Presidency: Jonathan is not in charge

First, President Umaru Yar’adua, even when he was in Saudi Arabia, and now that he is back in the country, remains the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria until he resigns (section 135c), is removed for incapacitation (section 144), is impeached (section 143), or dies (section 135b). It is not for nothing that Section 130 (2) of the constitution states, “The President shall be the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation”. Of course, there is no provision anywhere in the constitution where the Vice-President or the non-existent position of Acting President is to become the Head of State and Commander-in-Chief of the Armed Forces of the Federation.

Second, Dr Goodluck Jonathan remains the Vice-President of Nigeria despite the illegal and unconstitutional resolution passed by the National Assembly purportedly empowering him to become the Acting President of Nigeria. This has to do with the fact that the resolution of Parliament does not have any force of law, and the constitution did not make any provision for the office of Acting President in Nigeria. In this wise, Dr Jonathan, as Vice-President or the non-existent position of “Acting President”, cannot seat on the President’s chair while presiding over the meetings of the Executive Council of the Federation (EXCOF). Dr Jonathan cannot sack or demote any of the ministers appointed by the President without Yar’adua’s consent or such actions risk reversal anytime. The Vice-President, even as the non-existent position of “Acting President and Commander-in-Chief of the Armed Forces”,  cannot sack or discipline the service chiefs or the Inspector-General of Police (IGP) because he is not the Head of State and Commander-in-Chief of the Armed Forces of the Federation. What this means is that any policy actions taken by Dr Jonathan as the “Acting President and Commander-in-Chief” may be reversed at anytime by President Yar’adua if they did not meet with his dictates on the matter.

Interestingly, Section 145 of the 1999 constitution, even where the President transmits a written declaration to the leadership of the national legislature informing it of his leave of absence from duty, did not provide for the passage of a resolution empowering the Vice-President of Nigeria to become the “Acting President and Commander-in-Chief of the Armed Forces”. In any true democratic set up, its constitution empowers the legislature to amend provisions of the supreme law of the land to take care of unforeseen situations that were not anticipated in advance when the original document (constitution) was being baked. In the case of Nigeria, section 9(2) of the constitution mandates the National Assembly and two-thirds State Houses of Assembly to effect a constitutional amendment to take care of unforeseen situations in the polity.

As a matter of fact, even in societies without written constitutions, where the principle of “the doctrine of necessity” legitimately operates, the principle or doctrine is applied by the courts and not by the legislature. This may explain why the Nigerian Bar Association (NBA), (even when it was not necessary since the constitution of Nigeria is a written one), went to the Federal High Court sitting in Abuja (not the National Assembly) and asked it to invoke the doctrine of necessity and declare Dr Goodluck Jonathan the “Acting President of Nigeria”; a position that does not exist. However, even if for the sake of argument the contention is allowed that there was actually a constitutional crisis in the country occasioned by President Yar’adua’s sojourn in Saudi Arabia; the only option opened to the National Assembly was that of amending the relevant sections of the constitution to take care of the unforeseen situation. The issue of passing a resolution that does not have any force of law to resolve the manufactured constitutional crisis was completely out of the question.  

In any case, there is even a federal high court declaration that Dr Jonathan can perform the presidential duties of President Yar’adua as Vice-President but not as Acting President. Justice Daniel Abutu of the Federal High Court, Abuja ruled recently that “The Vice-President, Goodluck Jonathan could exercise, in the absence of the sitting President, all the powers vested in the President. In exercising such presidential powers, the Vice-President could only be queried by Mr. President if he did not permit the Vice-President to so perform the presidential function. The only condition that could warrant his (Goodluck Jonathan’s) change of status from vice-president to acting president is wilful compliance by President Yar’adua to activate the provisions of section 145 of the 1999 constitution via transmitting a written declaration to the National Assembly endorsing power shift”. From whatever perspective this matter is appraised, the above quote excerpted from an Abuja Federal High Court ruling on the status of Dr. Jonathan represents the position of the law until set aside by a superior court.

Finally, the point needs be made that while public opinion is expected to play an important role in the formulation of the policies and programmes of government in genuine democratic societies, the instruments that actually direct activities and actions are the courts. On the issue at hand, it is safe to conclude that until the Justice Abutu judgment is set aside by the Court of Appeal or the Supreme Court, Umaru Yar’adua remains the President and Commander-in-Chief of the Armed Forces of the Federation while Goodluck Jonathan, as Vice-President, performs all presidential duties for President Yar’adua in an acting capacity. Anybody or authority that believes that Goodluck Jonathan is in charge in the running of the affairs of Nigeria today is living in a fool’s paradise or wallowing in delusion of grandeur.

Mr Nkemjika, is the co-author of the book, “Oil Exploration in Northern Nigeria: Problems and Prospects”