Posted December 27th, 2006

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Dr. Jones O. Edobor

It is disheartening to observe what current politicians are recklessly doing to Nigeria and to our hard earned democracy – shamelessly exhibiting to the whole world that we are basically incapable of running our affairs peacefully. It is this over-blown ego and greed of African leaders and their inability to accept and obey constitutional provisions that have led to several crises and to underdevelopment in the continent. It is indeed a shame that leaders who should lead by good examples are often the biggest law breakers who openly display arrogant disregard for the laws of the land. The moment they assume power, they consider themselves above the laws of the land and indulge in a system of lawlessness forgetting that when court’s orders for those who peacefully go to courts to seek redress for wrongs done them are ignored, they are creating an atmosphere that may sooner or later compel the aggrieved citizens – to take laws into their own hands (arms) to enforce their rights. We cannot pretend not to know the consequences of such executive rascality. We have enough examples across Africa and even in Nigeria’s history to learn from.

We seem a people who forever are incapable of learning. We are underdeveloped because too often we put our individual short term interests before that of the state. It is indeed sad to follow the deterioration of the feud between the president and the VP. It does seem that if the president had respected the provisions of our constitution to quit after two terms, we probably wouldn’t have this macabre situation.

Indeed, I have difficulties to follow why the president feels so passionate about punishing the VP for apparently not supporting his ill-fated third term efforts. I should think that the allegiance of any good Vice President must be first to the constitution and the country he swore on oath to defend and only then to the President and not the other way round. Subordination can not be a licence to be pushed into illegality or forced to violate the constitution, else to unilaterally break agreements previously reached between two parties. I should further think that blind subordination is suffocating our progress and is not good for us. The lack of civil courage to challenge the wrongs being perpetrated before our eyes makes us a party that enables a clique of a few people who hold allegiance to one another to do as they are please with our resources. Under this administration, Nigeria has become a besieged country where the head of an agency openly boasts about his plans to arrest, jail and humiliate a seating VP. Yet we know that the same agency pretends to be blind and deaf when it comes to friends of their camp. It is indeed a pity that those charged with the responsibility of protecting our constitution and maintaining law and order have themselves become the biggest breakers of our laws and source of threat to our collective peace and unity. These are people who should not have come near the corridors of power in the first place.

To applaud the president over his decision to declare the seat of the VP vacant is not to fully understand what is happening. Anyone who has read and understood the 1999 Nigerian constitution should know that there is no where in it that gives the president any authority to remove the VP. So, why is he doing it? Has he not understood the constitution? Or is it that the PDP and the president simply have no respect for the Nigerian constitution and take the National House of Assembly and the Nigerian people for granted? Or is the president willingly trying to create enough havocs and chaos to make an election in four months impossible – thereby extend his tenure? The unfolding events shall tell! However, one thing that is unacceptable is a situation where our president appears to be becoming more desperate by the day, searching for legal and illegal ways to humiliate the VP, thereby throwing all decorum and decency aboard and conducting himself like a rascal, with total disregard for all laid down procedures in our constitution. This pattern of behaviour is unacceptable whether or not he senses he cannot get the number of votes in both Houses of the National Assembly to impeach the VP.

The problem with the president’s action is that even under the assumption that the PDP and his interpretation of section 146 (b) “And for any other reason” were correct, and those provisions that were laid down section in 142 for the pre-election phase as being interpreted by the PDP and the president were applicable, the PDP and the President still do not have the authority to declare the seat of the VP vacant. Only the National House of Assembly can make such a declaration. A president that apparently does not understand our constitution or worse still is wilfully misrepresenting it is indeed a serious and dangerous matter that must be addressed seriously. The Nigerian state is bigger than the ego of any one person and the interest of the PDP for that matter. One would expect a good and law abiding president to know how to legally pursue his objectives without grossly violating the constitution. If the president had thought that he could no longer work with the VP and he has reasons to believe that his interpretation of section 146 is strong enough to support his efforts, he should have known that due process demands that he informs and initiates an impeachment process through the only body that has the exclusive powers to remove a President or the VP, which is the National Assembly. To unilaterally assume the powers of both Houses and make such reckless and infuriating declaration is to put it mildly an insult to both houses and a grave affront to our constitution and sensibilities.

By now the PDP and the president should know that they are in error to assume that the constitution equates the offices of members of the Senate/House of Representative and State houses of Assembly with those of the offices of the President/VP or Governors/Deputy. The spirit of the constitution is that it recognises the senators as partisan positions and their removal from office are clearly spelt out accordingly. On the other hand, offices of the President/VP and Governors/Deputy are presented as executive offices to represent the interest of all the people of the federation or of their states respectively, irrespective whether these people are members of the platform on which they were elected or not. Thus, it is far fetched to expect the process of their removal from office to be the same. The procedures for the removal of the executive offices are clearly stipulated in section 143-146. Lets for the sake of argument assume that the constitution favours such removal as being propagated by the PDP and the president with reference to section 142, how can an enduring institution be built when their approach is selective. How does this administration intend to explain condoning the defection of almost a whole set of members of a House of Assembly of one state along with its Governor and Deputy to the PDP but takes actions when members of the PDP decamp to other parties. We know that several members of the Senate have defected from one party to the other without any action. So, what’s the point! The spirit of the Nigerian constitution demands that all Nigerians must be treated equally? This seeming selective approach is actually a violation of section 17 subsection (2) of the constitution. It reads “every citizen shall have equality of rights, obligations and opportunities before the law.” How can all citizens have equality of rights, if for the same offence, some are punished for defecting from the PDP and others applauded for defecting to the PDP?

The spirit of the 1999 constitution as it relates to the removal of the President or the VP, as already mentioned, lies exclusively with the National House of Assembly as elaborated in section 144. In this section, it becomes evident that not even in the case where the VP becomes permanently incapacitated or death can the President unilaterally declare the seat of the VP vacant: 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 see below) of this section in its report to the President of the Senate and the Speaker of the House of Representatives.) Consequently, even in the case of death or being incapacitated, the President alone can not make this declaration, and the spirit of the constitution is that even such a declaration is not enough and must be verified by a team of medical experts (including one of the affected) whose report must be addressed to the President of the Senate and Speaker of the House of Representative. Further, subsection 2 stipulates as follows: "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 that has rendered 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. It is only after such publications in the Gazette that the seat is officially vacant. Please note that sub section 4 reads in part as follows: The medical panel to which this section relates shall be appointed by the President of the Senate. The point is that the spirit of our constitution clearly delegates the process of removing either the President or VP exclusively to the Senate and House of Representative. It is their declaration and collective signatures, after due process has been followed that removes either the President or the VP from office. It is thus shocking that despite this clear provision in our constitution the president genuinely believes he can assume the powers to unilaterally declare the seat of the VP vacant, pick a replacement and have the replacement imposed on Nigerians. What is even more worrisome is that he and the PDP apparently expect the Nigerian institutions and Nigerians to accept this recklessness. I should think that not even in banana republics are states run this way; there remains certain minimum of standards people don’t fall below. It is indeed really a shame to see how low and bottomless Nigeria is falling.

For the sake of clarity, the President of Nigeria under 1999 constitution has no power whatsoever to declare any seat of any elective office vacant. Thus, the President has not only no such powers to declare the seat of the VP vacant but also no such powers to withdraw his privileges and security details; as these privileges are not dependent on the President’s good-will towards the VP, but are accorded him in the constitution, just as the president himself derives his privilege from the same constitution. I find this excessive display of ruthless power (that is clearly unconstitutional) not only disgusting and disappointing but totally unacceptable. The PDP and the president should please take note that Nigerian is not a private company owned by the PDP that can be run according to their moods. It is indeed a serious and dangerous development that a political party is assigning to itself the responsibility of our National Assembly, taking vital constitutional decisions and giving instructions to our institutions.

In the interest of the development of our democracy and Nigeria, I implore the VP to return to Nigeria when his vacation ends. We cannot allow this unconstitutionality to stand and become precedent. This administration will be ill-advised to illegally arrest the VP on his return and subject him to further humiliation, as the VP has all his constitutional privilege intact. It is indeed disturbing that the president is being quoted as having given orders for the arrest of the VP. This appears another misunderstanding of the constitution by the president. The president has no powers to issue an arrest warrant on a peaceful citizen of Nigeria. Only a judge of the court of law has such jurisdiction. History will not forgive President Obasanjo if he carries out his threat and continues on this reckless path of unconstitutionality.
Finally, it is my hope that since the VP has gone to court that the supreme court would be making a pronouncement on the matter before long and the Honourable members of the Senate and House of Representative would swiftly and courageously once again rise, irrespective of party affiliation to declare enough is enough by bringing all these farce to a quick end and save Nigeria’s democracy from further deterioration, chaos and debasement, just as they did during the TTA.

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