From Martins Oloja, Abuja Bureau Chief

AS Abuja laps up yet another assurance nurtured by spin doctors that President Umaru Musa Yar'Adua may return to his presidency next week, there is a worrisome mood within a section of the civil society that he may return to face a string of illegalities. The challenges may, in fact, be too many for his "wobbly and accident-prone administration," said some critical observers at the weekend.

Specifically, The Guardian witnessed an informal colloquium on the state of the nation, on the first day of the year, where most participants concluded that, "the Yar'Adua administration will be further weakened by a series of constitutional breaches when it faces the electorate soon."

Said one of the participants, "For a government that prides itself on the observance of "rule-of-law mantra, it is embarrassing that the administration has recorded since 2008, more illegalities than all the successor administrations put together, "

The participants including lawyers, civil society activists and academics, numbering 17 actually listed six critical areas where alleged breaches have been most visible; while the Attorney General of the Federation has reportedly looked the other way."

The key issues raised are:

Service Chiefs remain unconfirmed according to Army Act 2004
No Clerk in National Assembly that conveyed Appropriation Bill to Saudi
Oath Act elevated above the Constitution on CJN swearing in
40 days absence without Acting President
DG NAFDAC appointed without membership of PCN
DG SEC appointed without required qualifications in capital market.
One discussant, a lawyer noted a case exclusively reported by The Guardian, on Monday June 2, 2008; titled "General in Court, Queries Service Chiefs' Appointments". The discussant who spoke in a passionate tone noted that, "as we speak now, the Yar'Adua administration has refused to comply with Section 18 of the Army Act (2004), which provides that Service Chiefs must be confirmed by the National Assembly before they can assume office.

The issue came to light in 2008 through a retired General's quest for justice in the conventional court against the military authorities that never confirmed the appointments of service chiefs that allegedly retired him.

Section 18 of the Armed Forces Act CAP A20 Laws of the Federation, 2004 Provides in Sub-section (1): the President may after consultation with the Chief of Defence staff and subject to confirmation by the National Assembly, appoint such officers (in this Act referred to as "the Service Chiefs" as he thinks fit, in whom the command of the Army, Navy, And Air Force, as the case may be, and their Reserves shall be vested.

Subsection 2 states: "The Service Chiefs shall be known - (a) in the case of the Nigerian Army, as the Chief of Army Staff (b) In the case of the Nigerian Navy, as the Chief of Navy Staff, and (c) In the case of Air Force, as Chief of Air Staff"

It would be recalled that this paper noted that, no Service Chief had been confirmed by the National Assembly since 1999, when this democratic dispensation began, not even since 2004. And the ones that the President Yar'Adua appointed shortly after the revelation of the lacuna in court in 2008 have not been confirmed till date. No names were submitted to the National Assembly.

Inquiries too to the President of the Senate and the Speaker of the House on why they have not asked the President to send his nominees to the National Assembly for confirmation has not received any response since 2008.

Another critical breach is the non-compliance with Section 51 of the Constitution, which specifically provides for the appointment of the Clerk of the National Assembly. This is the provision: There shall be a Clerk of the National Assembly and such other staff as may be prescribed by an Act of the National Assembly, and the method of appointment of the Clerk and other staff of the National Assembly shall be as prescribed by that Act.

The colloquium pointed out that there is an indication that the new Supplementary Appropriation Act may be voided by a court very soon, not because of the controversy generated by the reported assent of the President in Saudi Arabia, but because according to the legal process of transmitting Bills to the President, it is only the Clerk to the National Assembly that can do that, not the presiding officers of the National Assembly. But at the time of transmitting the Supplementary Appropriation Bill to the reportedly recuperating President in Saudi Arabia last week, there was no Clerk of the National Assembly. Reason: The discussants quoted a recent revelation in The Guardian to the effect that, the Acting Clerk of the National Assembly that signed the document as Clerk of the National Assembly has not been appointed, even as Acting Clerk by the National Assembly Commission. Mr. Yemi Ogunyomi who signed the Bill to the President is still Deputy Clerk of the National Assembly.

The Clerk of the National Assembly, Alhaji Nasir Arab began his terminal leave since October 12, 2009 when Mr Ogunyomi was announced as Acting Clerk without any letter, even till date and his (Arab's) terminal leave will end on 12 January 2010. There is no indication that by January 12, 2010, there will be a Clerk of the National Assembly.

But mysteriously, by a curious twist of politics in the National Assembly inner recesses, there is no Clerk of the National Assembly, no Deputy Clerk of the National Assembly, no Clerk of the Senate, No Clerk of the House of Representatives and no Deputy Clerk in the House since the Deputy Clerk in the House Mr. Oyeniyi Stephen Ajiboye began pre-retirement leave in October last year.

Despite the provision in Section 51 of the 1999 Constitution, there has been no Clerk in the Senate since June 10, 2008, when Alhaji Umaru Sani retired as Clerk of the Senate. Similarly, the last Clerk of the House of Representatives Chief Collins Walter Nwosa retired since 12 January 2005.

But the discussants feared that some opposition leaders might go to court soon, to challenge the validity of the Appropriation Bill transmitted by an "illegal" Clerk of the National Assembly to the President in Saudi Arabia. The Attorney General of the Federation announced gleefully last week that the President had signed the 2009 Supplementary Appropriation Bill into law in his hospital bed in Saudi Arabia.

It is the same way lawyers, including a Senior Advocate of Nigeria, SAN Chief Adegboyega Awomolo were last week worried by the manner the new Chief Justice of Nigeria was sworn in without a letter of appointment by the President.

The former Attorney General of Osun State, Awomolo said there had been no appointment of a new CJN, as the Senate had only conveyed a confirmation to the office of the President.

As a participant at the colloquium put it, "what if the President returns next week to nominate another CJN since he has not reacted formally to the confirmation of the new CJN with a letter appointing Justice Katsina Alu, who was controversially sworn in last week by outgoing CJN, Justice Idris Legbo Kutigi, who was made to rely on an Oath Act, instead of the 1999 Constitution's provision that the President should do so.

There were reports of eight Justices of the Supreme Court, who were absent at the swearing in ceremony last week, although all of them are resident in Abuja.

Apart from the absence of the President for the past 41 days without authorising the Vice President to act as President, the colloquium also noted that it was on record that when the Director General of NAFDAC was appointed early last year to replace the current Information Minister, the nominee was not a registered member of the Pharmacists' Council of Nigeria (PCN), as provided by the NAFDAC enabling Act. It was recalled that the nominee from Benue is actually a physician, who was staying in the United States at the time.

Which journalist is this?

na Guardian