Judiciary should apply the law – Lawyers
There are comparisons between the current situation of Ondo State Governor, Rotimi Akerodolu, with previous similar constitutional crises involving a former President, Umaru Musa Yar’Adua, and a former Governor of Taraba State, late Danlami Suntai.
Lawyers say the strict interpretation and application of the provisions of the law is the only way to deal with the recurrent impasse when occupants of presidential and governorship offices are indisposed or incapacitated.
The latest crisis involves Governor Akeredolu of the All Progressives Congress (APC) who has been battling an ailment believed to be leukaemia for which he has been receiving treatment in a German hospital.
The governor was flown out of the country for six months, creating political tension over his failure to transmit power to his Deputy, Lucky Aiyedatiwa, who had sought to have the state assembly impeach him.
The governor returned to the country on two occasions but continued his chemotherapy in Ibadan, Oyo State, and on each occasion the state assembly passed a vote of confidence on him.
President Bola Tinubu on November 24, intervened in the matter and reportedly brokered a deal between Akeredolu and Aiyedatiwa, the Speaker of the Ondo State House of Assembly, Oladiji Olamide and members of the assembly and other key stakeholders in the state.
As part of the peace deal, the speaker and assembly members on November 30, went to the Court of Appeal in Abuja to withdraw the appeal seeking to allow the impeachment of the deputy governor.
On December 12, while preparing to return abroad for further treatment, Governor Akeredolu reportedly handed over to his deputy.
During the tenure of former President Muhammadu Buhari, he was forced to travel on different occasions for medical attention.
His first medical trip in June, 2016, was brief, but in January, 2017, he transmitted a letter to the National Assembly informing it of a 10-day medical vacation in the UK, which he extended indefinitely while his Deputy, Yemi Osinbajo, acted.
Again, from May to August, 2017, he returned to the UK for medical treatment with Osinbajo acting.
However, Buhari’s failure to transmit power to Osinbajo during another prolonged medical trip in April, 2021, created a serious uncertainty in the country until he returned to complete his tenure.
A similar scenario played out in 2009 after former President Yar’Adua fell ill with pericarditis and was at a clinic in Saudi Arabia. He stayed abroad for three months.
But it was the failure to transmit power to his Deputy, Goodluck Jonathan, that created tension in the villa as his aides attempted to continue with functions of state.
It took the doctrine of necessity by the National Assembly and protests by some cabinet ministers, the Save Nigeria Group, for Jonathan to assume office on May 10, 2010, after Yar’Adua’s death on May 5.
Governor Suntai’s air crash near the Yola airport on October 25, 2012, in a Cessna 208B Caravan which he piloted incapacitated him from carrying out his functions, but he initially refused to transmit power to his Deputy, Garba Umar.
The controversy raged while he observed a long treatment abroad with both the state assembly members and federal lawmakers from the state asking him to transmit power to his deputy and focus on his treatment.
Amid the controversy, Suntai clung on to the office to complete his tenure in 2015 after his second tenure.
Lawyers say the provisions of Sections 145 and 146(1) and (2) of the Nigerian Constitution (1999) for the president to transmit power to the vice president and Sections 189, 190 and 191 for the transmission from the governor to his deputy still apply in the resolution of such crises.
The sections provide thus: “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.
It took the doctrine of necessity by the National Assembly and protests by some cabinet ministers, the Save Nigeria Group, for Jonathan to assume office on May 10, 2010, after Yar’Adua’s death on May 5.
Section 146 (1): “The vice president shall hold the office of president if the office of president becomes vacant because of death or resignation, impeachment, permanent incapacity or the removal of the president from office for any other reason in accordance with Section 143 of this constitution.
“(2) Where any vacancy occurs in the circumstances mentioned in Subsection (1) of this section during a period when the office of vice president is also vacant, the President of the Senate shall hold the office of president for not more than three months, during which there shall be an election of a new president who shall hold office for the unexpired term of office of the last holder of the office.”
Judiciary should apply the law – Lawyers
Reacting to the situation, Dayo Akinlaja (SAN) said the way forward was for people to think about the country first and not just about their interests.
He said, “There is no doubt that we all know what is right or proper, but the will to do that is what is lacking.
“The constitution is clear beyond even the sheerest level of equivocation in providing for what to be done in an instance of this nature.
“Therefore, the problem is not the constitution, and the way forward is clear enough and well-mapped out.
“The trouble is that people are not prepared to travel the way forward the way it is meant to be travelled.”
Also speaking, the Chairman of the Nigerian Bar Association (NBA), Garki, Abuja, branch, Obioma Ezenwobodo, said the Nigerian Constitution spelt out what should be done in such a situation of incapacity of the occupant of the offices of the president and governor.
He said, “Section 190 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is clear that whenever the governor of a state is embarking on a vacation, if he is unable to discharge his functions and duties as governor, he shall transmit a written declaration to the speaker of the House of Assembly of any of this facts and until he transmits a written declaration to the contrary, the deputy governor shall function and act as the acting governor of the state.
“In other words, the provision mandates for a written declaration by the governor, and even when he fails to make this declaration, the deputy shall function as the acting governor until the governor makes another declaration of his intention to resume power.
“The implication of this being that what happened in Ondo is an adoption of the plain provisions of the constitution transmitting power to the deputy by the governor. Where he had failed to do so before leaving for medical care abroad, the deputy would have been automatically regarded or functioned as the acting governor.”
He further said it was left for the judiciary to boldly interpret the provisions of the law in applying it once and for all.
While noting that it was just like when you defected, the punishment ought to be to forfeit the seat, he said, “The judiciary should stop delivering political judgement and boldly interpret the law.”
For his part, Hamed Ajibola Jimoh Esq said where a leader was incapable of leading, he ought to vacate or be removed from the public office for other capable people.