The Executive Council of the Federation (Excof) is under pressure to invoke Section 144 of the 1999 Constitution to give legal backing to the confirmation of Goodluck Jonathan as acting president.  CHUKWUDI NWEJE writes on why the body has been shying away from its responsibilities.

Introduction
The Executive Council of the
Federation (Excof) and the National Assembly are the only two bodies constitutionally empowered to remove a sitting president and could have used their powers under the 1999 Constitution to save the country from the tension raised by President Umaru Yar’Adua’s prolonged absence from office without official leave. Under Section 144 of the constitution, the Excof can remove the president or his vice if it is considered that the holder of the office is incapacitated. The National Assembly can also remove the president by invoking Section 143 (2) of the constitution which states that: “the President or Vice-President may be removed from office Whenever a notice of any allegation in writing signed by not less than one-third of the members of the National Assembly:- (a) is presented to the President of the Senate; (b) stating that the holder of the office of President or Vice-President is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the President of the Senate shall within seven days of the receipt of the notice cause a copy thereof to be served on the holder of the office and on each member of the National Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office to be served on each member of the National Assembly.”
However, the Excof and the National Assembly have not explored any of these options despite the fact that President Umaru Yar’Adua left Nigeria for Saudi Arabia for medical treatment on November 23, 2009 and has not returned. His absence almost grounded the country because he left without transmitting a letter to the Senate President and the Speaker of the House of Representatives as required by Section 145 of the constitution, an action that left the country was without a leader.
Although no member of the administration has spoken to or seen President Yar’Adua since he travelled, the Excof during its meeting of December 2, 2009 passed a resolution to the effect that President Yar’Adua was capable of discharging his functions as President. Michael Aondoakaa, then minister Justice and Attorney General of the Federation later told reporters that: “The medical treatment outside the country does not constitute incapacity to warrant or commence the process of the removal of the president from office.”
On Tuesday February 9, 2010 the National Assembly passed a resolution empowering Vice President Goodluck Jonathan to assume duties as acting president but refused to invoke Section 143 of the Constitution. The motion drafted by the Senate and passed by both chambers of the national legislature states that Mr Jonathan “shall henceforth discharge the functions of the office of the president, commander-in-chief of the armed forces of the federation.”
The National Assembly relied on extra-constitutional invocation “the doctrine of necessity” to justify its action. According to it, the radio interview granted by the president to the British Broadcasting Corporation (BBC) served as “irrefutable proof that Yar’Adua is on medical vacation.”

Hurried and illegal transfer of power
According to sections 143 and 144 of the constitution, the only way President Yar’Adua could be removed from office is by a resolution by two-thirds of the Excof to the effect that the president is incapacitated and unfit to continue in office. In the alternative, the National Assembly could impeach him for gross misconduct and for violating the provisions of the constitution he swore to defend. It is instructive that none of this was executed in transferring power to Jonathan.
The Save Nigeria Group (SNG) describes the National Assembly’s action as a rigging and manipulation of the constitution. According to them; “Only the unwary will not see through the booby trap in having an “Acting President” who is not sworn in by those who got an outgoing Chief Justice of Nigeria to swear in his successor. While we want Dr. Jonathan to assume full Presidential powers, his natural right by the constitution, we reject the extra-constitutional invocation of the “doctrine of necessity,” which is a dangerous precedent that could become handy to execute an unpopular agenda against the people in the future…It has become imperative that a logical and constitutional process of installing Dr. Jonathan as President with a Vice-President must commence immediately with the Executive Council of the Federation passing a resolution declaring Yar’Adua incapacitated in compliance with Section 144 of the constitution”

Reluctant Nass and despondent Excof
Despite the constitutional lapses in the transfer of power to Jonathan which to an extent amounts to a palace coup, the Excof and the National Assembly have refused to take necessary action to legalise the elevation of Jonathan to acting president position.
Most Nigerians believe that President Yar’Adua has breached the constitution by being absent without leave for three months now. The Excof has also not initiated any action to declare the president incapacitated. Except for the solo campaign by Professor Dora Akunyili, minister of Information and Communications on February 3, 2010, the cabinet has not taken any official position.

Who is afraid of Sections 143 and 144?
The reluctance of the Excof and National Assembly to invoke Sections 143 and 144 of the constitution and legalise the transfer of power to Jonathan raises a serious question of who is afraid of a legal transfer of power. There is no doubt that the last has not been heard of the action.
The SNG has argued that “the resolutions could be used to destabilise the nation’s democracy in the same way the late General Sani Abacha uprooted the Chief Ernest Shonekan’s Interim National Government.” According to the SNG, “it has become imperative that a logical and constitutional process of installing Dr. Jonathan as President with a Vice-President must commence immediately with the Executive Council of the Federation passing a resolution declaring Yar’Adua incapacitated in compliance with Section 144 of the constitution.”
The Excof and the National Assembly have undoubtedly failed in their constitutional responsibility because both bodies keep insisting that President Yar’Adua is recuperating when no member of his cabinet has seen or spoken to him not even the vice President. All efforts by his minister and aides to confer with him have been reportedly rebuffed by Hajia Turai Yar’Adua, the first lady. What Nigerians know regarding the President’s health condition are pieces of information volunteered by the first lady, his doctors and the grapevine. Some Nigerians in fact still believe the rumored death of President Yar’Adua to be true.   

Judicial intervention
Under the circumstances where the Excof and National Assembly are not willing to discharge their assigned duties, there might be need for a judicial intervention. The judiciary had already acted in this regard on Friday January 22, 2010 when Justice Daniel Abutu of the Federal High Court, Abuja ordered the Excof to resolve whether the president is capable of performing his presidential functions or not and pass a resolution to that effect. It is pertinent to note that the Excof has not complied with that verdict. Justice Abutu was delivering judgment in a suit filed by Mr Farouk Aliyu, a former Minority Leader in the House of Representatives and Mr Sani Gabbas, chairman of the Jigawa State Chapter of the Nigerian Bar Association (NBA). The plaintiffs had sued the Attorney General of Federation (AGF) and Excof over the indefinite absence of the President Yar’Adua.
The plaintiffs through their counsel, Mr Bamidele Aturu prayed the court to hold that the President’s failure to write the Senate President and Speaker of the House of Representatives, before going on medical vacation on November 23 violates Section 145 of the Constitution. They also asked the court to determine whether the resolution of the Excof at its meeting of December 2, 2009 to the effect that President Yar’Adua was capable of discharging his functions as President of Nigeria was constitutional.
The judiciary should take the bold step and declare President Yar’Adua absenteeism when he is not on leave and when efforts to inquire into his health by government officials have been turned down by Turai Yar’Adua, the president’s wife, a dereliction of duty and order the immediate swearing-in of Jonathan as president and commander -in-chief of the armed forces of the Federal Republic of Nigeria.