A Problematic Solution: Nigeria's Vice President, Dr Goodluck Jonathan, Has Finally Been Allowed to Act as President in the Absence of the Long-Hospitalised President Musa Yar'Adua. the National Assembly Passed a "Resolution of Necessity" on 9 February Confirming Jonathan's New Position. but as Osasu Obayiuwana Reports, the Legality of This Move Is Questionable

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AFTER HAVING NO FUNCTIONING president for 78 days, with the country in hiatus, Nigeria's dithering political elite finally realised that the game was up. With no improvement in President Umaru Yar'Adua's health, after being airlifted to a Saudi Arabian hospital on 23 November 2009, and rising popular anger over the refusal of the cabinet to tackle the problem constitutionally, the National Assembly's hand was forced in passing a resolution on 9 February transferring presidential powers to Vice President Goodluck Jonathan.

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Although Section 145 of the Constitution makes it expressly clear that President Yar'Adua must transmit "a written declaration" to the president of the Senate and the speaker of the House of Representatives "that he is proceeding on vacation or that he is unable to discharge the functions of his office"--which he did not do before he left for Saudi Arabia and has still not done from his hospital bed, despite all the anger in the country--for such a transfer of power to take place, the National Assembly went ahead and made Jonathan acting president, knowing that the solution did not lie in adhering rigidly to Section 145.

With Yar'Adua unwilling or physically unable to write the required declaration to the legislature, both houses (the Senate and the House of Representatives) passed a resolution accepting Yar'Adua's telephone interview with the BBC World Service in January--in which he acknowledged a need to make "great progress" before he could return to his presidential duties--as meeting the test of a "written transmission" necessary to trigger the application of Section 145.

Senator Garba Lado, from Yar'Adua's home state of Katsina, objected to the Senate's interpretation of what a "written declaration" meant, and pointed out that Yar'Adua's voice was not authenticated. But the Senate president, David Mark, claimed the online publication of the interview by BBC News Interactive meant it passed the litmus test. "If you go online, you will see what was said," Mark said.

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Ike Ekweremadu, Mark's deputy, claimed the Constitution gave no details of the exact mode of communication required. "Section 145 does not require the president to sign anything, the form is not prescribed," Ekweremadu insisted. "If the president had sent a text message to the Senate president and the speaker of the House, Section 145 would have been fully complied with."

That is a contention that does not sit well with Prof Akin Oyebode of the University of Lagos, one of Nigeria's leading law professors. "[The action of the National Assembly] is a coup d'etat against the Constitution of Nigeria, because the Constitution does not provide for what they did," he told the Vanguard newspaper.

"Section 145 is not unambiguous, it is very clear. A president going on vacation ought to have transmitted, in written form, an instrument to that effect," Prof Oyebode went on. "The Senate had asked Yar'Adua [before passing their 9 February resolution] to comply with Section 145. He did not and now the Senate is swallowing their vomit ... These people are behaving like comedians but I understand their predicament, because they have been boxed into a corner ... What they did was borne of political expediency."

Adamu Aliyu, a former member of the House of Representatives (the lower chamber of the National Assembly) supports Oyebode's view. Aliyu filed a lawsuit at the Federal High Court in Abuja, asking it to invalidate the resolution of his ex-colleagues, on the grounds that it was in flagrant violation of Section 145, which "states clearly how an acting president should emerge and if that did not happen, they should have started impeachment proceedings against Yar'Adua, as provided for in Section 143 of the Constitution," Aliyu said. "Since they could not get Yar'Adua to sign a letter transmitting power in the same way that he signed the 2009 Supplementary Appropriation Act [from his sick bed in Saudi Arabia], they should have done what was expected of them [impeachment]," Aliyu argued. …