January 16, 2010

Court Bestows Executive Powers on Nigeria's Vice-President

Court Bestows Executive Powers on Nigeria's Vice-President

14 Jan 10

The Federal High Court has ruled that Vice-President Goodluck Jonathan is to assume executive powers during President Umaru Yar'Adua's health-related absence from Nigeria, but there will be no formal transfer of power.

IHS Global Insight Perspective


Nigeria's Federal High Court has ruled that Vice-President Goodluck Jonathan should exercise presidential functions during the health-related absence of president Umaru Yar'Adua.


The court has said that the Jonathan can assume presidential functions, but that there is no need for a formal transfer of power to take place. This could result in complications, for it could bring the actual legality of the vice-president's assuming presidential functions under contention.


Given the difficulties that may rise in light of the power-sharing agreement between the north and south, the court has presumably chosen to opt for a soft approach, given the amount of opposition that would undoubtedly arise if the southerner Jonathan were to be given executive powers formally.

Order Restored?

Nigeria's Federal High Court has opened its doors to hear petitions from leading lawyers and rights groups calling for a firm stance in restoring order to Nigeria's political sphere. In the first of four petitions to be heard by the court, prominent lawyer Christopher Onwuekwe sought "a declaration that by the combined provisions of Sections 5 (1) and 148 (1) of the Constitution of the Federal Republic of Nigeria 1999, the vice president can exercise the powers vested in the president in the absence of the president having regard to the circumstances of this suit", NEXT reports. The call for the declaration was motivated by the need to restore "peace, order and good governance of the federation pending when the president resumes and takes over".

Minister of Justice and Attorney-General Michael Aondoakaa countered that constitutionally the president is not obliged to transmit a written declaration to the legislature and that the president is not incapable of discharging his functions. However, Chief Judge of the Federal High Court Dan Abutu ruled in favour of Onwuekwe's petition, stating that Vice-President Goodluck Jonathan has the right to perform the functions of the president. But the court also ruled there is no need for a formal devolution of powers to the vice-president.

The fact that the court has said that Jonathan can perform the functions of a president without there being any formal transfer of power has brought the actual legality of the vice-president's assuming presidential functions under contention. Some believe that the court ruling is more of a political decision than anything else. Akin Oyebode, a professor of international law at the University of Lagos, holds that under this ruling, Jonathan will be little short of "a pretending acting president without any constitutional backing", NEXT reports. But Richard Akinjide, a senior advocate of Nigeria, considers that the ruling has cleared up any discrepancies over Jonathan's role, for he is now to assume the full powers of the presidency. Three other petitions are to go before the courts this week. One has been brought by a human rights lawyer, Femi Falana, who has called for all cabinet decisions taken in Yar'Adua's absence to be declared null and void. Another case is to be brought by the Nigerian Bar Association, which is demanding that power be formally bestowed on Jonathan. Finally, a rights group is calling for Yar'Adua to be declared missing.

Under Pressure to Quit

Political uncertainty has pointed towards a constitutional crisis ever since Yar'Adua left for Saudi Arabia in November, to be treated for acute pericarditis (see Nigeria: 27 November 2009: Nigerian President's Confirmed Heart Condition Raises Succession Questions). Yar'Adua's health has long been an issue of national concern—he suffers from a kidney ailment that has seen him seek treatment abroad before—but this has been his longest hospitalisation, thereby upping the ante in the succession debate. Pressure for Yar'Adua to step down from power was coming from various quarters, with eminent politicians and community members urging the courts or federal executive council to intervene. His absence from key public engagements, such as the swearing-in of the country's new chief justice, only fuelled speculation (see Nigeria: 31 December 2009: Swearing-In of Chief Justice Evokes Concerns of Constitutional Crisis in Nigeria). Then came the deafening silence from the president in the wake of the 25 December attack in which a Nigerian national attempted to blow up a U.S. airliner (see Nigeria: 29 December 2009: Nigerian National Charged with Attempted Suicide Bomb Attack Aboard U.S. Plane). Nigerians were furious that the political regime's state of limbo meant that there was no immediate, official line to defend the country from the global assault on its image; Nigeria was blacklisted by the United States and placed on the its watchlist (see Nigeria: 6 January 2010: Diplomatic Row Brews as Nigeria Challenges its Addition to U.S. Terrorism Watchlist). Meanwhile, domestic security challenges mounted, as the fragile veneer of peace in the oil-producing Niger Delta region was broken when the Movement for the Emancipation of the Niger Delta (MEND) launched a warning strike on a Shell/ Chevron pipeline (see Nigeria: 22 December 2009: Hostilities Resume in Niger Delta; Government Accused of Neglecting Truce). This was compounded by the abduction of three Shell oil workers and the killing of their police escort in the Rivers State capital of Port Harcourt this week (see Nigeria: 13 January 2010: Hostilities Resume in Nigeria's Niger Delta as British and Colombian Oil Workers Kidnapped). Militant groups in the Niger Delta, desiring a greater share in oil wealth, greater investment, and a withdrawal of the government's Joint Task Force, seemed to be placated for a few months, following on from the government's amnesty offer in August 2009. Initial scepticism of the deal, in which the government promised an unconditional pardon for militants who laid down weapons, was soon replaced with praise for the government, as top commanders within key militant groups led by example and jumped on the amnesty bandwagon. There were no attacks on the oil industry during the amnesty phase; MEND respected a self-imposed ceasefire; and oil production climbed back, with Nigeria reclaiming its position as the continent's premier oil producer. But the president's absence from political life took its toll, as it appeared the government was backsliding on its promises of rehabilitation programmes for reformed militants and when monthly stipend payments were not forthcoming. Assurances from Yar'Adua ally Aondoakaa, who is distrusted by many, looked more like a cover-up, especially as he initially tried to downplay the president's illness. Yar'Adua's unconvincing BBC telephone interview earlier this week in a bid to quell the rumours did not help. Although his words were optimistic, saying that he would resume office as soon as he was discharged, his voice was weak and his speech was interrupted by pauses and coughing, suggesting that Yar'Adua was not as well as he would have others believe (see Nigeria: 12 January 2010: Nigerian President Speaks to Media to Dispel Rumours of Chronic Illness, Vows to Return to Office Imminently).

The public outpouring of concern has been strong, with protests staged in the capital of Abuja just outside the national assembly. Protestors included the likes of Nobel laureate Wole Soyinka, and some wore t-shirts bearing slogans such as "enough is enough" while others chanted "Umaru, where are you?" the Financial Times reports. They called for the "offshore" president to step down, or at least hand powers to his deputy temporarily. Another protest march is to be staged in London (U.K.) tomorrow, where the Nigerian diaspora has been mobilised by the U.K.-based Nigeria Liberty Forum and the Save Nigeria Working Group. But the issue of devolving powers to Jonathan has arguably been obstructed by the tacit zoning principle in Nigeria, in which power is to be rotated between the north and the south. Southerner Jonathan assuming full presidential functions could be problematic for northern politicians, who are holding onto the idea that for at least the duration of the current mandate of northerner Yar'Adua—which will expire in 2011—power should remain in the hands of a northern politician. Jonathan's assumption of executive authority would put the rotating formula out of sync. Conversely, militants from the Niger Delta have warned that any attempts to obstruct Jonathan from power by northern politicians would be catastrophic.

Outlook and Implications

The Federal High Court's has generated mixed reactions. On the one hand, it is a signal that President Yar'Adua may not be returning to office as soon as he would hope, even though his recent BBC interview sought to assuage concerns of a power vacuum. The ruling seems to be politically motivated, because constitutionally the president is not obliged to devolve powers over to his vice-president. Given the state of upheaval in Nigeria, though, the court has aligned itself with Onwuekwe's petition: in the interest of peace and order, the vice-president should carry out presidential functions. On the other hand, critics consider that the ruling does not go far enough, because without a formal transfer of power Jonathan's execution of presidential functions will ultimately be rendered illegal. By taking a relatively soft approach, the court is presumably attempting to shield Nigeria's political infrastructure from greater instability, given the level of opposition that would be mounted against southerner Jonathan if his executive powers were formalised.

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