It said that there was no basis for Yar’Adua to have failed to empower Vice-President Goodluck Jonathan to act as President in line with Section 145 of the 1999 Constitution.
The section states: “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.”
The NBA made the remark amid concerns by many Nigerians that today marks the 42nd days since the President travelled to Jeddah for treatment of acute pericarditis, an inflammation of the outer membrane of the heart at the King Faisal Specialist Hospital.
Some of the Nigerians had also pondered on the direction of the country without the President in the saddle especially as today marks the first working day of the year.
The National President of the NBA, Mr. Rotimi Akeredolu (SAN), who spoke with one of our correspondents on the telephone, said the association had filed an action in court over Yar’Adua’s failure to transmit to the National Assembly that Jonathan would be the acting President.
Akeredolu said, “We in the NBA are of the firm view that the provision of the constitution must be complied with. The President cannot stay away on health grounds indefinitely.
“The moment the President is on admission in a hospital, he is incapacitated. And whether it is for recuperation or treatment of an ailment, he is not in control. This development cannot be wished away. That is enough for section 145 of the constitution to be invoked.
“It is unfortunate that some people cannot appreciate the word ‘incapacite.’ According to the Oxford Advanced Dictionary incapacitate means “to make somebody unable to live or work normally.” Let the National Assembly members check the dictionary meaning of the word. The dictionary gives an example: “He was incapacited by old age and sickness.” When you are admitted into a hospital, you cannot perform your duties or functions; you are not in control of your affairs muchless of the affairs of a nation.
“And that explains why the NBA has gone to court to say that there is an omission on the part of the President to refuse to transmit to the National Assembly that Jonathan should act as President in his absence.”
Just as the NBA president spoke, two Senior Advocates of Nigeria—Prof. Itse Sagay and Dr. Konyinsola Ajayi — said the President could not continue to rule the country from a foreign land.
But three other SANs —Mallam Yusuf Ali, Chief Tony Idigbe and Mr. Tayo Oyetibo — disagreed with them, saying there was no time limit for the President to be out of the country.
Sagay, who was the first to comment, said, “As in the spirit of the 1999 Constitution, the President is expected to rule from his country and not from the Diaspora. What is happening is against the constitution. It is anarchy and the development may lead to many lapses in governance.
“But there is a limit to whether his absence can continue indefinitely. It will get to a situation where the present arrangement will boomerang. It will soon get to a situation where if this scenario continues, there will be a serious constitutional and national crisis.
For Ajayi, “It is not possible for the President to stay abroad for a long time. I wish him well to come back to resume. The constitutional way out is for the Vice-President to be in charge of governance, otherwise, the development will lead to anarchy.
“The constitution recognises an acting President if the President is away. I do not foresee any constitutional crisis if the vice- president takes over except he does certain things which he is not supposed to do.”
The President of the West African Bar Association, Mr. Femi Falana, also said that it was patently wrong for the President to govern the country from a foreign land.
Similarly, Oyetibo said, “The constitution does not expressly stipulate the number of days for which the President can remain outside the country. But if the President remains outside the country beyond a reasonable time and during that period, he does not perform the functions of his office nor address a communication to the National Assembly to the effect that he is on vacation or otherwise unable to perform the functions of his office as required by section 145 of the constitution, he would be deemed to guilty of gross misconduct within the meaning of section 143 (11) of constitution.
“What is a reasonable time is a question of fact which would be determined on the facts of each case. In my view, it is most unreasonable and politically immoral for the President to remain outside the country for more than 40 days and refuse to address a communication to the National Assembly to that effect.
“It is time for the National Assembly to invoke the provisions of section 142 of the constitution against the President.”
But Ali, who admitted that Yar’Adua’s absence was affecting governance in the country, wondered why there should be so much furore over his stay abroad on medical grounds.
He said, “The constitution does not make provisions for the number of months and days the President can stay abroad. It cannot be doubted that his absence is affecting the engine of governance.
“It is the issue at stake which is the ill-health that is provoking all those concerns. If, for instance, he goes on an extended tour of nations, nobody will tell him to hand over power. It is because of his ill-health. What is going on now is an admixture of politics and other issues.
Idigbe said, “The issue is not the number of days he (Yar’Adua) has stayed abroad; the issue is and should be whether he still has the capacity to govern.
“From my understanding of the constitution, the Federal Executive Council has a role to play in this matter by virtue of section 145 of the 1999 Constitutution. There is no limit to the number of days the President could stay away from the country.
“It is the duty of FEC to make a public statement on this matter using a medical report to ascertain the President’s state of health. Has FEC done this? The President could stay as long as two years under the protection of the country, assuming that the country is at war.”
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