The Attorney-General of the Federation, Chief Michael Kaase Aondoakaa (SAN), yesterday, told a Federal High Court sitting in Abuja that President Umaru Yar'Adua would neither resign his office nor allow his Vice, Dr. Jonathan Goodluck, to act as President for a second on account of his health.
According to the nation's Chief Law Officer, President Yar'Adua was not suffering from infirmity of body or mind as to render him permanently incapable of discharging the functions of his office from anywhere in the world.
He said the Federal Executive Council, FEC, which is a creation of the Nigerian constitution, had, on December 2 invoked its powers under Section 144 (1) (a) of the 1999 Constitution to pass a resolution and declared Yar'Adua fit to continue governance.
He added that Vice-President Goodluck was at the FEC meeting where the resolution was passed and that he played a prominent role to shoot down the call for Yar'Adua's resignation or wholesale transfer of presidential powers to him (VP), in acting capacity.
Aondoakaa spoke yesterday in court at hearings in a suit filed by a Lagos lawyer, Mr. Femi Falana, and another by Honourable Farouk Adamu Aliyu and a lawyer, Mr Hussaini Gabbas
Falana is asking the court to compel President Yar'Adua to transmit a written information to the National Assembly about his ill-health to enable the two chambers of the National Assembly empower Vice-President Jonathan Goodluck to take over governance and discharge the function of office of the President in the capacity of Acting President.
He said he wanted the court to move in his favour so as to legalise all decisions including contract awards being taken at FEC meetings under the chairmanship of Goodluck, who he said allegedly has no such authority to do so.
Aliyu, in his own suit, being prosecuted by the chambers of Mr. Bamidele Aturu is asking the Federal High Court to declare President Yar'Adua unfit to continue governance in view of his absence from duty for over 30 days and wanted a consequential order compelling Jonathan to step in and perform the presidential functions.
AG wants suits dismissed
The Attorney-General of the Federation, who attacked the competence of the two suits, yesterday, on the grounds that the plaintiffs lacked the locus to invoke the judicial powers of the court, also argued that there was no need for Yar'Adua to inform the National Assembly about his ill-health since he was and is still exercising the functions of his office through the Vice-President and his ministers as enshrined in Section (5) (1) and Section 148 (1) of the 1999 Constitution.
Section 5 (1) of the 1999 Constitution of the Federal Republic of Nigeria reads:
"Subject to the provisions of this Constitution, the executive powers of the Federation
(a) Shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly be exercised by him either directly or through the Vice- President and Ministers of the Government of the Federation or officers in the public service of the Federation and
(b) Shall extend to the execution and maintenance of this constitution , all laws made by the National Assembly and to all manners with respect to which the National Assembly has, for the time being power to make laws
Section 148 (1) of the 1999 Constitution also reads:
(1) The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation including the administration of any department of government.
'Calls for Yar'Adua's resignation uncalled for'
He told the court that President Yar'Adua has since been delegating the powers of his office to members of FEC including the Vice-President.
He said the calls by some Nigerians and the reliefs being sought in the pending suits before the court to either resign his office or inform the National Assembly of his ill-health to allow Jonathan take over as Acting President were unnecessary.
He argued that in the first place, the case of Yar'Adua's health was not that bad to necessitate the invocation of Section 145 of the 1999 Constitution.
He said assuming without conceding that it was that bad, the invocation of the provision of Section 145 which is one of the principal reliefs being sought by the suits, is discretionary.
The said Section 145 of the 1999 Constitution reads: "Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives 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."
Aondoakaa said Section 145 of the 1999 Constitution needed not be invoked before Vice-President Jonathan could perform the functions of the President.
He said the 1999 Constitution which created the Office of the Vice-President did not assign any duty to him (VP) but that the occupant of the office is empowered to perform any presidential functions assigned to him by Mr President.
He further told the court that it, therefore, followed that all the functions which at present being performed by Vice-President Goodluck were in accordance with the provisions of sections 5 (1) and 148 (1) of the 1999 Constitution including presiding over the meetings of the Federal Executive Council, FEC.
He said it could not be true that it is illegal for Vice-President Goodluck to preside over FEC meetings except in his capacity as acting President of the Federal Republic of Nigeria.
"This section, therefore, does not delineate the scope of the powers that may be assigned by the President or the manner for such assignment," he said.
Aondoakaa added that if it were, the constitution would expressly have stated that even if Mr President is assigning the performance of any of his presidential functions to his vice while he is unavailable, that power delegation shall not cover presiding over FEC.
VP acts at President's discretion, says AG
He said all the presidential functions being performed by VP Jonathan were legal because the President allowed him to so perform them in compliance with sections 5(1) and 148 (1) of the 1999 Constitution.
Aondoakaa said Falana's suit seeking to compel Yar'Adua to comply with Section 145 of the 1999 Constitution by informing the National Assembly of his ill-health to allow the two chambers pass a resolution to empower VP Jonathan to act as acting President was not only laughable but already overtaken by events for two reasons.
First, he said the provisions in Section 145 of the 1999 Constitution are neither mandatory nor directory but simply discretionary.
He added that for the court to order a mandatory injunction being sought by Falana to enforce the exercise of the President's discretionary powers, he (Falana) must proceed under the prerogative writ of mandamus and "this he failed to do and is, therefore, not entitled to the relief."
He explained further that by the nature of the discretionary powers donated to Mr President under the provisions of Section 145 of the 1999 Constitution, he could exercise his powers if he so wished or could decide not to.
Second, he said the relief had been overtaken by events.
According to him, the issue of whether President Yar'Adua was fit or unfit to continue governance while on his sick bed in Saudi Arabia has been settled by the provisions of Section 144 (1) (a) of the 1999 Constitution which expressly gave powers to FEC to so determine.
He said FEC had since December 2 invoked its powers as donated to it by the Section 144 (1) (a) of the 1999 Constitution to pass a resolution to the effect that nothing suggested that President Yar'Adua was incapacitated to step down for VP Jonathan either as substantive president or acting president.
Minutes of FEC tendered in court
He exhibited yesterday before the court the minutes of FEC where the resolution which gave President Yar'Adua the go-ahead to continue with the exercise of his powers from anywhere was stated.
The extract of the minute of FEC where the call on Yar'Adua to resign his appointment was shot down was obtained by Vanguard yesterday and it reads:
Resolution of the Federal Executive Council on the calls for the invocation of Section 144 of the 1999 Constitution of the Federal Republic of Nigeria.
"By leave of the Vice-President, the Attorney-General of the Federation, AGF and Minister of Justice drew the attention of Council to the series of negative comments and speculations in the media about the condition of health of the President.
"He pointed out that contrary to the calls by some people for the National Assembly to invoke the provisions of Section 144 of the 1999 Constitution of the Federal Republic of Nigeria, only the Federal Executive Council was empowered by that section of the constitution to initiate the action of certifying whether or not the President was capable of discharging his duties.
"He, therefore, stressed the need for Council to issue an official statement on the matter.
"Contributing, a member observed that Council's intervention was necessary to put an end to the various speculations.
"He referred to some media reports on the absence of the President at some international meetings and indicated that there was nothing unusual.
"He recalled that at the Commonwealth Heads of Government Meeting, CHOGM, 2009, recently, held in Trinidad and Tobago and the United Nations General Assembly which took place in the United States of America, many Heads of Government were represented by their Minister of Foreign Affairs .
"He, therefore, wondered why some Nigerians should make an issue out of the President's absence at such meetings.
"Members, through their various contributions, unanimously supported the proposal for Council to issue a formal statement to counter the growing bad publicity being given to the views of the opposition on the matter.
"They stated that having reviewed the facts on ground, there was nothing to suggest that the President had been incapacitated.
"They emphasised that all organs of Government were functioning, adding that the negative comments were politically-motivated.
"They, however, expressed the need for caution in engaging the detractors in order not to give them relevance or aggravate the situation.
"In his remarks, the Vice-President stated that the adverse comments being published in the media were aimed at discrediting the Government and the ruling party, the PDP, adding that he would have raised the issue for Council's deliberation if the AGF had not .
"He directed that a formal resolution affirming the President's ability to carry out the functions of his office be prepared.
"He further directed that the AGF, the Secretary to the Government of the Federation, SGF and the Ministers of Information and Communications, Finance, Foreign Affairs and Niger Delta Affairs should jointly present the Council's Resolution and address the press after the meeting.
FEC's resolution on Yar'Adua
"The text of the resolution adopted by the Council reads as follows:
"The Federal Executive Council at its EX (2009) 45th Meeting held today, Wednesday, 2nd December, 2009, took notice of calls by some people for the invocation of the provisions of section 144 of the 1999 Constitution of the Federal Republic Nigeria for Mr President to resign his appointment on the ground of ill_health.
"Council having reviewed all the facts on ground, unanimously resolved that there is no basis for the invocation of provisions of section 144 of the Constitution for the reason that the President has not been found incapable of discharging his functions.
"Council wishes to inform all Nigerians that all organs of Government are functioning and that Government will continue to deliver.
'The Vice President reminded Ministers to defend Government's position appropriately whenever the opportunity arose," added the extract.
Aondoakaa, who was accompanied in court yesterday by the Director of Civil Litigation, Federal Ministry of Justice, Mrs. M. I. Mbamali; Mr. Abdul Malik Akhunegbe and one K. M. Kida, said it was not true that the business of government was suffering.
No vacuum in govt - Aondoakaa
He said contrary to the claim, the government was working very well and that there was no vacuum anywhere.
He said all that needed to be done were being done including the signing of the Appropriation Bill and the swearing-in of the President of the Court of Appeal and the new Chief Justice of Nigeria , Justice Aloysius Katsina-Alu.
When his attention was pointed to the comments by his colleagues to the effect that the outgoing CJN could not swear in the incoming one, he said all those making that claim were legal illiterates who knew nothing about what they were saying.
He said he had always said that the President needed not resign his office because of his hospitalisation when he is not suffering from any infirmity of body or mind as renders him permanently incapable of discharging the functions of his office.
Aondoakaa maintained his stand that President Yar'Adua could perform the functions of his office from anywhere under section (5) (1) and 148 (1) (a) of the 1999 Constitution through his vice and ministers who are members of the Federal Executive Council, FEC.