
On 6 April, President of Israel Moshe
Katsav formally asked Ehud Olmert to form a government, making him
Prime Minister-Designate. Olmert had an initial period of 28 days to
form a governing coalition, with a possible two-week extension.[39] On
11 April 2006, the Israeli Cabinet deemed that Sharon was
incapacitated. Although Sharon's replacement was to be named within
100 days of his becoming incapacitated, the replacement deadline was
extended due to the Jewish festival of Passover.[40] A provision was
made that, should Sharon's condition improve between 11 April and 14
April, the declaration would not take effect. Therefore, the official
declaration took effect on 14 April, formally ending Sharon's term as
Prime Minister and making Ehud Olmert the country's new Prime
Minister.
Subsequent care
On 28 May 2006, Sharon was transferred
from the hospital in Jerusalem to a long-term care unit of the Sheba
Medical Center in Tel HaShomer, a large civilian and military
hospital. Ha'aretz reported that this move was an indication that
Sharon's doctors did not expect him to emerge from his coma in the
foreseeable future. Dr. Yuli Krieger, a physician not involved in
Sharon's case, told Israel Radio that the chances of waking up after
such a lengthy coma were small. "Every day that passes after this kind
of event with the patient still unconscious the chances that he will
gain consciousness get smaller," said Krieger, Deputy Head of
Levinstein House, another long-term care facility.[41]
On 23 July 2006, CNN reported that
Sharon's condition was deteriorating and his kidney function was
worsening.[42] On 26 July 2006 doctors moved him to intensive care and
began hemofiltration.[43] On 14 August 2006 doctors reported that
Sharon's condition worsened significantly and that he was suffering
from pneumonia in both lungs.[44] On 29 August, doctors reported that
he had been successfully treated for his pneumonia and moved out of
intensive care back to the long-term care unit.[45]
On 3 November 2006, it was reported that
Sharon had been admitted to intensive care after contracting an
infection, though doctors insisted that his condition was
'stable'.[46] He was moved out of the intensive care unit on 6
November 2006 after treatment for a heart infection. Doctors stated
that "his heart function has improved after being treated for an
infection and his overall condition has stabilised".[47]
In 2006, there were reports that
Austrian and Israeli police were investigating Martin Schlaff and
Robert Nowikovsky of illicit payments to Sharon.[48][49][50]
Sharon has remained in a long-term care
centre since 6 November 2006.[51] Medical experts have indicated that
Sharon's cognitive abilities were destroyed by the massive stroke, and
that he is in a persistent vegetative state with slim chances of
regaining consciousness.[52]
On 13 April 2007, it was reported that
Sharon's condition had slightly improved and that according to his
son, Omri, he was marginally responsive.[53] On 27 October 2009 his
doctor reported that he is still comatose but in a stable
condition.[54]
UNQUOTE
APPENDIX II
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