As speculations about the state of the president's health increases, legal experts are now pitched in two sharply divided camps regarding the possibility of a looming constitutional crisis on account of President Umaru Yar'Adua's health.
Confidential sources told NEXT at the weekend that Mr. Yar'Adua's doctors are insisting to keep him in bed away for at least six more weeks, a development which, sources say, is troubling to his family members.
However, with the current exit of the leadership of the Federal Court of Appeal, and the looming vacancy in the headship of the Supreme Court, constitutional lawyers and scholars say that Nigeria is poised for a constitutional catastrophe in its judicial system.
The absence of the ailing president and the non-existence of a substantive stand-in for Mr. Yar'Adua will cause a major crisis in the top two appellate courts if this void is not filled in about two weeks.
A dangerous scenario
On December 31, the Chief Justice of the Federation, Idris Kutigi, will resign from duty. Only the president is authorised to appoint a replacement, but in the light of Mr. Yar'Adua's absence, the position will be vacant. Some experts say that this could spell an impending administrative anarchy in the country's highest courts.
Akin Oyebode, a professor of International Law at the University of Lagos, blamed this looming crisis on the Federal Executive Council (FEC). Mr. Oyebode says that the FEC's reluctance to take measures to ensure that the vice president formally takes charge of the country in the president's absence could create an "artificial crisis".
"It is an artificial conundrum which quite frankly, the constitution has taken care of if only those prescribed to take necessary actions in such occasions rise up to do so. The constitution envisages such a situation but people don't want to do what they ought to do," he said.
Rotimi Akeredolu, the president of the Nigerian Bar Association, who earned a vote of confidence from the just-concluded National Executive Council meeting in Enugu on Friday, after his famous spat with the attorney general of the federation, describes the notion of a pending vacuum in the Supreme Court as "very dangerous".
"We have to be very careful in handling this matter otherwise, it could become a crisis," Mr. Akeredolu said.
The NBA president's position is supported by Bamidele Aturu, a Lagos-based human rights attorney. "There is no doubt that the absence of the president from the country can cause grave constitutional crisis in the situation where the appointment of the Chief Justice and the president of the Court of Appeal is pending," said Mr. Aturu.
Vacancies in the two appellate courts
Although, Mr. Yar'Adua had nominated two names to the National Assembly for the leadership positions in the Court of Appeal and the Supreme Court before his hospitalisation, lawyers argue that the Nigerian constitution requires that the president, or the president's appointee, must appoint the CJ after the endorsement by the National Assembly. That means, Aloysius Katsina-Alu and Isa Ayo Salami, nominated by the president for the positions of the Chief Justice and the president of the Court of Appeal respectively, cannot perform their functions except they are formally sworn in by the appropriate authorities, the lawyers argued.
"The president may have nominated them but they have not been appointed in acting capacity until they are confirmed by the Senate. Even if they are endorsed by the Senate, it would still be the case of a de facto appointment vs. a de jure appointment. The president has a role to play before anyone can act," a judge, who spoke under conditions of anonymity, said.
The effect of this could be a breakdown in the administrative processes and a congestion of cases at the Supreme Court, the lawyers say.
"The CJ elects administrative officers for the courts; so in his absence, no justices will be empanelled to hear cases. This would cause the congestion of cases, especially constitutional cases like election cases," Mr. Aturu explained.
No cause for alarm
Itse Sagay, a professor of International Law, is not in agreement with Mr. Aturu and does not expect a constitutional crisis to arise from such a situation.
"I don't see the smooth running of the Supreme Court being affected by the absence of a CJ. The most senior judge would just take over the running of the affairs," Mr. Sagay said, while conceding that "The nominated CJ cannot be called a CJ until he has been sworn in as the Chief Justice."
Yemi Osinbajo, a professor of Law and a former attorney-general of Lagos State, is in agreement with his fellow academic.
"I don't see that it is in any sense a major constitutional problem. It would only be a matter of form rather than substance," Mr. Osinbajo said, explaining that the absence of a Chief Justice will only reflect in the appearances and not the actual running of the Supreme Court.
But two judges from the state High Court and the Court of Appeal who spoke confidentially to NEXT, said that a nominated Chief Justice or president of the Court of Appeal cannot act in the capacity of his office except they are formally sworn in.
"He cannot effectively take over without a formal appointment. For example, can Ayo Salami attend the NJC (National Judicial Council)? The question I would ask would be: who swore you in?" one of the judges said.
In contrast with the judge's position, Carol Ajie, a fellow of the Georgetown University Law Centre, Washington, United States, is of the view that the nomination of Mr. Katsina-Alu by the president for the position of the CJ suffices.
"Right now, NJC has recommended Justice Katsina Alu to the President and before his trip to Saudi Arabia, the president had forwarded the name to Senate for confirmation. The president wouldn't have done that if he didn't accept NJC's recommendation. Meaning, the president has accepted to appoint Katsina Alu as CJN. Once Senate confirms, the rest is ceremonial," Ms. Ajie says while explaining that nomination for the position also implies appointment.
Solution with National Assembly
A solution to the question of appointment or nomination, according to Mr. Oyebode of the University of Lagos lies with the National Assembly. He said that the vice president must be allowed to perform the duties of the president; a step which has to be instigated by the Senate and the House of Representatives.
"The National Assembly, in the face of the reluctance on the part of the Federal Executive Council to act, should begin the process of making the president step aside. They can act in what we call in jurisprudence, the doctrine of necessity. The National Assembly, because of necessity, should act so that the state does not collapse," Mr. Oyebode said.
He also envisages a possibility of an attempt of a military takeover in the face of the apparent absence of authority in the presidency.
"We do not want a situation where an Alexander Haig throws a spanner into the works. We are talking of the survival of the democratic dispensation not of the personalities of Umaru Yar'Adua or Goodluck Jonathan," the professor opines.
The root of the problem
At the root of the impending disorder in the Judiciary is the fact that Mr. Yar'Adua embarked on a sick leave and failed to formally hand over to his vice president, Mr. Jonathan, thereby creating a void in the presidency.
"It does not appear that that the president mandated vice president Goodluck Jonathan to act in his place. It is not the first time that he is doing that. He ought to have handed over according to Section 145. It is most irresponsible for anybody in a position of authority to do that," Mr. Oyebode said.
Sources, speaking under conditions of anonymity, have told NEXT that it is not likely that the president, who is currently on admission in a hospital in Saudi Arabia, will return to the country before the end of the year.
The seriousness of the president's health condition remains a secret. Last week, the FEC admitted that it was clueless about a possible return date of the president but was definitely not taking any steps to formally fill in the void that the president's absence has created.
"We have decided to stand by the president and pray for him to recover fully," Dora Akunyili, the Minister of Information, declared.
Chinua Asuzu, an Abuja-based attorney, however, said that the vice president of the country needs no formal authorisation to act on behalf of the president.
"The Constitution makes the vice president the acting president automatically whenever the president is absent, temporarily or permanently. There is no need for the president to formally hand over to him. As we speak, Goodluck Jonathan is the Acting President of Nigeria, by conclusion of law," Mr. Asuzu said adding that,
"When the CJN retires, the Vice President, in his constitutional capacity as Acting President, should swear in a new CJN."
While other lawyers argue to the contrary, Ms. Ajie agrees with Mr. Asuzu but concedes that there should have been a formal hand over before the departure of Mr. Yar'Adua.
"This is not to down play the sore point of President Yar'Adua not handing over to Vice President Goodluck Jonathan before he proceeded to Saudi Arabia to look after his health condition. In June 2002, President George Bush was to be sedated to enable a screening test for cancer of the colon. Momentarily, for an hour or two that he was going to be sedated, he handed over control of government to Vice President Dick Cheney. Why is there a problem in Nigeria?" said Ms. Ajie, who described the current situation as a "global embarrassment and the mimickery of democracy".
In the face of the impending crisis in the judicial system, Mr. Oyebode has called on the National Assembly to act. "There is a sense of stasis in the polity which is counterproductive. No serious country should let that happen. It will be an act of irresponsibility for those who are mandated to act not to or continue to refuse to act and call others unpatriotic who do so."
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