"Missing President" - A Case for Constitution Review

The Abuja Federal High Court, yesterday declared that Vice President Jonathan Goodluck is “empowered by the 1999 Constitution to exercise, in the absence of President Umaru Yar’Adua, all the powers vested in him, including signing of sensitive documents, so far such powers are delegated to him”.

Justice Dan Abutu made the pronouncement while interpreting sections 5(1) and 148 (1) of the 1999 constitution in a suit brought by a lawyer, Mr. Christopher Onwuekwe. Mr Onwuekwe had asked the high court to declare that “in absence of the President Umaru Yar’Adua, the Vice President, by virtue of the provisions of Section 5(1) and 148 (1) of the 1999 Constitution, could exercise all the powers vested in the President in the interest of peace, order and good governance pending when his boss, Yar’Adua, would resume office.

In his judgement, Justice Abutu noted that both sections 5(1) and 148 (1) are clear about how the president can transfer to the Vice President or any of the cabinet member. However it did not specify the manner or the procedure through which Mr. President could delegate any of the presidential powers.

So in simple terms, the Vice President could be instructed via a simple phone call from Saudi Arabia to sign the 2010 Budget Appropriation Bill. In fact the Judge went further that it’s no one’s prerogative to query the mode of transfer of power to the Vice President (!). In the current situation where it is rumoured that the president is comatose, how can anyone be sure that the president is actually passing instructions. Another implication of the judgement is that it indirectly legitimises the “unofficial” role of the First Lady as a conduit between president and cabinet members, since no one can challenge the ‘mode of power transfer’.

Whether good or bad, the current political impasse has helped underline the ambiguity in the nation’s constitution. And from the events of the last few weeks, I have come to a conclusion that when you are dealing with Nigerian issues, matters of legal importance need to be spelt out in ‘black and white’. You cannot afford to have grey areas, because if you do, it will be exploited to its maximum as we are currently experiencing.

The truth is, as things currently stand, President Umaru Yar’Adua has not breached any provisions in the 1999 constitution. I’m sure some would ask, what’s this guy talking about?. Whilst it might sound harsh, that is the blunt truth.

There is nothing in the constitution about how much time the president can spend overseas, just as the Deputy Senate President said recently. So as far as the constitution goes, President Yar’Adua can stay in Saudi Arabia as long as he likes. Also, just as the Attorney-General once said, the constitution does not state that the president has to be physically present in Nigeria to rule the country. This means, President. Yar’Adua can continue to rule Nigeria from Saudi Arabia until kingdom come. In fact there is nothing stopping us from voting for an offshore president, if we so decide, in 2011. If people can contest and win elections while in prison, how much more having a ‘President in Diaspora’.

Also, we have been told many times by the Yar’Adua apologists that there is nowhere in the constitution where it is mandated that the President has to handover to his deputy. Whilst some might not agree, it is the fact. The president is not obliged by the constitution to do so. This could easily be interpreted as been discretionary.

Even on the issue of incapacitation of the president, the constitution does not clearly articulate what it means to be incapacitated. And like I wrote in one of my previous articles, does lying on a hospital bed mean been incapacitated? Or is it being brain-damaged? Or is it when you are in coma? Some might say these are trivial questions of which you can apply common sense. But as we all know, ‘common sense is not always common’. When an individual is allowed too much discretion, you cannot expect him/her not to exercise the discretion in his/her favour.

So the question is, how do we prevent a repetition of the current political crisis? You need not to be a Professor of constitutional law or political science to know that the nation’s constitution needs wholesale review. And when I say constitution review, I’m not talking about opportunity for state creation or tenure elongation. The loopholes currently being exploited needs to be plugged, as a matter of urgency. Legislative provisions need to be set in black and white, since it has become apparent that our political leaders cannot be trusted with the use of discretion. If it takes having clauses that limit the duration of the president’s absence, so be it!

The power to investigate the health status of the President should not rest solely on the Executive. The national assembly should be given powers to initiate such investigation. For me, vesting such powers on the Executive represents a major conflict of interest. Most, if not all, members of the federal executive council are the loyalists to the president. So how can anyone expect them to launch an investigation that could ultimately result I them losing their jobs.

Don’t get me wrong, there is no perfect constitution. You must be living in utopia to want to have a perfect constitution. Like every legal document, it can never be fool-proof. But at the same time, there is no point having a constitution that is not ‘fit for purpose’. Irrespective of how the current crisis is resolved, there is a growing urgent need for a wholesale review of the constitution. We cannot afford a repetition of the current political impasse. A situation where a nation’s president will go missing for 50 days is totally unacceptable in any jurisdiction. Nigeria is not a banana republic.