Lawmaker Goes to Court Over Yar'Adua's Absence – Thisday

A new twist has been added to President Umaru Musa Yar’Adua’s absence-from-the-country saga, as an opposition member of the House of Representatives – Farouk Adamu Aliyu – and one Sani Garun Gabass have approached an Abuja Federal High Court seeking an order directing Vice-President Goodluck Jonathan to start performing the function of the president.

Also yesterday, Attorney-General of the Federation and Minister of Justice Michael Aondoakaa (SAN) denied that he wrote to the vice-president, asking him to take over from President Yar’Adua who has been admitted in a Saudi Arabian hospital since November 23, 2009. Aondoakaa said he was not in a position to direct the vice-president to take over.

The plaintiffs in the suit, Aliyu representing Birni Kudu/ Buji Federal Constituency of Jigawa State on the platform of the All Nigeria Peoples Party (ANPP)â-àand Gabbas, said the president’s absence for more than a month “constitutes permanent incapacity within the meaning and intendment of Section 146 of the 1999 Constitution”. Joined as defendant in the suit is the Federal Executive Council (FEC). The plaintiffs said in the affidavit in support of the originating summons that the president had been undergoing treatment at an hospital in Saudi Arabia since the November 23, 2009 “and no member of the executive council of the Federation including the defendants know when he will return to his duty or his state of health”.

They also said members of the executive council of the federation had refused or neglected to take any step to investigate or determine the actual state of health of the president. The plaintiffs also said the refusal of the Attorney-General of the Federation (AGF), the National Assembly and members of the executive council of the Federation to investigate the actual state of health of the president and pass or reject a resolution as to whether he is capable to continue in office had thrown the country into wild speculation. The refusal of the vice-president to perform the functions of the president in the absence of the president had grounded the activities of government, they said. According to the plaintiffs, “the absence of the president from the country and from his duty has led to failure on the part of the members of the executive council of the Federation or the Federal Government of Nigeria to prepare the annual cash plan for the 2010 financial year.

“The security of lives and property and public safety have been left unattended to without anyone to issue lawful directions.” The plaintiffs asked the court to determine the following issues: *Whether having regards to the fact that the president who has not been on vacation and has been undergoing treatment at a hospital in Saudi Arabia since the 23rd day of November, the executive council of the Federation ought not to be compelled to pass and publicize a resolution as to whether or not the president is incapable of discharging the function of his office. *Whether the absence of President Yar’Adua from Nigeria and from his constitutional and statutory duties for medical treatment since the 23rd day of November, 2009 at a Saudi Arabia hospital without being on vacation does not constitute permanent incapacity within the meaning and general intendment of section 146 of the Constitution of the Federal Republic of Nigeria 1999.

They also asked the court to grant the following reliefs: *A declaration that the absence of the president from the country and from his statutory duties and functions for medical treatment since the 23rd day of November, 2009 in a Saudi Arabia hospital outside the purview of Section 145 of the constitution of the Federal Republic of Nigeria, 1999 constitutes permanent incapacity within the meaning and intendment of Section 146 of the Constitution of the Federal Republic of Nigeria. *A declaration that it is unconstitutional for the vice-president of the Federal Republic of Nigeria to refuse to exercise the functions of the President of the Federal Republic of Nigeria having regard to the circumstances surrounding the absence of President Yar’Adua from Nigeria and from his constitutional and statutory duties for medical treatment since the 23rd day of November, 2009 at a Saudi Arabia hospital. No date has been fixed for the case.

The 58-year-old Nigerian leader was flown to King Faisal Specialist Hospital in Jeddah, Saudi Arabia on November 23, 2009 after complaining of chest pains and has been diagnosed with acute pericarditis, an inflammation of the membrane around the heart. The AGF, in a statement in Abuja signed by his Senior Special Assistant, Media, Onov Tyuulugh, said he was responding to insinuations in some quarters that he could ask the vice-president to take over from President Yar’Adua. He said the insinuation was wrong in its entirety and that “I, as the number one law officer of the Federation, do not have such powers to direct the vice-president to take over”. Aondoakaa said: “The relevant section of the Constitution of the Federal Republic of Nigeria vests the powers to remove or replace the President of the Federation on the National Assembly.” He also noted that the Chief Justice of the Federation, the President of the Court of Appeal or any judicial officer could function in their capacities after taking their oaths of office as stipulated in Section 290 of the constitution.

He did not elaborate on that. But following the Oath Act, only the President can swear in the Chief Justice of the Federation while the CJN in turn is empowered to swear in the President of the Court of Appeal and other justices of the Supreme Court. And there are fears that the absence of the President and his failure to properly hand over to the vice-president can stall the swearing-in of a new CJN expected to take over by January 1, 2010. Aondoakaa said it had become necessary to make the clarifications following what he called the misconceptions making the rounds on the positions of the president and the vice-president under the constitution. There have been claims and counter claims on the need for the vice-president to take over the duties of the president following the absence of President Yar’ Adua.
The return date of the President is yet unclear. Meanwhile, Lagos-based lawyer, Mr. Femi Falana, has said the letter if it existed at all is diversionary and misguided and should be ignored. In a statement made available to THISDAYâ-àlast night, Falana said: “The letter sent to the vice-president by the AGF ought to be ignored as it is diversionary and misguided. The AGF lacks the vires to donate to the vice-president the executive powers confered on the president by virtue of section 5 of the constition, however, the vice-president can become president if the president has become permanently incarpacitated pursuant to section 146 of the constitution. “The vice-president cannot sign any bill into law under the constitution. Furthermore the incoming Chief Justice of Nigeria and Court of Appeal president cannot begin to perform the function until they have taken oath of office administered by the president pursuant to section 29 of the constitution and the oaths act.”
SOURCE: thisdayonline.com