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 10, 2007
