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DANCING TOWARDS ANARCHY - The President and his Vice
It is common knowledge that the relationship between
the President and his Vice has been fractured for
years and has stretched from courteous accommodation
to downright hostility. On December 22, 2006, this
situation came to a head. The Presidency, it is now
alleged, ostensibly released a statement in which it
“declared” the position of the Vice President now
vacant. For greater appreciation of the scope of
this presidential direction, it is apt to set out,
verbatim,
the statement by which this information was conveyed
to Nigerians. In the statement credited to the
Special Assistant to the President on Public
Affairs, Mallam Uba Sani, the Presidency is alleged
to have stated that
“It is instructive that the vice president in
his acceptance speech at the venue of his
nomination posited inter alia that the PDP was a
dying party, which had failed to properly
deliver democracy dividends to the electorate.
This posture raises the question whether his
continued holding of the office can, legally and
morally, be justified and more importantly
whether the President can continue to delegate
matters of state, as constitutionally envisaged,
to the vice president in these circumstances.
Citing section 142(1), Mallam Sani said by
defecting to another political party, the Vice
President had raised constitutional questions,
one of which was the basis for his continued
occupation of the office, in view of the action.
The constitution, he said, seeks to promote
cohesiveness and focus in the administration of
government and wondered whether in the present
context of the vice president belonging to an
opposition party the constitutional expectation
of consensus and cohesiveness would be met.
“The effect of the vice president’s declaration
for another political party and consequent
acceptance to run as a candidate of that party
is the abandonment of the platform on which he
was elected into power as well as a severance of
his relationship with the President and the
party.
“The net implication is that at the moment he
lacks a platform that can allow him to continue
to occupy that office, and the office is now
deemed vacant. This satisfies the provision in
Section 146 (3) (C) to the effect that the Vice
President’s seat can become vacant ‘for any
other reason’.”
Critics of this government – and
there are many – believe that this is yet another
illustration of an ill-orchestrated dance towards
anarchy by the inherently mischievous and
purpose-driven manner that the Constitution of the
Federal Republic of Nigeria is being manipulated not
only by the executive arm of government but by even
the legislators whose primary assignment is to make
the laws upon which these executive gymnastics is
proceeding. Those critics further believe that such
a declaration is manifestly unfounded and lacks
constitutional justification being, at best, a poor
attempt at seeking to resolve, within the leading
party, PDP and government, a division in its ranks
which has presented it with a quite significant
political problem.
Let us examine the relevant
constitutional facts. The declaration is predicated
on the application of Sections 142, 143, 144 and 146
of the Constitution of the Federal Republic of
Nigeria. In the order of construction, section 142
carries the most critical direction and its
importance means that it must be clearly
appreciated. It states
inter
alia that
142. (1) In any election to which the foregoing
provisions of this Part of this Chapter relate,
a candidate for an election to the office of
President shall not be deemed to be validly
nominated unless he nominates another candidate
as his associate from the same political party
for his running for the office of President, who
is to occupy the office of Vice-President and
that candidate shall be deemed to have been duly
elected to the office of Vice-President if the
candidate for an election to the office of
President who nominated him as such associate is
duly elected as President in accordance with the
provisions aforesaid…
Commentators and lawyers appear to
suggest that this provision was designed to cover
the process for electing the president and his
deputy with its scope limited to the sole purpose of
taking office before and after an election. It
appears silent, it has been suggested, on the now
advocated belief that a change of party membership
or affiliation can lead to ineligibility – or
disentitlement – for either the president or his
vice to lose their position on that account alone.
It does not also state that this event can be a
reason for possible removal from either or both
positions. Indeed, specific provision is made in
section 143 setting out – and we suggest that this
may be the case - a closed list of the specific
circumstances in which either occupant of the
positions can be removed. That provision in the
constitution states that
143. (1) The President or Vice-President may be
removed from office in accordance with the
provisions of this section.
(2) Whenever a notice of any allegation in
writing signed by not less than one-third of the
members of the National Assembly:-
(a) is presented to the President of the Senate;
(b) stating that the holder of the office of
President or
Vice-President is guilty of gross misconduct in
the performance of the functions of his office,
detailed particulars of which shall be
specified…
Sections 144, 145 and 146 make
further provisions in that misconduct; permanent
incapacitation; death; resignation or impeachment
represent the only other bases upon which either
post holder can be removed.
While the Vice President has, it
is understood, shown neither willingness nor intent
to vacate his office, it is clear that he cannot be
deemed to have vacated the said office nor has he
been shown to be ripe for removal from office on the
back of a finding of misconduct by a body of
competent jurisdiction as provided by the 1999
Constitution. The constitution is clear on which
body has the exclusive right to remove the Vice
President from office. This function unquestionably
rests solely with the National Assembly.
Clearly, the party, PDP, has a
problem, the resolution of which, in normal parlance
should not trouble Nigerians outside its
composition. These problems arise from political
differences between individuals, the result of which
has led to posturing and side-taking within the
party. Battle lines have been drawn, debited against
the “spoils” of electoral offices come April 2007.
To achieve these positions, political alliances must
triumph and retain operational control. This
division of ranks has led to an expected
polarization of political views which, in typical
Nigerian style, are to be resolved not by
conciliation or compromise but by overwhelming
triumph. We appreciate the necessity to seek
acceptable solutions within politics but we are
entirely opposed to the use of the constitution or
sections thereof as a tool to settle political
scores. Such a course of action is both
inappropriate and undesirable.
The constitution provides a clear
cut regime of separation of powers. In every
respect, the “declaration”, delivered in the manner
that was the case, was ill-conceived, ill-advised,
poorly executed and has, deservedly, attracted the
derision that its pronouncement so richly deserves.
It is therefore not altogether surprising that a
retraction of sorts has now taken place. The
constitutional responsibility for such a measure,
assuming its appositeness, lies with the National
Assembly. The Presidency has no legal basis usurping
that constitutional responsibility especially
because the necessity for such action had, at the
time, probably not arisen. Any decision making that
appears to portend the executive as struggling with
the ability to correctly implement constitutional
directions like this must, therefore, impinge on its
moral right to govern, a situation that must be
avoided at all costs. On the other hand, there are
others who suggest, with good reason, that these
circumstances were, perhaps, entirely avoidable if
the Vice President, ingesting an appropriate diet of
humble and honourable pie, had given effect to the
ever increasing distance between himself and the
President by departing voluntarily from the position
thereby terminating a moribund relationship that has
now effectively foundered.
We note that both parties have
now, in fact, sought the intervention of the courts
in obtaining a correct, reasoned and informed
interpretation of the applicable constitutional
provisions. We take the view – and express this in
the strongest possible terms – that this ought to
have been the initial, indeed only course of action
that should have been embarked upon. NAS has always
held the view that the continued success of
Nigeria’s democracy will be determined by the extent
to which the rule of law develops, is administered
and is enforced. This is and has always been a
matter for the courts, a situation that makes the
recent developments somewhat difficult to digest.
These developments are extremely
disturbing. Against the background of elections
barely 4 months away, the position portends and
uncertainty that is entirely unacceptable. It does
nothing to shore up an electoral populace that is
already affected by a growing lack of confidence
exacerbated by the advent of an election which, from
all dimensions, appears to be ill and inadequately
organized. Now that the jurisdiction of the Court of
Appeal has been invoked, the country awaits the
determination of a quite interesting constitutional
issue.
Signed:
PROF. OLATUNDE MAKANJU
NAS Capone
National Association of Seadogs (NAS)
January 11, 2007
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