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Atiku’s Seat: Between Constitutional Order And National Security By Emeka Oraetoka
The eavesdropping [automatic listener] programme, initiated by President George Walker Bush immediately after the September 11th, 2001 attacks on USA, may have proved that National Security could be superior to the Constitution of any country in the world. As President Bush pointed out in a radio address on Saturday, December 17, 2005, the supremacy of National Security over constitutional order gathered meaning both in form and content, when viewed from the perspective of United State’s tricky circumstance as it were then. He said, “As president, I took an oath to defend the constitution, and I have no greater responsibility than to protect our people, our freedom, and our way of life. On September the 11th, 2001, our freedom and way of life came under attack by brutal enemies who killed nearly 3,000 innocent Americans. We’re fighting these enemies across the world. Yet in this first war of the 21st century, one of the most critical battlefront is the home front. And since September 1th, we’ve been on the offensive against the terrorists plotting within our borders”---
As the Chief Security Officer and Commander-in-Chief of American Armed forces, President Bush had the option of not initiating eavesdropping in the first place, but surely, he would be held responsible for not taking security measures to protect USA from further attack[s]. The cost of not eavesdropping because of its unconstitutionality could either be more pummeling of America by the terrorists, with great consequences, possibly. The unconstitutionality of President Bush initiated NSA eavesdropping programme, was finally pronounced on Thursday, August 17, 2006.On that day, CNN.com reported thus: A federal judge on Thursday ruled that the U.S government’s domestic eavesdropping programme is unconstitutional and ordered it ended immediately.
Expectedly, reaction for and against the programme sprouted. In a statement from the White House Press Secretary, Tony Snow said, “The pogramme is carefully administered and targets only international phone calls coming into or out of the United State, where one of the parties on the call is a suspected al Queda or affiliated terrorist. “The whole point is to detect and prevent terrorist attacks before they can be carried out”.
Anthony D. Romero, the ACLU’s executive director, has this to say, “Today’s ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration” Further, he said, “Government spying on innocent American ’s without any kind of warrant and without congressional approval runs counter to the very foundations of our democracy. We hope that congress follows the lead of the court and demands that the President adheres to the rule of law”. On his part, Senate majority leaders said he backs the government’s appeal of the ruling. According to him, “Terrorists are the real threat to our constitutional and democratic freedoms, not the law enforcement and intelligence tools used to keep America safe”. He further noted: “We need to strengthen, not weaken, our ability to foil terrorist plots before they can do us harm. I encourage swift appeal by the government and quick reversal of this unfortunate decision”. On his part, Republican Congressman Pete Hoekstra, Chairman of the House Permanent select committee on intelligence, pointed out that “it is disappointing that a judge would take it upon herself to disarm America during a time of war”.
In sum, critiques of the unconstitutionality of eavesdropping failed to provide alternative to the programme. It however, clearly showed that they were much more concerned about the provisions of the Constitution, not National Security which was threatened to its very foundations. Viewed from current experience in Nigeria here, one can clearly see the danger in a split presidency on account of party affiliation, which is clearly a threat to National Security. Nowhere in the world has a scenario like this occurred and that makes it even more dangerous.
For quite sometime now, Vice President Atiku Abubakar’s defection from the platform that brought him to power the Peoples Democratic Party [PDP] to a fledging platform, Action Congress [AC], where he hoped to actualize his dream of becoming the President of Federal Republic of Nigeria come 2007; and subsequent declaration by the President, upon the advice of the party that Atiku’s position is now vacant, consequent upon this, a lot of arguments have been advanced by legal luminaries on the constitutionality or otherwise of Mr. President’s action. While some are of the view that President Obasanjo’s action was unconstitutional, null and void, as relevant sections of the Constitution stipulate the process through which the Vice President can be removed from office; others insist that the Constitution clearly states that the President and his Vice, must come from the same political party, and Atiku, by the reason of his defection, clearly violates this section of the Constitution and therefore, automatically, surrenders his seat. They add that since there is no faction in the ruling Peoples Democratic Party (PDP), there is no way Atiku could leave his party for another without losing his seat, in accordance with the relevant Constitutional provisions regarding factions in a political party.
Some members of the National Assembly have come hard on the President for declaring Atiku’s seat vacant. They are of the view that it is only the assembly that can remove the Vice President and nobody else. As at last count, the battle for the seat of former Vice-President?, Atiku Abubakar has shafted to the law court. Constitutionally, both proponents and opponents of declaration by Mr. President appear correct, according to experts in constitutionalism. They argued that the only solution to future event like this, Nigerian constitution should be amended immediately. For the proponents of Mr. President action, they believe that the President has the right to remove his vice under the circumstance, believed to be abnormal [defection from PDP to AC]. These proponents agreed that under normal circumstances, the President couldn’t remove his vice from office. On the other hand, opponents believe that only the provisions in the Constitution on how executive office holder could be removed are the only channels through which the Vice President can be or stands removed. Undoubtedly, both schools of thought could flaunt relevant provisions of the 1999 constitution in backing up their claims.
The obvious implication of these positions is Constitutional stalemate. But an objective look at the position of opponents of President Obasanjo’s action suggest two diametrically opposed points: In the first place, there is the view that Obasanjo should have informed the national Assembly of Atiku’s action and wait for their action -here, there is silent belief that Mr. President acted right, but was rather in a hest. Secondly, some select National Assembly members are spoiling for war because President Obasanjo knows that they, the National Assembly members would never agree to impeach Atiku, no matter the security implication of Atiku’s action, the correctness of Obasanjo’s action notwithstanding. Many factors, are however, responsible for this mindset-the anger of having lost out in primary election is one potent factor. The perceived Northern opposition to President Obasanjo’s regime is another factor. They hope that, with the numerical strength of North in the National Assembly, the possibility of Atiku’s impeachment looks unrealizable, no matter his action on National Security, and this is where actors in Nigeria project must take care!
Obviously then, President Obasanjo may have opted to protect National Security first, by declaring Atiku’s seat vacant upon Vice President’s defection from the party that brought him to power, to a fledging political outfit. In this circumstance also, it could be seen from American experience that National Security could be more superior to the Constitution. If Bush administration could place National Security above constitutional order, many say, they see no reason why Obasanjo should not do same in Nigeria, a third world nation for that matter, and also considering the fact that the unconstitutionality of Mr. President’s action is neither here nor there.
Perhaps, it was the realization that some members of Senate in USA, had already made up their minds that Bush’s was guilty on eavesdropping programme, constitutionally, as declared by federal court, that prompted Bush to say this: “I want Senators from New York or Los Angeles or has Vegas to go home and explain why these cities are safer”, He further went on to say: “It is inexcusable to say, on the one hand, ‘connect the dots’ and not give us a chance to do so”. In taking the argument for eavesdropping beyond any doubt, Bush has this to say, “Two of the terrorist hijackers who flew a jet into pentagon – Nawaf al-Hamzi and Khalid al-Mihdar, communicated while they were in the United States to other members of al-Quida who were overseas. But we didn’t know they were here, until it was too late”….
Form United States experience, it could clearly be seen that eavesdropping even though declared unconstitutional, by a federal judge, there could be good justification for the programme as September 11, 2001 terrorist attacks was clearly a threat to National Security as well as an act of war against US. It is therefore, reasonable, understandable to equate the defection of Vice President Atiku Abubakar from the political platform that brought him to power to a fledging political party without established structures, to potential threat on National Security, more so when the constitution clearly stated that the President and his Vice must come from the same political platform. Perhaps, Obasanjo declaration of Akitu’s seat vacant was to forestall a state of anarchy in Nigeria, arising from this dangerous desertion? In-fact, President Olusegun Obasanjo’s action on Atiku as the Chief Security Officer of the Country, was probably aimed at pulling the nation out of clear and present danger?
Emeka Oraetoka Information Management Consultant Contributed this piece from FCT
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