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Author Name: Mobolaji E. Aluko
Number of articles: 33
In the present no-see-no-hear-invalid-President-UMYA crisis in Nigeria, some blame for alleged timidity... (0) Comment


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The Yar'Adua Presidency Saga - and Whether the Nation is Really Stuck
Author: Mobolaji E. Aluko | December 17, 2009



On or about November 23, 2009, President Yar'Adua proceeded on medical leave (or vacation) for maybe the sixth time in his two-year presidency. This time, as in a few other times, he went to Saudi Arabia, but at some other times, he had gone to Germany. The difference now is that after some hemming and hawing, we citizens of Nigeria have been: (1) explicitly told OFFICIALLY that he suffers from acute pericarditis (heart inflammation), confirming earlier (but furtive) reports about his multiple ailments (including a chronic kidney condition) brought about by a pre-existing Churg-Strauss auto-immune disease; (2) regaled with rumors about the seriousness of his medical condition. Not even a picture of him sitting up watching TV (football) or reading a dated newspaper (ThisDay?) has been given to reassure the nation otherwise. (3) confronted recently by a bold public demand by fifty-odd and serious-minded politicians and activists urging the president to transmit a letter of power transfer to an Acting President (ie to the Vice-President), to resign or be compelled to vacate the position altogether. It is unfortunate, some would say even irresponsible and a reckless endangerment to the Republic, as in previous times, that he chose not to do what American Presidents Reagan and Bush did in 1985 and 2002 respectively, that is write transmission letters ahead of his medical examinations assigning all his presidential duties to the Vice-President as required by the Constitutions of both countries when he was still in control of all of his faculties. ARE WE STUCK? It would now appear that we are STUCK as to what one can reasonably expect Yar'Adua to do - or the next steps: 1. He apparently won't resign based on permanent incapacitation, either because he is unwilling to (since he is and/or his handlers, particularly his wife Turai, are HOPEFUL of his recovery) or he is even currently UNABLE to (because he is too ill at the moment.) Otherwise, this would lead to a VACANCY and permanent replacement by the Vice-President. 2. He cannot transmit a letter of medical leave or temporary incapacitation because he is UNABLE to (because he is too ill at the moment). Otherwise this is what would trigger a temporary replacement by the Vice-President as "Acting President." 3. The Federal Executive Council (FEC) will not INITIATE a medical assessment that could trigger a determination of permanent medical incapacitation and declaration of vacancy or not (this is the only outcome of an FEC action; not "Acting Presidency") because the members are HOPEFUL of his recovery, not to talk of political considerations in the event that he does SUDDENLY recover (even if temporary). In short, who among them would first bell the cat in that circumstance and survive the surprise recovery? THE CHOICES Pragmatically, therefore, we are left with four choices: 1. pray for him to sufficiently recover permanently and fully, so that all these permutations become moot points; 2. pray for him to to recover sufficiently and if even temporarily, then do the right thing and either resign or transmit said letter. The odds are seriously against those happening if he temporarily recovers. 3. the unthinkable: wait for him to die. 4. another unthinkable: be confronted with a military coup. I see almost no other choices. Really, the courts cannot compel him or the FEC to do the discretionary; what we know they should do if they DON'T want to do it. We have an Executive (President) who will not transmit a letter of medical leave or resignation. We have his FEC (the Presidency) that will not initiate a medical assessment of the President's health for the Legistature to act. In fact, the Attorney-General has already said that the President can exercise power from ANYWHERE in the world, and can be absent for up to a year. We have the President's Legislative Adviser former Senator Abba-Aji who has said that the President (while Governor of Katsina) had been away before from Katsina for six months. Yar'Adua has been away for only three weeks, so why the hullaballoo, Abba-Aji seems to ask, as if Nigeria is Katsina State? Another minister (Ruma), ostensibly referring to Dr. Nnamdi Azikiwe's medical leave from October 1965 up to the coup of January 15, 1966, indicated that another President had been away for three months at a time anyway. The Senate President David Mark has indicated that it is almost treasonable to talk about these matters and has asked for prayers only. The Speaker of the House Dimeji Bankole yesterday ruled out of order a Minority Leader Femi Gbajabiamila who tried to broach the matter in the chambers. Surely, we Nigerians cannot continue to act like slaves within our country, begging for everything from the VERY PEOPLE that we theoretically have said we put there to serve us. The Judiciary to the Rescue We would be stuck except for one more measure: ask the courts to DECLARE the presidency VACANT. Who else is left but the Judiciary - and WE THE PEOPLE? This is why as many NIGERIANS as possible should sign on to Mr. Falana's petition - and make it a class-action suit RATHER than one in which Falana is sole plaintiff. He might even unload himself as plaintiff and simply be the lawyer of note, a ploy on behalf of others in which he has had greater success, including a recent Diaspora voting case against the same Attorney-General and INEC! In any case, his present Suit No. FHC/ABJ/CS/732/09 of December 15, 2009 against the Attorney-General of Nigeria seeks clarifications about: 1) Whether the refusal or failure of the President to transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives before proceeding on medical vacation on or before November 23, 2009 is not a violation of S. 145 of the Constitution of the Federal Republic of Nigeria 1999. 2) Whether the Vice President, Dr Goodluck Jonathan can discharge any of the functions of the President when a written declaration has not been transmitted to the President of the Senate and the Speaker of the House of Representatives by President Umaru Musa Yar’adua pursuant to Section 145 of the Constitution of the Federal Republic of Nigeria 1999. 3) Whether the weekly meetings of the Federal Executive Council held since November 23, 2009 and the decisions taken thereat are not illegal and unconstitutional by virtue of Section 148 of the Constitution of the Federal Republic of Nigeria 1999. It then seeks reliefs viz: 1) A DECLARATION that the failure or refusal of President Umaru Musa Yar’adua to transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives before proceeding on medical vacation on November 23, 2009 is illegal and unconstitutional as it violates Section 145 of the Constitution of the Federal Republic of Nigeria 1999. 2) A DECLARATION that by virtue of Section 145 of the 1999 Constitution of the Federal Republic of Nigeria the Vice President cannot discharge any of the functions of the President without a written declaration transmitted to the Senate President and the Speaker of the House of Representatives by the President to the effect that he is proceeding on vacation or that he is unable to discharge his functions. 3) A DECLARATION that the meetings of the Federal Executive Council held since November 23 2009 till date, and the decisions taken thereat are illegal and unconstitutional as they violates Section 148(2) of the Constitution of the Federal Republic of Nigeria 1999). 4) AN ORDER OF MANDATARY INJUNCTION compelling the President Alhaji Umaru Musa Yar’adua to transmit a written declaration to the Senate President and the Speaker of the House of Representatives that he has proceeded on medical vacation to empower the Vice President, Dr Goodluck Jonathan to discharge the functions of the President as the Acting President of Nigeria. to which I believe should be added a fifth relief, namely: 5) A DECLARATION that the position of the Presidency is VACANT, and reason to be shown why the Vice-President should not be sworn in IMMEDIATELY as President to fill the position, in consonance with the SPIRIT of Sections 135 and 144-146. EPILOGUE It is understandably difficult, particularly for us Africans with our in-built traditional sensitivities and sensibilities, to discuss matters like this where politics, humanity and legality intersect. In fact, in the short time of Nigeria's 14-year presidential system (1979-1983, 1999-2009), we have already been confronted with many of what the USA has been confronted over its own 220 years (1789 - date) - military coup in 1979 (President Nixon 1969-1944 is said to have contemplated orchestrating one during his tormented period); threats of presidential impeachment during Obasanjo's regime (Nixon was threatened with impeachment but resigned before it in 1974; Presidents Andrew Johnson 1829-1837 and Bill Clinton 1993-2001 were impeached in 1868 and December 1998 respectively by the U.S. House of Representatives, but acquitted by the Senate in May 1868 and February 1999 respectively), successive budget impoundments, third-term elongation attempt under Obasanjo (Reagan 1981-1989 briefly contemplated it), and now talks of premature presidential succession under Yar'Adua (in the US, four presidents Harrison 1841, Taylor 1849-1850, Harding 1921-1923 and Franklin Roosevelt 1933-1945 have died in office, and four, Lincoln 1861-1865, Garfield 1881, McKinley 1897-1901 and Kennedy 1961-1963 have been assassinated). In short, the nation has been needlessly put under constitutional stress so early. But while we wish President Yar'Adua (2007-?) speedy recovery from his current poor health condition being treated in Saudi Arabia - and without trying to pre-empt the ruling of the courts - we firmly believe that Nigeria deserves full constitutional governance at this time, and therefore requires orderly transfer of full powers to an "Acting President" without further delay, if not under action from the Federal Executive Council and the National Assembly, then under action forced by the courts. And there you have it. Season's greetings everyone. Bolaji Aluko _____________________________________________________________________ APPENDIX 1. The petition for class-action will be found in: http://www.petitiononline.com/FalanaAG/petition.html 2. The full text of Falana's law suit will be found in: http://www.nigerianmuse.com/20091215230257zg/nigeriawatch/falana-s-suit-against-attorney-general-of-nigeria-in-connection-with-president-yar-adua-s 3. Some relevant sections of the 1999 Constitution are as follows:--- http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm Section 135. (1) Subject to the provisions of this Constitution, a person shall hold the office of President until - (a) when his successor in office takes the oath of that office; (b) he dies whilst holding such office; or (c) the date when his resignation from office takes effect; or (d) he otherwise ceases to hold office in accordance with the provisions of this Constitution. Section 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, the President of the Senate shall within seven days of the receipt of the notice cause a copy thereof to be served on the holder of the office and on each member of the National Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office to be served on each member of the National Assembly. (3) Within fourteen days of the presentation of the notice to the President of the Senate (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice) each House of the National Assembly shall resolve by motion without any debate whether or not the allegation shall be investigated. (4) A motion of the National Assembly that the allegation be investigated shall not be declared as having been passed, unless it is supported by the votes of not less than two-thirds majority of all the members of each House of the National Assembly. (5) Within seven days of the passing of a motion under the foregoing provisions, the Chief Justice of Nigeria shall at the request of the President of the Senate appoint a Panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provide in this section. (6) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person and be represented before the Panel by legal practitioners of his own choice. (7) A Panel appointed under this section shall - (a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the National Assembly; and (b) within three months of its appointment report its findings to each House of the National Assembly. (8) Where the Panel reports to each House of the National Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter. (9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report at the House the National Assembly shall consider the report, and if by a resolution of each House of the National Assembly supported by not less than two-thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report. (10) No proceedings or determination of the Panel or of the National Assembly or any matter relating thereto shall be entertained or questioned in any court. (11) In this section - "gross misconduct" means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct. Section 144. (1) The President or Vice-President shall cease to hold office, if - (a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice-President is incapable of discharging the functions of his office; and (b) the declaration is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the President of the Senate and the Speaker of the House of Representatives. (2) Where the medical panel certifies in the report that in its opinion the President or Vice-President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice thereof signed by the President of the Senate and the Speaker of the House of Representatives shall be published in the Official Gazette of the Government of the Federation. (3) The President or Vice-President shall cease to hold office as from the date of publication of the notice of the medical report pursuant to subsection (2) of this section. (4) the medical panel to which this section relates shall be appointed by the President of the Senate, and shall comprise five medical practitioners in Nigeria:- (a) one of whom shall be the personal physician of the holder of the office concerned; and (b) four other medical practitioners who have, in the opinion of the President of the Senate, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions. (5) In this section, the reference to "executive council of the Federation" is a reference to the body of Ministers of the Government of the Federation, howsoever called, established by the President and charged with such responsibilities for the functions of government as the President may direct. Section 145. 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. Section 146. (1) 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 of this Constitution. 5. Some Model Letters written by Reagan and Bush SYNOPSIS George H.W. Bush, as Vice President was the first person to become 'Acting President' under the provision of the 25th amendment on July 13, 1985 following President Ronald Reagan's writing of an invocation letter. Vice President Richard Cheney was the second person to become Acting President under the provision of the 25th amendment on June 29, 2002 following President George Bush's writing of an invocation letter. PRESIDENT RONALD REAGAN (1981-1989) http://en.allexperts.com/e/r/re/reagan_transfer_of_power.htm On July 12, 1985, President Ronald Reagan underwent a colonoscopy procedure, during which a pre-cancerous tumor known as a villous adenoma was discovered. The following day, July 13, 1985, Reagan underwent surgery to remove the tumor, leading to the first invocation of Section 3 (the "Acting President" provisions) of the 25th amendment. Background On the afternoon of July 12, 1985, Dr. Edward Cattow advised President Reagan of the existence of the tumor, and that it could be removed only by performing major surgery. Reagan was advised he could undergo surgery immediately or in two to three weeks. Reagan, desiring to avoid going through the preparatory regimen a second time, elected to undergo surgery the following day. Reagan then consulted with White House Chief of Staff Donald Regan, Attorney General Ed Meese, legal counsel Fred Fielding and others, most of whom recommended the invocation of the amendment. While Reagan thought it might set an undesirable precedent to invoke the amendment, ultimately the decision was made to transfer power and two letters were drafted: one that explicitly invoked Section 3 of the 25th amendment, and one which did not. At 10:32 a.m. the following morning (July 13, 1985), Reagan signed the second letter which is cited below. It was transmitted to the House Speaker and President pro tempore at 11:28 a.m., in accordance with the guidelines and requirements of the 25th amendment. Vice President George H. W. Bush was notified of his status at 11:50 a.m. - 22 minutes after becoming Acting President. At 7:22 p.m., Reagan transmitted another letter to the House Speaker and President pro tempore in accordance with the guidelines and requirements of the 25th amendment, declaring himself capable of resuming presidential authority. Below is the text of each letter: ______________ Invocation Letter July 13, 1985 (1128 hours) Dear Mr. Speaker (Mr. President:) I am about to undergo surgery during which time I will be briefly and temporarily incapable of discharging the Constitutional powers and duties of the Office of the President of the United States. After consultation with my Counsel and the Attorney General, I am mindful of the provisions of Section 3 of the 25th Amendment to the Constitution and of the uncertainties of its application to such brief and temporary periods of incapacity. I do not believe that the drafters of this Amendment intended its application to situations such as the instant one. Nevertheless, consistent with my long-standing arrangement with Vice President George Bush, and not intending to set a precedent binding anyone privileged to hold this Office in the future, I have determined and it is my intention and direction that Vice President George Bush shall discharge those powers and duties in my stead commencing with the administration of anesthesia to me in this instance. I shall advise you and the Vice President when I determine that I am able to resume the discharge of the Constitutional powers and duties of this Office. May God bless this Nation and us all. Sincerely, :Ronald Reagan Revocation Letter :Dear Mr. Speaker (Mr. President:) Following up on my letter to you of this date, please be advised I am able to resume the discharge of the Constitutional powers and duties of the Office of the President of the United States. I have informed the Vice President of my determination and my resumption of those powers and duties. Sincerely, Ronald Reagan Invocation myth Some have debated whether or not Reagan's actions actually constituted an invocation of the 25th Amendment. This myth stemmed from the final sentence of the second paragraph of the letter transferring power: "I do not believe that the drafters of this Amendment intended its application to situations such as the instant one." However, in the remainder of the document his intent is unequivocal, a fact that was later substantiated by Reagan's own post-presidential writings and statements on the subject. _________________ PRESIDENT GEORGE BUSH (1989-1993) http://en.allexperts.com/e/b/bu/bush_transfer_of_power.htm Bush transfer of power The Bush transfer of power occurred on the morning of June 29, 2002, when President George W. Bush temporarily transferred the powers of the office to Dick Cheney. Bush was the second President to temporarily transfer power to the Vice President. Background President Bush was scheduled to undergo a colonoscopy procedure on the morning of June 29, 2002, during which time he would be under light sedation. Just nine months after the September 11, 2001 attacks, and with U.S. troops at war in Afghanistan, President Bush was intent on ensuring that in the event of a crisis there would be no question of Vice President Cheney's authority. When asked by the press about the decision to transfer power, Bush replied "I did so because we're at war and I just want to be super — you know, super cautious.". At 7:09 a.m. that day, Bush signed a letter to invoke the 25th Amendment. He then gave the letters to White House Counsel Alberto Gonzalez, who transmitted them by to House Speaker Dennis Hastert, President pro tempore Robert Byrd, and Vice President Dick Cheney. Gonzales then called Hastert's and Byrd's offices to confirm receipt of the letters. He then called the Vice President to advise him of the transfer. When the speaker and president pro-tempore received the letters, executive authority was transferred to Vice President Cheney, who became Acting President. Unlike the letter drafted by Ronald Reagan which temporarily transferred power to George H. W. Bush on July 13, 1985, there was no perception of ambiguity regarding Bush's intent, as he explicitly cited Section 3 of the 25th Amendment. Following the procedure, at 9:24 a.m. Bush transmitted a second letter to the House Speaker and President pro tempore, formally declaring himself capable of resuming presidential authority. Although the public was aware that the temporary handover would take place, for security purposes, the time that it actually occurred was not revealed until after Bush resumed duties as President. The text of each letter is below. Invocation letter June 29, 2002 (0709 hours) Dear Mr. Speaker (Mr. President:) As my staff has previously communicated to you, I will undergo this morning a routine medical procedure requiring sedation. In view of present circumstances, I have determined to transfer temporarily my Constitutional powers and duties to the Vice President during the brief period of the procedure and recovery. Accordingly, in accordance with the provisions of Section 3 of the Twenty-Fifth Amendment to the United States Constitution, this letter shall constitute my written declaration that I am unable to discharge the Constitutional powers and duties of the office of President of the United States. Pursuant to Section 3, the Vice President shall discharge those powers and duties as Acting President until I transmit to you a written declaration that I am able to resume the discharge of those powers and duties. Sincerely,:GEORGE W. BUSH Revocation letter :Dear Mr. Speaker (Mr. President:) In accordance with the provisions of Section 3 of the Twenty-Fifth Amendment to the United States Constitution, this letter shall constitute my written declaration that I am presently able to resume the discharge of the Constitutional powers and duties of the office of President of the United States. With the transmittal of this letter, I am resuming those powers and duties effective immediately. Sincerely, :GEORGE W. BUSH

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NGEX welcomes and encourages reader comments. Permission to post reader comments is assumed, and we reserve the right to excerpt or edit for clarity any comments that are posted. We won't be able to publish all comments. And we can't vouch for the accuracy of posts from readers. Nickname or Name will be used to identify your post.
Agunwa    Lagos, Nigeria    December 27, 2009
Sir Bolaji and Falana; Come down to mother earth. You are both in Nigeria and not in the USA. We have Yaradua and not Reagan. All the big english you are writing are very interesting but please, begin landing on the earth and face the reality of Nigeria.

Our President is sick, period! If he recovers, good for Nigeria, if not, good for Nigeria. Let us wait and see.
gaga ekeh    Atlantis, USA    December 17, 2009
Sir Bolaji, The "other" choice is to organize an opposition that works. Democracy grows through opposition. Those of you who take the Federal Government seriously operating under the Abubakar constitution are only being faced with the legitimacy of your choice.

The constitution is clear on what Yaradua ought to do under these circumstances, but a constitution that does not represent the people's will cannot be adhered to. If the leader of the Nigerian opposition, wherever that exists, found himself ill and was unable to broadcast his end-of-year Radio Hajia, say, opposition message, that would concern me.

Under the Abubakar constitution, however, our great leader is on vacation to study medicine in Arabia... not Kaduna, because the hospital in Kaduna is also operating, Sir Bolaji, under the Abubakar constitution.
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