WEEK-END ESSAY: The Yar’Adua “Speech”, the Abutu “Ruling” and A Warning to Jonathan: “Caveat Emptor”
Mobolaji E. Aluko,PhD
Burtonsvilled, MD, USA
January 15, 2010
That 150-Seconds Interview of Yar’Adua by the BBC
On Tuesday morning, January 12, 2010, Nigeria’s President Umaru Musa Yar’Adua (UMYA), presently holed up away from Nigeria for more than fifty days in an unknown hospital in far-away Saudi Arabia, gave a haltingly weak-voiced and cough-riddled interview to the British Broadcasting Corporation (BBC) in English (51 seconds) and Hausa (86 seconds). This was in a desperate attempt to enter a “proof of life” plea to the skeptical and rumor-besieged Nigerian and international public who had not seen or heard from him since November 23, 2009 when he collapsed in Abuja and was air-lifted to Jeddah.
Clearly, the timing of the interviews was to serve six purposes:
3. To take the steam out of four closely-watched court cases (by lawyer Falana, Rep. Aliyu/Gabbas, the NBA, and lawyer Onwuekwe) that were due for further mention in federal high court in Abuja the very following day Wednesday 13th January (Onwuekwe) and Thursday 14th January (all others);
4. To forestall any dramatic negative resolutions by a restive National Assembly that was re-convening for the first time from the holiday recess in Abuja also on that same Tuesday;
6. To wish the Super Eagles football team well as it began its African Nations Cup football campaign in Angola later on that same day Tuesday.
The audio-recordings and the contents of the interviews (in English, and English transcript of the Hausa version) are given below:
*By BBC (English Service):
http://news.bbc.co.uk/2/hi/africa/8453409.stm [51 seconds]
*By BBC (Hausa Service) – Click on the Ka Kuma Duba links
*Youtube version by NLF (with a lip-synching spoof):
Yar’Adua: At the moment, I am undergoing treatment and [cough] I am getting better from the treatment I am getting. I hope that -uh- very soon [cough] there will be tremendous progress which will allow me to get back home. I wish at this stage to thank all Nigerians for their prayers [cough] for my good health and for their prayers for the nation. (29th second) [Pause - for 2 seconds] As soon as my doctors discharge me, I will return to Nigeria to resume my duties. I would also like to use this opportunity to wish our team, the Super Eagles, success in our Nations Cup of Nations matches in Angola. (51st second)
“My brothers in Nigeria, I want to inform you that I am getting better insha-Allahu. “By the grace of God, any time my doctors discharge me, I will come back home to Nigeria to continue my work. “I want to also thank all Nigerians for their prayers for me and for the nation. “I want to wish our team, the Super Eagles, victory in the African Cup of Nations that is going on in Angola. Thank you.”
BBC: Your Excellency, do you know when you will go back home, because Nigerians are worried about your condition. Do you know how long it will take you to go back home to continue with your work?
Yar’Adua: Insha-Allah, I am getting better. Anytime God heals me and I am strong, that is the time, insha-Allah, I will come back to Nigeria, anytime the doctors discharge me.
BBC: There are a lot of issues (in Nigeria ), have you spoken with the Vice President and is everything going on well as you expect?
Yar’Adua: I spoke with him; I have been speaking with him. Everything is going on well in accordance with the constitution of the country.
Without any accompanying video tape or still picture, and in a season where the President’s handlers have told so many fibs about his medical condition, whereabouts and the imminence of his return to Abuja to “resume his duties” this week, next week, maybe never, a listener is forgiven to doubt the authenticity of the identity of the person behind the voice.
This writer however intuitively believes that the voice was Yar’Adua’s, particularly because the coughing sounds like him, unless of course there is a perfect impostor lurking somewhere out there. He (the writer) however makes the following observations:
2. His use of the words about needing “tremendous progress” before “my doctors discharge me” – tremendous, not that he is not expecting to make any progress, but if he does, it must be “tremendous” – indicates a man fully cognizant of his dire medical straits, and negates his handlers who have indicated that he has already been discharged and is merely recuperating in an out-of-hospital and more homely setting;
4. As a side-bar, his reference to the Super-Eagles – and nothing else, not even addressing the serious Mutallab failed-terrorist-bombing attempt in Detroit, to re-assure the world that there are no more of the deranged fellow left associated with Nigeria - was a weak pander to the soccer-frenzied Nigerian citizenry. It did not help anyway, because Nigeria was trounced 1-3 by Egypt on Tuesday, and only God – and Good-Luck, no pun intended - will save us under coach Shuaibu Amodu against the other teams Benin (on January 16) and Mozambique (on January 20) that are left for us to play in Group C Africa Cup of Nations football action. [I am yet to watch live a single second of any of the ACN matches – but I digress.]
Thus, to the extent that others similarly believe that it was UMYA behind the voice, then at least Purpose #2 (proof of life) was fully served, and Purpose #4 (NASS) and #5 (BOT) were partially served , but Purpose #1 (NEXT) and Purpose #3 (Lawyers’ cases) were not. Purpose #6 turned out to be a dud as I indicated above. If you are not a believer, then the situation is status quo ante, and you are in line with NEXT magazine and the crusading lawyers, namely that the President is either temporarily or permanently incapacitated such that various sections of the 1999 Nigerian Constitution should be applied by or to him to ensure that his Vice-President is either Acting President (acting FULLY albeit temporarily as President, Section 145) or replaces him as full substantive President (Section 144), or failing both, is somehow forced to do so by the courts (Section 146).
There are two other issues about the interview that one would be remiss not to point out.
1. The granting to the BBC, a foreign media outlet – rather than for example to Nigeria’s NTA – is eye-brow-raising, almost certainly un-patriotic. Similar to seeking medical attention in Germany and Saudi Arabia rather than inside Nigeria, it undermines the “re-branding” effort of pride in Nigeria that the Yar’Adua administration recently embarked upon.
The 2-paragraph Ruling of Chief Judge Daniel Abutu in the Case of Onwuekwe vs. AG
In a two-paragraph ruling by CJ Abutu delivered on Wednesday, January 13 in a legal suit of Christopher Onwuekwe vs. Attorney General of the Federation filed in an Abuja Federal High Court of January 7, we read inter alia:
1. That it is hereby declared that by the provision of Section 5(1) and 148(1) of the 1999 Constitution the Vice President can on the basis of an assignment or delegation by the President to him of the executive powers of the President under the Constitution exercise the executive powers vested in the President under the Constitution in the absence of the President.
In this ruling, on the one hand, Abutu superfluously re-stated two sections of the Constitution (in Paragraph 1 above), but on the other hand he completely re-wrote his own version of the Nigerian Constitution in Paragraph 2 by unwittingly introducing two Presidents into it through the use of the phraseologies “further declared” and “any or all the functions of the president.”
Let us first inspect Section 5(1)(a) and 148(1):
Section 5. (1) Subject to the provisions of this Constitution, the executive powers of the Federation:
(a) shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation;….
Section 148. (1) The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of government.
The interesting issue here is that nothing, absolutely nothing, in these particular sections distinguishes between the Vice-President and the other mentioned public officers. At least, in these sections, he is only one among many. It would therefore be necessary for the President, on who the executive powers is vested, to specifically delineate – and be available both physically and mentally to delineate - what is to be exercised through others if there is not to be confusion in governance. We cannot get into his head or simply rely on his spoken word. It is therefore reasonable to expect to see such a delineation among the three different entities (VP, ministers, other officers in the public service) in writing. The word “assign” is an active verb which, if he uses his discretion as laid out in Section 148(1), he must do, and it is not reasonable to expect him to do so merely verbally or through telepathy all the way from Saudi Arabia without risking deniability.
It is precisely for this reason that Section 145 is in the Constitution, viz:
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.
Nothing could have been tidier if this simple Section had been obeyed by the President before proceeding to Saudi Arabia, or failing that due to the emergency medical exigency of that moment of exit from the country, doing the right thing at the time that he summoned enough strength to sign the 2009 Supplementary Bill as he is purported to have done on December 23, 2009.
Section 148(2) The President shall hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation for the purposes of -
(a) determining the general direction of domestic and foreign policies of the Government of the Federation;
(b) coordinating the activities of the President, the Vice-President and the Ministers of the Government of the Federation in the discharge of their executive responsibilities; and
(c) advising the President generally in discharge of his executive functions other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other person or body.
Notice the word “shall”, not “may”. When the President assumed office in May 2007, one of the first things he changed was the weekly regular federal executive council meetings of President Obasanjo to a bi-weekly one. That revised regularity has now been clearly in the breach since November 23, 2009.
Let us now proceed to Paragraph 2 of the ruling, the Constitution re-writing saga by Judge Abutu. First, if in Paragraph 1, he buttressed his ruling on Sections 5(1) and 148(1), where did he get his legal support for his “further declared” statement of Paragraph 2? At least, he quotes NONE, meaning that he ran out of legal support pretty quickly, except for the political policy statement “in the interest of peace, order and good governance.”
Now, now, now, if that is the case, could not an activist judge have SACKED both the President and Vice-President, and replaced both of them with more competent people “in the interest of peace, order and good governance”, since we have seen NONE of the three under them since May 2007?
The more serious issue is the phraseology “any or all.” Again, if the President delegates or assigns ANY executive function to the Vice-President, it must be CLEARLY known so that those who must obey him – that is the Ministers and other public officials, for example – can do so without fear and in clear conscience. With respect to the alternative “all”, can a sitting President delegate and assign ALL his functions to the Vice-President WITHOUT exercising Section 145? That would be IMPOSSIBLE or absurd. On what basis would he do that outside of Section 145? Would that not be a recipe for confusion, in which you have the potential of a person with ALL the powers of the President, who can at any time yank them back without anybody but himself and the Vice-President knowing it? Is that then not the case of two existing Presidents?
It appears to this writer that that is the case.
The total purpose of Section 145 is to ensure that once the Vice-President becomes the Acting President due to the temporary incapacitation of the substantive President, there is ABSOLUTELY no ambiguity as to who is exercising presidential executive powers. There cannot be two captains in the ship of presidential governance. The ONLY power left for the substantive President is then to ASK for his executive powers back, and Section 145 shows that that ability to return CANNOT be abridged by anybody, not the President of the Senate or the Speaker of the House of Representatives to which he had made prior “a written declaration”.
One wonders why Chief Judge Abutu did not see this clearly. One cannot imagine that the reason was that it was a procured judgment by a gleeful Attorney-General that connived with the plaintiff Onwuekwe to look the other way at the AG’s counter-affidavit. It Is inconceivable.
Veep Ebele Jonathan – Goodluck if You Buy the Abutu-Aondoakaa Ruling
As I remarked in my recent essay defending him, Vice-President Goodluck Jonathan has shown extreme prudence – the first Cardinal Virtue of the Christianity, the others being Justice, Fortitude (Courage) and Temperance - in approaching matters concerning the absence of the Presiden. For example, he has ignored noises to be more assertive, eating (we hear) nothing but his wife’s meals and drinking only her tea at Aso Rock, etc., etc.
Even I was first taken by the Abutu ruling when it was first wrongly reported that he had MANDATED the Chief Justice to swear in the Vice-President as Acting President. However, when I later heard that the Attorney General Aondoakaa was gleeful about the ruling, and after I read the text of the ruling myself, I quickly revised my priors.
Despite my observations, this Potemkin ruling by Judge Abutu may tempt Goodluck Jonathan to go beyond his brief as Vice-President, and open him up to taking decisions that might come back to haunt him if a returning President asks him “Who sent you on that one?”, or if he is disobeyed, for example, by some security forces, or if he is snubbed at some international forum. Jonathan should note that a re-statement of the Constitution changes nothing, while a “policy statement” from the bench is nothing but an orbiter dictum.
So he should be rightly guided: “Caveat emptor”.
Counting November 23, 2009, today is fifty-fourth (54th) day that 99.9% of Nigerians have not set their eyes on or heard from their President. Half of the remaining 0.1% do not believe that his voice was what they heard a few days ago.
So the nation remains dazed by the unprecedented notion of an absent and invalid President that insists on ruling from far-away Saudi Arabia; a Federal Executive Council and National Assembly that watch helplessly; and a wily Attorney-General that connives with a compliant Judge to put a legal lipstick on a froggy situation. This is in the presence of all of the internal social, political and economic situation that bedevils our country, and the new international near-pariah country-of-interest terrorism list that the Mutallab bomb situation has placed our country. Our reduced or loss of relevance – in Guinea, in Darfur, in international oil matters, on the football field, and more recently in Haiti’s ongoing devastating earthquake, just to name a few – is quite galling.
The question is: what is the way out?
It is easy to say that President Yar’Adua should simply do the right thing and hand-over to Vice-President Jonathan, and that we can sing “Kumbaya” thereafter. No, that is a routine constitutional matter, albeit important. The more important fact is that that will not solve our many problems as a President Jonathan himself, lifted from obscurity from the Deputy-Governorship to Governor of the small Niger-Delta state of Bayelsa after a corrupt Governor Alamieyeseigha had been chased from Killbrough (England) in drag to Kirikiri (Lagos prison), to Vice-President – has not shown any competence in national affairs, being part both of a tainted presidential electoral mandate and a ravishing ruling political party-cum-rally.
What the crisis should further highlight are:
1. the urgent need for true electoral and constitutional reform in order to establish accountable governance – which now should include clear guidelines as to how long a president should be away before an Acting President automatically takes over – and
2. a united and credible opposition to give the present ruling party PDP a run for its money at the upcoming 2011 elections.
In a hundred-and-one other countries, the impending loss by this ruling party in the midst of so many missed economic and political targets – and a burgeoning contrived constitutional crisis – would have been a foregone conclusion, but Nigeria has its own peculiar dynamics. A country in which Dr. Maurice Iwu is still around today as INEC Chairman after all the fiascoes of the 2007 elections is a peculiar one.
At another time in Nigeria, a military coup would have been a foregone conclusion, but we don’t want that, we must not have that, for the military solves nothing, brings in its own problems, and sets the nation back many years again.
The final message is that the Nigerian citizens, despite an army of naysayers and discouragers within its midst, must continue to organize, not agonize.
President Umaru Yar´Adua is Dead
Audio-recordings of Yar’Adua’s interview:
Youtube version by NLF:
By BBC (English Service):
http://news.bbc.co.uk/2/hi/africa/8453409.stm [51 seconds]
By BBC (Hausa Service) – Click on the Ka Kuma Duba links
Schedule of Angola 2010 Africa Cup of Nations Matches
Ruling by Chief Justice Abutu on the Case of Onwuekwe vs. AG
MID-WEEK ESSAY – In Defence of the Vice-President, in the Failure of the President Doing the Right Thing (by Mobolaji E. Aluko)
December 31, 2009
Ending Nigeria’s Annus Horribilis 2009 with the Two Umars (Bolaji Aluko)
January 10, 2010