Yar’Adua to Appoint Acting President?

This Day (Lagos)| 25 December 2009| Davidson Iriekpen

President’s Letter to National Assembly Now Inevitable.

Lagos — With a major constitutional crisis looming over the swearing-in of the Chief Justice of Nigeria (CJN) in seven days’ time, THISDAY checks have revealed that President Umaru Musa Yar’Adua may anytime from now transmit a letter to the National Assembly over his medical leave in order to enable Vice-President Goodluck Jonathan to act as the President of the Federation.

Section 145 of the 1999 Constitution says: “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.”

However, the failure of Yar’Adua to write to the National Assembly has created a lot of legal hurdles for key decisions, including assent to the 2009 Supplementary Budget and the swearing-in of the new CJN, Justice Alloysius Katsina-Alu, who will take over from Justice Idris Kutigi, who will retire from the Supreme Court on December 31 on attainment of the 70 years statutory age.

Katsina-Alu, THISDAY learnt, has said if the President is not back by the time Kutigi retires and the VP is not properly given authority to act, he will not accept being sworn in by the Vice-President.

“His argument is that he would have legitimacy problems since the Oaths Act is very clear that it is the President that swears in the CJN,” a source told THISDAY last night. “Without the VP assuming the constitutional authority as stated in Section 145, he cannot swear in the new CJN without courting legal battles. Some lawyers may head for court to declare the swearing-in unconstitutional.”

With the looming crisis, it is now clear to Aso Rock insiders that a letter to the National Assembly is inevitable and the President’s inner circle is considering all the options.

Already, the National Assembly is on standby to receive the letter of medical vacation from the office of the President. According to sources, the President is not in a state of mind to take any decision as he tries to recuperate from his medical condition after a lengthy treatment. Because of the situation, the legal “doctrine of necessity” is being considered to address the situation.

The doctrine of necessity, according to legal experts, has become necessary because the President is not in a position to compose or write a letter to the National Assembly. “However, this can be done by someone who normally writes letter for him. The person will have to read the letter to his hearing. If he agrees to the content, it will now be taken that he wrote the letter himself, with his seal. It is acceptable in law,” a constitutional lawyer told THISDAY yesterday.

To fill the seeming vacancy created by the President’s prolonged absence, the Attorney-General of the Federation and Minister of Justice, Chief Mike Aondoakaa, was reported to have directed the VP to take over. Denying the report on Wednesday, Aondoakaa said in a statement: “I as the number one law officer of the Federation do not have such powers to direct the Vice-President to take over. ”

The relevant section of the Constitution of the Federal Republic of Nigeria vests the powers to appoint or replace the President of the Federation on the National Assembly.” He said the Chief Justice of the Federation, the President of the Court of Appeal or any judicial officer could only function in that capacity after taking their oath of office as stipulated in section 290 of the Constitution. Aondoakaa said it became necessary to make the clarification following the misconceptions.