In Defence Of Jonathan — Prof. Mobolaji Aluko

In the present no-see-no-hear-invalid-President-UMYA crisis in Nigeria, some blame for alleged timidity has been put on Vice-President Goodluck Jonathan.

In the absence of the invocation of Section 145 of the 1999 Constitution, there is no “Acting President” in Nigeria, and the Vice-President cannot and should not pretend to be one, EXCEPT under the Doctrine of Necessity - and he better be sure of that before he acts.  The difference between an “Acting President” and a “Vice-President” is really that there is nothing the Acting President cannot/should not do under the powers given to the substantive President, while there is nothing the substantive President can/should do (short of writing a letter to ask for his powers back) while the Vice-President is “Acting President”.

Prof Bolaji Aluko

In short, there cannot be two persons “acting”, directing the affairs of state, as President at the same time.  On the other hand, a Vice-President can only do those things that are:

(1) Statutorily assigned to him in the Constitution (i.e. Deputy-Chairman of Council of State, National Defence Council, and National Security Council, and Chairman of National Economic Council)
(2)  specifically assigned to him by the President;
(3) Traditionally/occasionally done by the Vice-President in the past in the normal course of the presence or absence of the President if, under some unusual circumstance, the President was unable to specifically assign certain duties to him;
(4) under the Doctrine of Necessity.

There is no argument about the first two situations.  In the third case, the Vice-President may or may not choose to do those acts without specific designation by the President even if he has done them before.  He may then be accused of cowardice or dereliction of duty, but cowardice is not unconstitutional, and the dereliction of duty charge, while political, would probably not stand legal muster.

The fourth case is the dicey one, for this can be done either under legal advice from a designated officer (e.g. the Attorney-General)  and/or an assurance of acceptance by those who he must direct to obey him.

Some three germane examples will suffice, all based on the premise that the substantive President is incapable of carrying out his normal function in each of the examples for whatever reason(s), and that the Vice-President, not being designated as “Acting President”, has to make a determination whether to act or not.

Take the issue of chairing the Federal Executive Council’s regularly-scheduled bi-weekly meetings. The Vice-President is not constitutionally charged to do so, but even a healthy President has designated the VP a number of times to chair the FEC. So even if for whatever reason, he is not specifically mandated to chair a particular or set of FEC meetings, he acts within the reasonable expectation of his office as Vice-President to chair the meetings in the forced absence of the President.  It will be hard to sustain a charge that decisions from that meeting are illegal.

Consequently, I believe that the Vice-President has been acting properly and wisely and legally in chairing the FEC meetings.

Another example is the swearing in of the Chief Justice of Nigeria. Since the President nominates the CJN, and he was confirmed by the Senate, it would appear trite that the Vice-President, already knowing the sentiment of the President, should be able to swear in the CJN if the President were the only person permitted to swear the CJN in. In this case, however, the Oaths Act designates either the President or the CJN (it can only be the current CJN) to swear in the CJN (this can only be an incoming CJN). Now the VP is not constitutionally mandated to do so, and he has never been specifically designated to do such an act before. In fact, the language of the Second Schedule of the Oaths Act shows that the President cannot authorise anybody – not even the Vice-President – to do this job of swearing in the CJN for him, since there is language in this Second Schedule for certain positions requiring oath-taking that specifies for the oath-tenderer to be  “officers authorised by the President” or “The President or a person authorised by him”, a flexibility that is missing when it comes to the swearing in of the CJN. If the law had intended that flexibility, it would have specifically mentioned it.

It, therefore, means in the absence of the substantive President or “Acting President” , it is only the present CJN (or whoever is Acting CJN) - and no one else -  who can swear in the incoming CJN. The fact that no current CJN has sworn in an incoming one before in Nigeria is not a basis for its illegality. After similar situations have occurred without crisis in the United States (for example, Warren Burger swearing in William Rehnquist in 1986.  In the United States, the President never swears in the Chief Justice; it is always an Associate Judge (as Acting CJN) or the current CJN.

Now in order not to have two CJNs at the same time, clearly the tenure of the outgoing CJN should and must automatically cease the minute the incoming CJN completes his Judicial Oath with the statement “So Help Me God”.  No constitutional crisis need be generated thereafter concerning the co-existence of two CJNs. In any case, if any legal furore is raised over the matter as to a one-second, one-minute, one-day or three-day co-existence of two CJNs, by the time the matter winds its way through the courts, the matter would be moot. In any case, what harm has been done? Furthermore, since it is conceivable that the matter could end up in the same Supreme Court, one wonders how or whether that court would rule in a matter so intimately concerning itself in which no harm has really been done.

The bottom-line here is that it is not a battle worth fighting. CJN Kutigi swore in the incoming CJN Katsina-Alu (on 30 December ), even if technically (according to the tenacious Kutigi) there were two CJNs during a 12-hour period; the Vice-President wisely stayed out of it, and we should let the matter rest.

The third example is the issue of signing a Budget Bill - either a Supplementary Budget Bill one or a substantive Annual Budget Bill. Again, the VP is not constitutionally mandated to sign any bill, neither has he done it once before under designation by the President. He is therefore left at the mercy of the Doctrine of Necessity, which decision must have three components: time, urgency and consequence of inaction.

Any Budget Bill covers a particular period of time, with the Annual Bill being over a 12-month period, and a Supplementary Bill over a shorter-period of that same 12-month period.  The urgency comes about with respect to whether the bill should (or is traditionally) passed before the period in question, early enough during the period in question - or has sometimes been the case in Nigeria - way into the period in question, sometimes as late as five or six months into the Annual Budget cycle.  The consequence of inaction might stem from the lack of a continuing expenditure clause which permits expenditures (for example) at the same level of the last budget until a new budget is passed.

What this means under the Doctrine of Necessity is that a Vice-President might not/ should not rush to sign a Budget bill if the traditional or even one-time length of period over which past budgets have been negotiated before signing it has not been reached.  Under the Doctrine of Necessity, therefore, it is prudent to push the time-limits of action, so that politically you are not perceived to be power-hungry and too eager to usurp the powers of the President.  When that time trigger occurs, it is then most likely that it will be at the urging of the official legal officers, and those who must obey your acts without legal question will be much more ready to do so.

In the particular case of Nigeria’s supplementary budget, I understand that its time limit has been extended to 31 March 2010.  I would advise that by end of January, if the substantive President is still missing in action, the Vice-President should sign it under the doctrine of necessity, whether he has been designated Acting President or not.  However he should not sign the Annual Budget until April or May 2010 since Budget signings have been delayed that long even in the presence of healthy Presidents.

Why The Strife?
It is unfortunate that our present PDP government and its Presidency are acting at the edges of the law, making reasonable people tear at each other all over the land, and causing the dissipation of so much energy over trite processes. Not all that is legal is always prudent.  Forty-three days away today from Nigeria under a serious medical condition, the President should by now have invoked Section 145 to designate his VP as the Acting President - as President Reagan did in the United States in 1985 and Bush did in 2002 - so that all of this second-guessing (e.g. “Is it because Jonathan Goodluck is a Niger-Deltan, that is why he has not been appointed Acting President?”) and rage (”Is this not more evidence of Northern arrogance/hegemony/feudalism?”)  and frustration (”See, no one to sign the Supplementary Budget, no one to swear in the Chief Justice, etc.”) in the land would not have been necessary. That is the responsible thing to do. If he could not do so before he left for Saudi Arabia -  he reportedly suddenly took ill, collapsed and had to be rushed abroad, and so his departure for surgery, etc. was not pre-meditated - then certainly the same strength that he mustered to sign the Supplementary Budget Bill some days ago should have been used to sign a hand-over bill once-and-for-all.

Finally, although it should not have been necessary, it might require that for the future, a stipulation be put in our Constitution mandating a President to hand over to the Vice-President as “Acting President” if a medical procedure involving surgery and/or sedation is elected; or that a Vice-President automatically becomes Acting President whenever such a situation is determined to be the case. Furthermore, since many of our bills have a 30-day deadline, if a President is away from Nigerian soil for whatever reason for more than 21 calendar days, an Acting President must be mandated by law. We might also take a cue from the similar circumstances which surrounded Israeli Prime-Minister Ariel Sharon’s own continuing incapacitation, where we may also wish to simplify our laws to avoid the FEC and National Assembly determinations of “permanent” or even “temporary” incapacitance by allowing a technocratic Attorney-General (hopefully that position will be separated from Minister of Justice) and a technocratic Surgeon-General (not a Minister of Health) to do the medical certification and recommendation for incapacitance.

And while on the matter of Chief Justices, it is interesting to note that of our 11 indigenous CJNs since 1958, seven have been under the Colonials and the Military, for a total of 46 years out of 51 years and four CJNs under civilians in five years! That turnover in CJNs under civilians is unhealthy, and has been because of the practice of choosing the most senior associate Justice willy-nilly as CJN, no matter how close he is to the retiring age of 70 years. We may want to change our law or practice to require that if you cannot serve as CJN for 5 years, you will not be considered, even if you are the most senior Justice. If you choose to retire, fine, but we will pay you CJN salary for the period you would otherwise have been CJN!

I rest my case.

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