THIS DAY
Ministers: Yar’Adua Not Incapable… Only He Can Determine His Fitness
From George Oji in Abuja, 01.28.2010
The Executive Council of the Federation yesterday rose from its fourth session this year with a unanimous resolution that only President Umaru Musa Yar’Adua could determine whether he is fit to remain in office.
The Council also resolved that Yar’Adua who has been in Saudi Arabia for over two months because of ill-health is not incapable of discharging the functions of his office.
It further argued that the medical treatment undertaken outside the country by the President since November 23, 2009, does not constitute incapacity and therefore, he should not cease to hold office as specified by Section 144 and 146 of the 1999 Constitution of the Federal Republic of Nigeria.
The Council took these resolutions in response to the directives of the Chief Judge of the Federal High Court, Justice Dan Abutu of January 22, requiring the Council to make public within two weeks the capability or otherwise of the President to remain in power.
The stand of the Council was made public by the Attorney- General and Minister of Justice Mike Aondoakaa while briefing State House correspondents at the end of its meeting.
Fielding questions from newsmen, the minister restated that the issue of the President’s transfer of power to the Vice-President remains a discretionary one that only the President could exercise at will.
According to him, “It is a pure discretional matter left to the President and it can only commence with the president writing the letter and it is a voluntary transfer of power, which neither of us, nobody has control over it except the President himself.
“The issue has also been a security matter, it is not a matter that when it is transferred, the whole world as being canvassed, where people lay delegation. It has serious security implications, even in the US.”
Drawing an analogy from the American presidential system which Nigeria’s system was fashioned after, Aondoakaa stated that in the history of 226 years of the existence of the American State, only thrice had American Presidents transferred power to their deputy. He observed that in each occasion, it was the presidents that determined their incapacity to function in office.
According to him, “The issue of acting president is a matter which comes under the purview of Section 145. The condition precedent to it is that the president must write for a voluntary transfer of power to the vice-president to act as acting President. Where the president does, the vice-president automatically assumes the duty of acting president.
“The Constitution of the Federal Republic of Nigeria does not make any provisions for any swearing; it is an automatic elevation to that position of acting President. But the journey must start from the President. We have looked at other jurisdictions and what has happened and how this provision we have in Section 145, whether it exists in other jurisdictions.
“Nigeria practises a presidential system of government that is very identical to that of the US. Under the provisions of the America Constitution, the 25th amendment has a provision, which is very identical and since the history of America, that provision has only been used three times.
“The first person to assume office under the provisions of voluntary transfer of power was President George H W Bush (Senior). He became the first person in the history of America to be an acting president. Only three times in the history of America has someone acted as President. In all the cases, the self declared incapacity method was used by the president himself, who will write voluntarily to transfer presidential authority to the Vice- President.
“The first instance that occurred was on July 13, 1985 when President Ronald Regan underwent surgery to remove cancerous substance from his colon. Prior to undergoing the surgery, he transmitted a letter to the Speaker of the House of Representatives and President Pro tempo of the Senate declaring incapacity; he himself declaring that he will be incapacitated. The Vice-president George H W Bush acted as President from 11.28am until 7.22pm of the same day. i.e. as soon as the operation finished when Regan transmitted a second letter and resumed the powers of the President.
“The second incident that occurred was on the 29th of June 2002. President George W Bush (Junior) declared himself temporarily unable to discharge the powers and duties of his office because he was undergoing a surgery, which required sedition. He invoked the 25th Amendment in his letters given to the White House Counsel who transmitted them by fax to the Speaker of the House of Representatives and President Pro Tempo of the Senate and they contacted Vice- President Dick Chiney to advise him on the transfer. Chiney acted as the President for a little over two hours i.e. from 7.09am to 9.24am, where upon, Bush transmitted a second letter resuming powers and duties of the office.
“Lastly, on July 22, 2007 under the same circumstances of 2002 invocation President George W. Bush transmitted a letter to the President Pro Tempo of the Senate and the Speaker of the House of Representatives declaring himself terribly unable to discharge the powers and duties of the office to undergo another surgery, which required sedition. Vice-President Chiney acted as President from 7.16am to 9.21am of the same day, becoming the first Vice-President to act as acting president for more than once in the history of America.
“In all these, although the public were aware that temporary handover of power would take place, but for security purpose, the actual time it happened was not revealed until Bush resumed his duties as President. This is the position of acting presidents in America. In the 266 years of the history of America it has acted, none has been more than one day. This is not saying that the right thing ought not to be done, but we are saying that the issue should not be confused with politics of the day.”
DAILY INDEPENDENT
Jonathan: Senate Tells Yar’Adua To Transmit Letter; FEC Says No Reason to Transfer Power Prez to VP
January 28, 2010
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However, the FEC insisted that there is no reason for Yar’Adua to transfer power to Jonathan.
It was its response to the ruling on January 22 of the Abuja Federal High Court which gave the FEC an ultimatum of 14 days to assess his health and declare whether or not he is fit to perform his duties.
The FEC explained that transmitting power to his Deputy is the exclusive and discretionary right of the President.
Aondoakaa, who read out the position to reporters in Abuja, stressed that Yar’Adua has not undergone surgery.
He said the FEC, acting pursuant to the court order, unanimously passed a resolution and declared that Yar’Adua “is not incapable of discharging the functions of his office, and that the medical treatment outside the country does not constitute incapacity to warrant or commence the process of (his) removal from office, under Sections 144 and 146 of the Constitution.”
Aondoakaa pointed out that in the 234-year American Presidential system, which Nigeria copies, the President has handed over power to his Deputy only three times when he underwent surgery.
He maintained that Yar’Adua has not undergone any surgery since he left for Saudi Arabia on November 23 last year, and urged the public to understand that the transfer of power to a Deputy, as in the American cases, is always done secretly for security reasons.
Aondoakaa said the FEC has accepted the ruling of the Abuja Federal High Court on January 13 that Jonathan should continue to carry out the functions of Yar’adua in his absence.
He insisted that the FEC has accepted the decision of the court “and as long as we know, no Minister can disagree with (Jonathan) and no executive order issued by (Jonathan) can be questioned by any authority in the executive arm of government. That is the position.
“The issue of acting President is a matter which comes under the purview of Section 145 of the Constitution.
“The condition precedent for it is that the President must write for a voluntary transfer of power to the Vice President to be acting President. Where the President does, the Vice President automatically assumes the duties of acting President.”
He noted that the Constitution does not provide for any swearing in, “It is an automatic elevation to that position of President but the job must start from the President.”
Aondoakaa’s encounter with journalists went thus:
Journalists: Were doctors consulted in arriving at the decisions of the FEC today?
Aondoakaa: We followed the Constitution.
Journalists: Can you name the medical experts consulted?
Aondoakaa: The Constitution does not make that provision. The issue of medical team comes after the decision is made, whether or not the President is incapacitated. So, I cannot bend the Constitution.
Journalists: Can the Vice President dissolve the FEC?
Aondoakaa: We do not answer speculative questions. The law deals with actual questions and a positive mind does not think in the negative. The question is thinking not like a positive mind.
Journalists: Can you share with us what informed your decision on this matter?
Aondoakaa: Well, the (FEC) is made up of people with high integrity, which is inclusive of the Vice President who ordinarily is supposed to be the beneficiary of what other people are canvassing for. I have told you that it is a unanimous decision and that alone should have shown you that (Jonathan) is true and faithful because he took part in the decision.
Journalists: The analogy you drew of the United States Presidents shows that they were patriotic, but in our case, the President has been away for over 60 days, does that not say anything? And does the Constitution allow the FEC to say that the President is not incapacitated and that he can continue in office?
Aondoakaa: We followed the letters of Section 144 and I think Section 144 allows it and if anybody thinks it doesn’t he can go to court. The U.S. President underwent surgery but the only medical report made available to you and us is that (Yar’Adua) is not undergoing surgery, and it was a heart problem and the heart disease was disclosed to the press.
Aondoakaa argued that the transfer of power should not be confused with politics, because it is a voluntary and discretionary matter left to Yar’Adua, and it can only commence with him writing a letter.
“The issue also has been a security matter. It is not a matter that, when, if it is being transferred, the whole world will know about it as being canvassed – and where people will lead in delegations. It has serious security implications, even in the U.S.
“We have the decision of the court, which the court in its wisdom finds as right, and its facts that (Yar’Adua) has delegated all his powers to (Jonathan).
“The only position left is that if you are affected by the decision of the court, if you are not a party to the case; you apply for leave as an interested party to appeal against the decision of the court.”
