Unnecessary "Necessity"

After weeks of dilly dallying, the Senate decided to act on the nation’s political impasse. A resolution was passed by the Upper House to recognise the Vice-President, Goodluck Jonathan as the nation’s ‘Acting President’. It’s right to say that the Senate action has not been short of controversies. While some consider the action of the Senate unconstitutional, the Senate itself and some other public observers believe the action was ‘expedient’. The Senate has tried to justify its action on the basis of political expediency and “doctrine of necessity”.

So what is “doctrine of necessity”?

According to the Senate President,

"The doctrine of necessity requires that we do what is necessary when faced with a situation that was not contemplated by the Constitution….Viewed from an ordinary reading of Section 145, we came to the conclusion that the President, through his declaration transmitted on the BBC, has furnished this parliament with irrefutable proof that he is on medical vacation in the Kingdom of Saudi Arabia, and has therefore complied with the provisions of Section 145 of the 1999 Constitution. For avoidance of doubt, let me re-emphasise the import of prayer two of our resolution. The President will automatically resume office as President and Commander-in-Chief once he is well enough and returns to the country and informs us accordingly, pursuant to Section 145".

By definition, the “Doctrine of Necessity” is a common law rule, which allows judges to do justice in situations not envisaged by specific provisions of the law. It is also regarded as a legal principle that justifies a person’s action in an emergency that he or she did not create. Although it is generally agreed that the doctrine of necessity in itself is not ‘illegal’ in law, its application by the legislative assembly remains controversial.

I’m not convinced by the statement of the senate president, claiming that the current situation wasn’t contemplated by the constitution. If that’s the case, then what’s the purpose of Section 145 of the 1999 constitution? To say that Section 145 is imprecise is probably a better argument than saying, "situation wasn’t contemplated by the constitution”.


In my opinion, the action of the legislative assembly raises more questions than answers. Why did it take the Senate, 79 days to come up with a solution – albeit controversial? This is the same legislative assembly that told 140 million Nigerians just few weeks ago that its hands were tied. So have their hands suddenly been let loose? Or have they only just realised that it would be politically expedient for them to take an action?

The question also needs to be asked about why the Senate resolution was passed just before the Federal Executive Council had the opportunity to discuss the much publicised memo by the Minister for Information, Dora Akunyili.

For now, it seems everyone is happy. And as they say, “the end justifies the means”. But whilst the Senate might have successfully plugged the power vacuum in the interim, their action has not in anyway addressed the key issues around the health status of President Yar’Adua. Unfortunately, the nation is now carried away by the euphoria of power transfer to Goodluck Jonathan.

I will like to draw everyone’s attention to the loophole in the Senate resolution. The Senate noted that “President Yar’Adua will automatically resume office as President and C-in-C, once he is well enough and returns to the country and informs us accordingly, pursuant to Section 145”. So what exactly is the Senate definition of “well enough”? If they do not have a full understanding of the president’s health status, how can they determine if he is well enough to return to work? It’s like trying to determine how fast a car can travel without any test drive.

Also, let’s assume President Yar’Adua returns to Nigeria next week, who will certify his fitness? Will the Senate set up a panel to determine his fitness? We should also bear in mind that the constitution does not stipulate the minimum health requirement of the president.

For me, the Senate resolution makes mockery of the relevant provisions in the nation’s constitution. Instead of rushing to pass the controversial resolution, the Senate should have exerted pressure on the FEC to investigate the president’s health status. The memo presented by the Minister for Information should have been allowed to be debated. Failing this, the Senate can then pass the resolution. And then we can talk about ‘doctrine of necessity’.