Governor Arch Mohammed Namadi Sambo. (Photo Courtesy Kaduna State)

Lagos — Unless the Vice-Presidential nominee, whose announcement is expected today, belongs to PDP and is sponsored by the PDP, President Jonathan cannot nominate him and forward his name to the National Assembly for approval.

The death of President Umaru Musa Yar'Adua in the evening of Wednesday, May 5, 2010, at the Presidential Villa, Abuja and the subsequent swearing in of Dr. Goodluck Jonathan as President and Commander-in-Chief of the Armed Forces of Nigeria, on Thursday, May 6, 2010, by the Chief Justice of Nigeria, have opened a new chapter in the constitutional development of our democracy and of our country, Nigeria.

Of course, it is a known fact that before then Dr. Goodluck Jonathan was the Vice-President and Acting President respectively during the tenure of late President Yar'Adua. He has therefore automatically ascended to the office of President by virtue of section 146(1) of the 1999 Constitution which states:

"The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 or 144 of this Constitution."

The provision is very clear and unambiguous and cannot pose any problem to students of law, lawyers or even the courts in its interpretation.

However, what is intriguing, even as innocuous as it seems, is the procedure for picking a person to fill the vacant office of the Vice-President. Section 146(3) states:

"Where the office of Vice-President becomes vacant -

1. by reason of death or resignation, impeachment, permanent incapacity or removal in accordance with section 143 or 144 of this Constitution.;
2. by his assumption of the office of President in accordance with subsection (1) of this section; or
3. for any other reason, the President shall nominate and, with the approval of each House of the National Assembly, appoint a new Vice-President".

The provision poses no problem until one reads the provisions of section 142 which stipulates the constitutional necessity and requirements of the office of Vice President. The necessary question here is whether, in nominating a person as Vice-President under section 146(3), to be approved by the National Assembly, the discretion of the President is circumscribed in any way. In other words, can the President nominate whoever he likes, irrespective of age, party affiliation, criminal record, etc?

This question has become necessary because going strictly by the provisions of section 146(3), the requirements or qualifications of the person to be nominated as Vice President are not stated. However, it cannot be disputed that the framers of the Constitution could not have intended that the type of Vice-President to be nominated under section 146(3) should be different from the type of candidate to be nominated as Vice-President to stand for election with the President under section 142. Anything to the contrary will surely lead to absurdity.

It is the law that, in construing any provision of the Constitution, related sections must be taken into consideration and one section cannot be interpreted in a manner that will defeat the intent and purpose of another section. See Nafiu Rabiu v State (1981) 2 NCLR 293 and Abubakar v A.G Federation (2007) 3 NWLR (Pt.1022) 601 at 635 paras B and C.

It is now necessary to examine section 142 of the 1999 Constitution which provides for the office of the Vice-President and it states:

"142. Nomination and election of Vice-President

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.

The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President shall apply in relation to the office of Vice-President as if references to President were references to Vice-President."

It is submitted that the provisions of section 146(3) above must be read in conjunction with section 142 to determine who can become Vice-President in a situation where the President dies in office as in the case of Yar'Adua and the previous Vice-President is sworn in as President as in the case of Dr. Goodluck Jonathan. If these sections are read together, one must come to the inevitable conclusion that the discretion of Dr. Goodluck Jonathan who nominates and even that of the National Assembly that approves the new-Vice President, are highly circumscribed by the provisions of the Constitution. One can therefore go to court to challenge the nomination and approval of a Vice-President under section 146(3) who does not qualify for nomination as a candidate for election to the office of the Vice-President under section 142.

Going by the provision of section 142(2), it is therefore necessary to examine the provisions relating to the qualification for election to the office of President which also applies to the office of the Vice-President. The relevant provision in this regard is section 131 which states:

"Qualification for election as President

A person shall be qualified for election to the office of President if -

1. he is a citizen of Nigeria by birth;
2. he has attained the age of forty years;
3. he is a member of a political party and is sponsored by that political party; and
4. he has been educated up to at least School Certificate level or its equivalent."

The provisions of paragraphs (a), (b) and (d) above are very straight forward. But then how can paragraph (c) above be read in conjunction with section 146(3)? This is where the problem lies. In other words, does the PDP have a role to play in the nomination and approval of the new Vice-President?

Strictly under section 146(3) the PDP has no role to play. But if we agree that section 146(3) must be read in conjunction with sections 142 and 131 above, then we must come to the inevitable conclusion that, unless the person that is to become the new Vice-President belongs to PDP and he is actually sponsored by the PDP, Dr. Goodluck Jonathan cannot nominate him and forward his name to the National Assembly for approval.

I have come to this conclusion, because looking at some practical examples, one will see the wisdom in insisting that the provisions of section 131 regarding sponsorship by the party must be complied with. Assuming for instance, Jonathan decides to pick one of the members of the "Reform Group" or any other dissident group that has been suspended or expelled from the PDP as new Vice-President and shortly after (God forbid) we lose Goodluck Jonathan as President by resignation, death or impeachment, it would mean that a new President would be sworn in that belongs to no political party!

In practical terms therefore, I submit that before the new Vice President is sworn in, it is either,

Goodluck Jonathan must write to the PDP informing them of his choice of a new Vice-President and the party MUST write back confirming the membership of that person as a party man and expressing their approval of the choice before the name is forwarded to the National Assembly for approval, or

The PDP MUST sponsor, approve and forward a number of names to Goodluck Jonathan from which Goodluck Jonathan will nominate a person to be the new Vice-President and forward the name to the National Assembly for approval, or

The National Assembly, upon receiving the name of a person nominated by Goodluck Jonathan to be the new Vice-President, MUST write to the PDP seeking for confirmation of the person as a member of the PDP and the party's position regarding his nomination before going ahead to approve such nomination.

I submit that it is only a strict compliance with one of the steps as enumerated above that will accord with the letters and spirit of the constitution.

-Keyamo, a lawyer and activist, wrote from Abuja