Applications of Section 143, 144 and 145 of the 1999 Constitution of Nigeria.



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Pragmantic implications, applications & construction of the triplet provisions of section 143, 144 and 145 of the 1999 constitution vis a vis Nigerian constitutional democracy. - By Kayode Ajulo*

In embarking on this discussion, I do not envisage that there will be a consensus, but if by this discussion, I succeed in stimulating further thoughts on some significant principles or views on law especially in the constitutional and administrative realm, I would have achieved the objective of this inquiry.

It should be noted that jurisprudence of constitutional interpretation trembles so uncertainly on the margin of many considerations that there will always be a need for conflicting ideas on the purports and spirits of some letters of the constitution.

This discourse will take a form of inquiry. That is, a little beam light into the rationale for the requirement of a Constitution as grund norm in a democratic state, the ingredients of representative democracy, the peculiarities of Nigerian society.

This background will lead us to the necessary inquisition into the understanding of the Provisions of Section 143, 144 and 145 of the 1999 Constitution of the Federal Republic of Nigeria and the litmus test of the applicability of these provisions in our present day democracy.

I must not retire my attention from the fact that there is a need to discuss this topic at this almost mature age of our democracy and especially considering the present constitutional conflicts in our country.

Mr. Chairman, distinguished guests, gentlemen of the press, ladies and gentlemen, please, permits me to reason along with Professor Harold Laski that: “All situations that we confront are ultimately unique and experiment is the condition for survival, since the same good never occurs twice”.

It is by this that I know, situations like this shall not stop from littering our constitutional environment unless and until there is frequent revisit to the grund norm for proper overhauling to meet the demand of the society.

It is almost elementary that various descriptions of the ideology of democracy envisage the importance of Constitution as the grund norm for the proper governance in any state.

Osborn’s Concise Law Dictionary in page 85 of its Eight Edition, Leslie Rutherford and Sheila Bone define Constitution as “…those laws, institutions and customs which combine to create a system of government to which the community regulated by those laws accedes…The written document embodying these laws…”.

While the study of constitutional law is the learning of all rules which directly or indirectly affect the distribution or exercise of sovereign power. So much of the law as relates to the designation and form of the legislature, the rights and functions of the several parts of the legislative body, the construction, office and jurisdiction of the courts of justice.

It is the rule that apart from governing the relationship between the individual and the state, it regulates the structure of the principal organs of government and their relationship to each other, and determine their principal functions not only these it regulates engagement and disengagement of state’s functionaries.

The opening subsection of Section 143 reads: “The President or Vice-President may be removed from office in accordance with the provisions of this section…”

The first option for the removal of President or Vice President from office arises by virtue of Section 143 of the Constitution which empowers the National Assembly to remove either the President or Vice President from office for gross misconduct.

Simply put, what Section 143 does, is to allow the Legislators to remove the President and/or Vice President by impeachment. It is a criminal process against the President, held in a quasi-political court, instituted usually by written accusations duly and formally endorsed by written accusations duly and formally endorsed by the prescribed number of legislators.

The Legislature has the sole power to impeach or try articles of impeachment. Impeachment is a potent weapon reserved in the constitution not for executive incompetence, but for “gross misconduct” in the performance of official, not unofficial duties.

Meanwhile, argument on what constitutes an impeachable offence will certainly continue and its continuity will not restrain the large measure of pleasure granted to the Legislature to determine what constitutes impeachment.

However, it is important to x-ray the rigors which the legislature has to undergo to impeach the President. I shall adopt a graphical approach for clarity purpose. The necessary steps to be taken are:

(a) A notice of allegation in writing signed by not less than one-third of the members of the National Assembly.
(b) Notice is presented to the Senate
(c) The notice states that the President or Vice-President is guilty of gross misconduct in the performance of the functions of office;
(d) The notice must give details and particulars;
(e) Within seven days of receipt of notice, Senate President must serve the notice on the President and each member of the National Assembly;
(f) The President’s reply must also be served by the Senate President on each member of the National Assembly.
(g) Within fourteen days of the presentation of notice to the President of the Senate, each house shall resolve by motion without debate whether the allegation shall be investigated (notwithstanding the reply of the President);
(h) The motion shall be declared passed only if it is supported by the votes of not less than two-thirds majority of all the members of each house;
(i) Within seven days of passing the investigation motion, the Chief Justice of Nigeria, at the request of the President of the Senate, shall appoint a Panel of seven persons of unquestionable integrity, not civil servants, not legislators and not political party members to investigate the allegation against the President;
(j) The President will have the right to defend himself in person or by a legal practitioner of his choice;
(k) The Panel shall have the power and exercise the functions as prescribed by the National Assembly;
(l) The Panel must report its findings to each house of the National Assembly;
(m) Where the judicial panel reports that the allegations have not been proved, the proceedings in respect of the allegations will cease;
(n) Where the panel reports that the allegations against the President have been proved, each House of the National Assembly, within seven days of the receipt of the report of the panel, will consider the report;
(o) If by resolution supported by at least two-thirds majority of all members, the report of the Panel is adopted.

It is important to observe here that impeachment process under Section 143 is directed by the National Assembly and it is a form of political trial over which normal courts have no jurisdiction, except where the Chief Justice of Nigeria is empowered to constitute the investigating panel of the allegations, the National Assembly can nevertheless overrule the decision of the Panel regarding procedure adopted/followed by same and even such decision cannot be invalidated in any court.

What finally terminates the tenure of the president is the adoption, by not less than 2/3 majority of all members of National Assembly of the report of the investigative panel.
It is also important to note that Section 146(1) of the Constitution explains the orders at which the powers and functions of presidency drops upon the activation Section 143 against Mr. President and this is to the effect that Vice president takes over immediately.

I have taken a critical insight into this first option given by the drafter of our constitution to check the excesses of Mr. President in face of much powers bestowed on him by same constitution, as an African man who understands the peculiarities of the African society, I have come to realize that in the name of brotherhood, activation of Section 143 on sole reason that the President has been absent from the office for ill-health reason and has not informed the appropriate authorities before he left would not avail any proponents of the activation of section 143.

Though I need to be candid in my opinion as to the fact that what more can constitute gross misconduct and total disregard for constituted authority than for a president to leave his country for more than four months with no prior notice to any other organs of the government not the entire 150 million Nigerians who pays taxes which are being used to take care of the President in his undisclosed and spurious state of health.

Where else would Nigeria leaders learn from history if after years, my noble and worthy Lord, Honorable Justice Kayode Eso in his speech “Godot? The Colossus At Law, The Constitution and the Common Man” has since warned thus; ’&…if it is democracy we seek, and we have just made reference to democracy, it must be democracy as understood in the free world free of all euphemistic ideologies, free from fear in governance, in trade, in justice, and indeed bear the transparence of freedom…’’

Thomas Paine, however was very passionate about the need to follow the provisions of constitution when he said; …government without a constitution is power without a right. For the want of a constitution in England to restrain and regulate the wild impulse of power…many of the laws,,, the administration of them (sic) vague and problematic… Our problem in Nigeria is thus; not the want of Constitution but the selfish attitudes of our leaders to follow what we have as our constitution.

It is at this juncture I beg proceed to observe that the drafters of our Constitution have observed the enormous powers vested in the person of the president and therefore provides in Section 144 of the constitution the process to be followed if the President is no more medically fit to shoulder these responsibilities.

The late sage and the undisputable founder of modern Yoruba State, Chief Obafemi Awolowo, even while contesting for the position of the president of the Federal Republic of Nigeria in 1970s had expressed the enormity in the responsibilities of the President in his speech while accepting his nomination as the UPN Presidential candidate on 6th October, 1978 titled “The making of Nigeria”

…this high office carries with it enormous obligation and responsibilities. It is not at all an office of pleasure; nor is it one of unmixed pomp and pageantry. On the contrary, having regard to the democratic setting in which the office will be held; having regard to our present economic, political and social circumstances…international status and obligations, it is an office which to make a real success of it, will ipso facto, demand, from its incumbent, a kind of industry, self discipline public probity, tolerance, vision and sagacity which have no precedent here in Nigeria….

Chief Obafemi Awolowo could be said to have in his mind the need to relieve any President not fit to shoulder all these responsibilities of his duties, though not a member of the Constitutional Drafting Committee of the 1979 Constitution, the drafters envisaged a situation whereby the President would be mentally or bodily ill and they have therefore carefully provides the option in Section 144 of the Constitution to succor the sore.

Just like Section 143, declaring the President as unfit on medical grounds to would have instantaneously terminated the President’s tenure. However, the observation of Olisa Agbakoba (SAN) in his foreword in August 2008 to George Anderson’s book “Federalism An Introduction” is apt when they learned silk made his observation on the problems of Nigerian Federation know thus; “Nigeria has been faced with the challenge since independence. With more than 230 different languages and diverse array of cultural values and systems, evolving a workable frame work that harmonizes the often conflicting interest of these constituent has been a challenge; a challenge which is at the root of our economic and political development as a people…”

The selfish interest of members of the Executive Council would prevent and has indeed prevented them in the recent past from tailoring the glaring path of Section 144 of the Constitution when it is obvious that President Yaradua is either seriously ill or dead.
Instead, the Council has found itself debating something else in chains of meetings and even using the unholy opportunity to their selfish interest.

I wish to recall here that at in November 2009, after the unannounced exit of President Yaradua from the country and following series of unholy meetings by his Executive Council, I have the singular honor to be the first Nigerian to write the members of the Council through the office of the Secretary to the Federal Government and drew their attention to the purport of Section 148(2) of the 1999 Constitution which made the presence of Mr. President mandatory in forming quorum for any Executive Council except if there is, in presence a validly appointed Acting President in the meeting.

I gave the Council an ultimatum of a week to reverse all their decisions in the illegal meetings when Mr. President has not been around.

Meanwhile, at the expiration of the ultimatum, I took a further step to file a suit at the Federal High Court Abuja, against the Council to call the Court to review the acts and actions of the Executive Council of the Federal in the light of Section 148 of the 1999 Constitution.

It is thus more unfortunate that even when the Executive Council members understood that they have been confined in a curve and the only option left for them is to consider the medical fitness of the President and make the necessary declaration in consonance with Section 144 of the Constitution, they decided to postpone their meetings.

I also liaised and joined the legal team of Nigerian Bar Association and the two others led by our Femi Falana and Bamidele Atturu to enforce the activation of S. 144 of the Constitution by the Council at the Federal High Court, Abuja. Thank God for Justice Abutu who finally directed the Executive Council to within 14 days deliberate on the medical fitness of Mr. President.

Nigerians thought the Council will abide by the Courts order, but the unfortunate thing is that, what the Council did thereafter cannot be said to have constituted compliance with the Order of the Court, and I was constrained to file another process in the court against the Ministers for Contempt ex facie of Court in which we are asking the Court to commit these errant ministers to prison.

One may begin to think if the option given to the Council under section 144 is that so difficult. It is apt, at this juncture, to quickly x-ray the simple steps expected of the Council and the National Assembly to follow under the provisions of Section 144 of the Constitution.

It is in the spirit of our Constitution that medical incapacity that discharges the President from the responsibility of his office must be disability that prevents him from discharging the powers and duties of the office of the president and such must be strictly validated as follow:

(a) The Executive Council of the Federal will meet, observe and deliberate on the state of health of Mr. President as it affects the discharge of his duties as President and thereafter agree to resolve that he is medically unfit to discharge the functions of his offices.
(b) Meanwhile, upon the declaration being communicated to the President of the Senate and the Speaker of the House of Representative. Then, the President of the Senate would have to set up a medical panel in accordance with Section 144(4) of the Constitution which simply means that the membership of the panels shall include the Personal physician of Mr. President and four other medical practitioners who, he believes, have attained a high degree of eminence in the field of medicine as regards the particular illness in issue.
(c) Thus, if the medical panel deemed it fit to carry out a medical examination on the President, the constitution allows them to do so, but if they only believe in scrutinizing the medical report before them as alleged in the declaration of the Council, they may decide not to carry out any examination and whether they are satisfied with Council’s declaration or not, the panel is required to come out with a report espousing their opinion.
(d) If the panel agreed with the veracity of the allegation in the Council’s declaration, they are obliged to send such report to the President of the Senate and Speaker of the House of Representative and the latter shall both reduced the report into a notice and publish same in the official Gazette of the government of the Federation.
(e) Upon this publication, the President ceased from being the president and the V. President takes up the instrumentality of the presidency in accordance with S.146 (2) of the Constitution.

Having regard to the attempt by the Supreme Court in INAKOJU v. ADELEKE [2007] 4 NWLR (pt. 1025) 423 to delineate reasonably, the previously wide arc of acts that may amount to gross misconduct, it is viewed that an African legislator would be careful in canvassing unsolicited ill-health as gross misconduct.

Considering the sensitivities of ethnic and religious balance, it is often difficult to toe the line indicated very clearly by the constitution. The option of impeaching the President would seem to flounder on our African sense of brotherhood.

Let me not bored you and quickly proceed to the most interesting option given the President himself under the Constitution to save himself of all these seemly ‘embarrassments’ or inquiries. It is important I quote the provision of Section 145 of the Constitution verbatim from the grund norm.

Whenever the President transmits to the President of the Senate and the Speaker of the House of Representative a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President.

Let me quickly say that, before the recent action of the National Assembly in declaring the Vice President Goodluck Jonathan as the Acting President, I have filed a suit against the President of the Senate, Speaker of the House of Representatives and the Attorney General of the Federation shortly after the President interview at the British Broadcasting Corporation (BBC), to construe the circumstance of events as meaning activation of Section 145 of our Constitution.

Many legal representatives kicked against my view. In fact, some learned silk claimed to have been intellectually offended by my candid position and the interpretation of Section 145.

Before I proceed, I must quickly correct one impression. Not many, even among the men of the wig and gown, know that Constitutional law is a sui generis and this is why they are not too swayed by my argument.

Many critics of my opinion and the resultant declaration made by the National Assembly never disputed with the fact that the word ‘whenever’ in section 145 implies ‘from time to time’ in that within the tenure of four years or eight years, as the case may be, the President will be expected to be unavailable to discharge the functions of his office on several occasions.

On such occasions, he is expected to ‘transmit a written declaration’ to the President of the Senate and the Speaker of the Houser of Representatives that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office. Most of our critics strongly contend the fact that the interview granted by the President Yar’adua cannot be said to have constituted a ‘written declaration’ by the President and that such broadcast cannot qualified as one directed to the President of Senate or Speaker of the House of Representative.

I have followed the path laid down by the Supreme Court in several cases on the construction of the Constitutional provision in my arguments.

There are decisions too numerous to mention that have brought succour when necessary because the Judiciary was alive to their responsibility having regard to the circumstances and the needs of the public interest.

The interpretation of the Constitution is not an opportunity for strict constructionists to go home happy in the realm and complete reign of constitutional conflicts and absurdity.
NAFIU RABIU v. THE STATE (1981)2NCLR 293 is a case fought thoroughly and briskly by two legal giants of blessed memory Chief F.R.A Williams, SAN and Chief Kehinde Sofola, SAN. The Supreme court similarly empanelled a strong Bench (coram: Udo Udoma, Ayo Irikefe, Chukwunweike Idigbe, Andrew Obaseki, Kayode Eso, Augustine Nnamani, and M.L Uwais JJ.SC) to unravel the thorny issues that arose for decision.

Sir Udo Udoma, forewarned that …the approach of this Court to the construction of the constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends…

I have not argued that the meaning of the word or phrase change, but the changing circumstances illustrate and illuminate the full import of that meaning. Time shall not permit me to reveal how the Court support this stance in JAMES v. COMMONWEALTH (1936) 55 CLRI, 43. Lord Wilberforce in MINISTER OF HOME AFFAIRS v. FISHER (1980) AC 319, PC also speaks of a constitutional instrument as sui generis and calls for a generous interpretation avoiding what he called “the authority of tabulated legalism”.
I have reasoned, with all humility and sense of public interest, that this provisions can be met in two ways, i.e. when:

(a) Mr. President has discretionarily prepared a written document with the content that he would be proceeding on vacation and such document should be directed purposely to the President of the Senate and the Speaker of the House of Representatives; or
(b) In any case where the President has failed to tailor the first path, especially where it is glaring that the President is ill and cannot be said to be medically fit to prepare any written document, then once the President has expressed in his own words the intention of him going on vacation and such is published in public document communicated to the whole world including to the President of the Senate and the Speaker of the House of Representatives, the acknowledgment of same has marked a compliance with Section 145 of the Constitution.

The first interpretation is literal and strict while the later is liberal.

It is thus my argument that the President has expressed intention that he is seriously ill, and will only resume his duty once his doctors discharge him and by this it is reasonable to presume that the president is medically incapacitated to the extent that he cannot even write any document as strict interpretation of Section 145, meanwhile once his interview of BBC has been broadcast and transmitted by almost all Newspaper in Nigeria, the intention of Mr. President could be said to have been reduced into writing and that is all what S. 145 requires.

However, the fact that such writing document has been thoroughly debated by the two chambers of the legislature presided over by the leaders of the Chambers, the President of the Senate and the Speaker of the House of Representatives cannot said they have not had the knowledge of the President’s intention.

In fact, the fact that the interview and the newspaper is for the whole world, the president intention could be said to have been directed to people including the President.

I wish to address the point of some Nigerians that the Vice President automatically assumes the office of Acting President upon activation of S.145 of the constitution and that the National Assembly cannot declare him so. Let’s assume without conceding that this amount to a surplus on the part of the National Assembly, but the acknowledgment of the receipt of the written declaration by the Senate and Representative is germane to the proper activation of S.145 and once what the National Assembly did included the acknowledgment of the receipt of the transmission from the President. Once this is done, any other surplus would not render the whole actions ineffective.

The legislative body who is ordinarily saddled with the receiving of that letter has satisfied itself that the information at its disposal is enough for it to come into the conclusion that the President is not medically fit to continue in office and therefore there is need to do away with the vacuum which his absence might caused.

Conclusion

Mr. Chairman, ladies and gentlemen. Ordinarily, it is against my nature to elaborate on theories except when it is necessary. I have observed that not more than 1 million out of 150 million Nigerians have copies of the Nigerian Constitution. I further observed that even less than 500, 000 out of 1 million have ever bothered themselves to read through the constitution and even when read through less than 100, 000 Nigerians have the requisite knowledge to understand the spirit of individual letters of the constitution. Even among learned men, I have observed they have wittingly and unwittingly not understood the Constitution

I have inquired into why our leaders find it difficult to explore the sacred routes laid down by these provisions to salvage the country form circumstances where there is a need to relieve our President of his duties.

I have listened to some arguments that without the passing of the Freedom of Information Bill into Law by the National Assembly, our much-cherished press would not be capacitated to have sufficient access to some information especially now as concerned the whereabouts or the state of health of the President. I have good news for you.

I have had the privilege of going through the so-called FOI Bill. While I commend the effort of the sponsor of the bill I would not mince words to quickly express my opinion that several of our laws have covered virtually all what the FOI bill purport to cover.

As I saw a need to unify these laws, I have failed to see how non-passage of the FOI Bill as a clog in the wheel of the duties of the Press in the society. Let me remind you of the provision of Section 22 of the constitution states thus:

The press, radio, television and other agencies of the mass media shall all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the People.

Bearing this in mind, it is fundamental that press can request for information or make inquiry into any events if need be. Keeping the knowledge of the whereabouts of the president from the press is against the spirit of the provision above and some other statute.

Don’t be surprised by the fact that I have even filed a suit at the Federal High Court against all the known handlers of President Yaradua present situation including his wife, Hajia Turai Yar’adua, I decided to put gentlemen of the press as defendants in the matter purposely to remind them of their duties and put them on their toes on why they must confront the wife of the President and some other authorities on the full information about the whereabouts and the state of health of the President.

In one of the great pillar of democracy is transparency, citizens of Nigeria have inalienable right to know the true situation of their President, the mass media has constitutional responsibility to ensure this and others at all time, where these rights are denied our court is ever ready to see that such breach is reverse.

I have also listened to some Nigerians who have argued that the inability of the President to perform the function of his office and the resultant absence in the office are unconnected with Rights of citizens.

I was sad when I heard this argument. I am not a politician but a lawyer who has found my humble self in many sane societies.

Let me start by saying that, the absence of Mr. President would not have anything to do with the Fundamental Human Right of Nigeria citizens as contained in Chapter IV of the 1999 Constitution; I would not tailor the path of positivist school of jurisprudence.

It is beyond obvious that the President office belongs to Nigeria and the person occupying the office is answerable to 150 million Nigerians. I am happy that the drafter of our constitution never forget to express this when they use the preposition “for” in Section 130(1) of the Constitution thus: “There shall be for the Federation a President” .

Graduate of the Natural Law School of jurisprudence and probable sociologist would agree that when “A” belong to “B” “C” “D” “E” and somebody called “F” just takes “A” away without the knowledge of “B” “C” “D” “E” who sees to the affairs of “A” and be answerable to, then a right has been infringed. Don’t be surprised. Such right might not have been conceptualized in any laws yet it is natural that something is wrong.

It is elementary that Public office holders derive revenue from the government to run their official and sometimes personal affairs.

Needless to say that government revenue are gathered from tax collected from citizens.
It thus goes that it is the taxpaying citizen and non-citizen of the country that foot the medical bills of President Umaru Yar’adua. Then, the beneficiary of our taxes should be answerable to us. We ever knew how much.

I have trained my legal mind to think beyond the letters of statutes and often reasoned to understand the underlying rationale of the stance of the law. It is through this, one can clearly know the true spirit of any law.

I have the opportunity to read much of philosophers such as Roscoe Pound, Rene De’carte, Aristotle, John Mill and even my own cherished law lord, Honorable Justice Kayode Eso (rtd.) and I have observed that they have lived beyond the absurd letters of the law but to the realm of social justice and pragmatic application of the law in engineering the affairs of people in the society.

I have gone severally through our Evidence Act and understand that there is what is called presumption of death, regularity, marriage etc.

I understand specifically that the average life span of man is 70 years and by this, it is presumed that once it is established that the man has been absent for 7 years (which constitute 10% of his life span) and nobody can testify to the fact that he/she knows his/her where about, then the law presumes him dead.

It is in the spirit of this I would like to educate the populace on what I described as presumption of permanent incapacitated. The president has 4 years to spend in the office and it is obvious that he has been absent for more than 100 days in office, this constitutes time above 10% of what he is to spend, then it is reasonable to presumes that the President is permanently incapacitated.

It is humbly submitted that if Doctrine of Necessity can be used to move the nation forward, it is therefore high time we considered the above proposed doctrine of permanent incapacity to ensure that a new Vice President emerges in Nigeria as a new constitutional crisis is in the offing with the proposed visit of the Acting President, Goodluck Jonathan to visit United States as the question that is presently agitating my restless mind is: Who will the Acting President hand over to during his proposed vacation to United States?

ABOUT THE AUTHOR: Kayode AJULO, ESQ.
Thank you and God bless Nigeria. Kayode AJULO, ESQ. Castle of Law, Abuja-NIGERIA 25th March 2010

Copyright Kayode Ajulo & Co. Castle of Law
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