13 January 2010

Nigeria: Jonathan Takes Over As Acting President

Abuja — The Federal High Court sitting in Abuja yesterday ordered that Vice-President Goodluck Jonathan should commence exercising the full powers of the president pending the return of Umaru Musa Yar'Adua, the ailing president now receiving treatment in Saudi Arabia.

In a ruling he delivered yesterday, the Chief Judge of the Federal High Court, Justice Daniel Abutu, observed that Yar'Adua did not transmit any letter to the National Assembly informing it that his deputy should begin to exercise his duties pending his return from Saudi Arabia, where he is receiving medical treatment.

The order seems to have put to rest the controversy surrounding the refusal of President Yar'Adua to transfer power to his deputy before embarking on medical trip was laid to rest.

Yar'Adua has been absent for 52 days today.

Justice Abutu declared that the vice-president could become the acting president but could only carry out the functions of the president in his absence, which he has been doing and should continue to do as enshrined in section 5 (1) of the 1999 constitution.

He also said that Section 145 pertains to a situation where the vice-president could be elevated to the position of president on some conditions.

Justice Abutu had earlier reserved yesterday for mention in the suit but shortly after he adjourned the matter for today, he communicated to the parties in the matter through their lawyers to file and exchange written addresses in respect of the originating summons and come back Tuesday to argue same. This they did yesterday.

Defendants in the suit were the Attorney-General of the Federation (AGF) and the Executive Council of the Federation.

The Attorney-General and Minister of Justice, Chief Michael Kaase Aondoakaa (SAN), had appeared in person with other lawyers in his ministry, including the Director of Civil Litigation, Mrs. Agatha Mbamali.

Aondoakaa, in his written address in response to the plaintiff's originating summons dated January 7, 2010, had said that it was mischievous for the plaintiff to claim that President Yar'Adua was temporarily incapable of performing the functions of his office since the plaintiff lacked the constitutional capacity and competence to do so.

"We submit that the only body which may pronounce on the capacity of the president to discharge his functions is the Federal Executive Council as set up in section 144 of the 1999 constitution of the Federal Republic of Nigeria", he had said.

He told the court: "plaintiff's affidavit didn't disclose specific allegation or any infringement or anticipated infringement on his right or a personal injury emanating from the defendant's action."

Counsel to Mr. Christopher Onwukwe, the plaintiff, Barrister Amobi Nzelu, said that in the present circumstances where the president had not written any letter to the Senate and the House of Representatives informing them that his deputy should oversee the affairs of the state pending his return, it was a convenient way for the court to make an order empowering Jonathan to exercise the powers of president pending Yar'Adua's return to office.

The plaintiff, in the suit number FHC/ABJ/CS/2010, via an originating summons, had asked the court to declare that in the absence of the president and in view of Sections 5 (1) and 148 (1) of the 1999 constitution, the vice-president could exercise the powers vested in the president in the latter's absence.

The suit, which had a 13-paragraph affidavit sworn to by the plaintiff himself, noted, "President Yar'Adua has travelled to Saudi Arabia since November 23, 2009 for medical treatment and has not returned since then."

Against this backdrop, the plaintiff had asked the court for the following reliefs:

• a declaration that by the combined provisions of sections 5 (1) and 148 (1) of the constitution of the Federal Republic of Nigeria 1999, the vice-president could exercise the powers vested in the president in the absence of the president, having regard to the circumstances of this suit;

• a declaration that the vice-president could lawfully discharge any or all the functions of the president in the absence of the president in the interest of peace, order and good governance of the federation pending when the president resumed and took over;

• that the present scenario was an indication that there was no head of government and such a situation had led to a major crisis, capable of threatening the corporate existence and stability of the Federal Republic of Nigeria, and

• that the vice- president had refused/neglected/failed to exercise any or all the executive powers vested in the president for the president in his absence.

In a similar case, a Lagos-based lawyer, Mr. Femi Falana, had dragged the Federal Government to the Federal High Court in Abuja, seeking to compel Yar'Adua to inform the National Assembly about his hospitalisation and empower Jonathan to take charge of governance.

In a suit number FHC/ABJ/CS/732/09 filed last week, the plaintiff asked the court to hold that it was illegal for the president to travel abroad for medical treatment without transmitting information about it to the National Assembly.

Falana also asked for an order of mandatory injunction compelling Yar'Adua to transmit a written declaration to the Senate president and the speaker of the House of Representatives that based on his medical trip, Jonathan should be empowered to lead the nation as acting president.

The plaintiff's lawyer, Mr. Sola Egbeyinka, had filed the suit on behalf of the West African Bar Association president and joined the Attorney-General of the Federation as the sole defendant.

The case comes up today.

Meanwhile, Mr. Aondoakaa has said he had been vindicated by yesterday's ruling.

"It looks the judgement has vindicated my position all along to say that no other person or authority can question the vice-president where he is exercising the power of the president," the minister said.

"The court also went further to make its finest declaration, which has settled the matter."

He believes that with the court's declaration, the vice-president can now carry out all the functions of the president.

According to the minister, "The issue of section 145 has also been clearly stated that it is a discretional provision that the president may wish to transmit a letter to the National Assembly."

Also reacting, Barrister N. Nzelu said what the court did was to give legal backing to the vice-president's action, so that henceforth Jonathan has the constitutional power to act in full capacity as president and touch those areas he has always feared to act upon.

Meanwhile, counsel to Hon. Farouk Aliyu, Barrister Bamidele Aturu, said yesterday that they would continue with their case on the president's illness.

"Though there are conflicting reports as to the actual orders made by the learned Chief Judge of the Federal High Court, our enquiries from very reliable sources confirmed to us that the Chief Judge did not make any order for the vice-president to be sworn in as some people are suggesting," Aturu said in a press statement.

"He only stated that the vice-president can perform the functions of the president in his absence. The order is yet very cloudy at best. It is not clear if he addressed sections 144, 145 and 146 of the constitution.

"In the circumstances as the leading counsel to Hon. Aliyu and Mr Gabbas, I have the responsibility to inform the public that we shall press ahead with our clients' case which comes up tomorrow before the same court as our clients are seeking fundamental constitutional questions that are not coterminous with the orders made by the Federal High Court this morning. Our clients are insisting that the circumstances surrounding the absence of the president in the last 50 days or so constitute permanent incapacity."

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