[size=14pt]Senate debates Section 145 of constitution[/size]
Reps hearing on review suffers hitch
From Alifa Daniel, Asst. Political Editor, John-Abba Ogbodo, Terhamba Daka (Abuja) and Iyabo Lawal (Ibadan)

THE Senate is today making good its decision to ensure that a vacuum is not created whenever the country's President stays off his seat for a long period of time as it begins debate on Section 145 of the 1999 Constitution. Members were advised yesterday by Senate President David Mark to be at their best and be ready to contribute because "it won't be voice vote, everybody will speak for himself."

He added: "This is a bill that will be fast-tracked. We will need two-thirds for the bill to go through. It won't be voice vote, everybody will speak for himself."

However, a similar attempt yesterday by the Lower House, suffered a setback as stakeholders invited to begin the process at a public hearing failed to show up.

Constrained by the non-transmission of a letter by President Umaru Musa Yar'Adua, though it urged him to do so, the National Assembly last week passed a resolution asking the Vice President to take over as Acting President, Commander-in-Chief.

Three weeks ago, the Senate had mandated its Committee on Constitution Review to propose an amendment to Section 145.

Section 145 of the Constitution reads: "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."

And yesterday, a bill by the 44 members of the Committee led by Deputy Senate President Ike Ekweremadu, went through its first reading as the clerk, Ben Efeturi, rose to state that "A bill for an Act to alter provisions of sections 145 and 190 of the Constitution of the Federal Republic of Nigeria 1999 and for other matters connected thereto 2010" passed through its tradition of reading.

[b]The detailed bill reads: "Be it enacted by the National Assembly of the Federal Republic of Nigeria as follows-

1. The Constitution of the Federal Republic of Nigeria 1999 (in this Act referred to as "the principal Act') is amended as set out in this Act.

2. Section 145 of the Principal Act is amended by substituting for the existing section a new section "145".

(1) Whenever the President is proceeding on vacation or is otherwise unable to discharge the functions of his office, he shall transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives to that effect, and until he transmits to them a written declaration to the contrary, the Vice President shall perform the functions of the President as Acting President.

(2) In the event that the President is unable or fails to transmit the written declaration mentioned in sub-section 1 of this section within seven days, the National Assembly may by a resolution made by a simple majority of the vote of each House of the National Assembly mandate the Vice President to perform the functions of the office of the President, as Acting President, until the President transmits a letter to President of the Senate and Speaker of the House of Representatives that he is now available to resume his functions as President.

3. Section 190 of the Principal Act is amended by substituting for the existing section a new section "190".

(1) Whenever the Governor is proceeding on vacation or is otherwise unable to discharge the functions of his office, he shall transmit a written declaration to the Speaker of the House of Assembly to that effect, and until he transmits to the Speaker of the House of Assembly a written declaration to that effect, and until he transmits to him to the contrary, the Deputy Governor shall perform the functions of the Governor as Acting Governor.

(2) In the event that the Governor is unable or fails to transmit the written declaration mentioned in sub-section within seven days, the House of Assembly may by a resolution made by a simple majority of the vote of the House mandate the Deputy Governor to perform the functions of the office of the Governor, as Acting Governor until the Governor transmits a letter to the Speaker that he is now available to resume his functions as Governor".

4. This Bill may be cited as the Constitution (Amendment) Bill 2010."[/b]

In its explanatory memorandum, the Senate Committee explained that the Bill seeks to amend the Constitution of the Federal Republic of Nigeria 1999 to enable the Legislature empower the Vice President or Deputy Governor to function as Acting President or Acting Governor in the absence of the occupier of the respective offices, for reason of vacation, ill-health or any other situation of temporary incapacitation.

Efforts by the House of Representatives to kick-start the amendment of Sections 145 as well as 146 of the 1999 Constitution suffered a setback yesterday, as stakeholders invited to begin the process failed to show up at the public hearing organised by the Usman Bayero Nafada-led ad-hoc committee on the review of the constitution.

Major stakeholders, including the Independent National Electoral Commission (INEC) Chairman, Prof. Maurice Iwu, Chief Justice of the Federation, Justice Aloysius Katsina-Alu, governors of the 36 states of the federation and the Federal Capital Territory (FCT) Minister, among others, all did not turn up at the public hearing at the National Assembly in Abuja yesterday.

However, Justice G.A. Oguntade represented the Chief Justice of the Federation. Three states, Bauchi, Kwara and Taraba, also sent representatives to the public hearing meant to collate input on Sections 76, 116, 132, 145, 146, 178, 190 and 191 of the Constitution.

The proposed amendment is to make the transmission of letter by the President or the governor of a state to the National Assembly or the state House of Assembly in the event of embarking on any leave, mandatory as against the discretionary provision in Section 145 of the 1999 Constitution.

Sequel to the crisis generated by President Umaru Musa Yar'Adua's absence, and the non-transmission of communication to the National Assembly, Bankole had on Thursday, February 4 given the Nafada's ad-hoc committee three weeks to turn in its report on the Bill seeking to amend sections 145, 146, 190 and 191, after members at the day's plenary voted in support of its second reading.

But yesterday, Nafada had, while about to deliver his welcome address at the occasion, sought to recognise the principal stakeholders present. But he was shocked when only Justice Oguntade and the three representatives of Bauchi, Kwara and Taraba were at the event designed to obtain inputs for the amendments, especially as it bothers on electoral reforms, among other issues.

He consequently announced the cancellation of the public hearing, citing lack of quorum. He said the event will be rescheduled for next week.

Expressing disappointment at the untowards development, Nafada had, while addressing the Speaker of the House of Representatives who was special guest of honour at the event, lamented the passive attitude of the major stakeholders towards the entire amendment exercise.

His word: "The reason behind amending section 145 was as a result of the public outcry that there was a vacuum created by the absence of the President; and civil societies, eminent personalities, state governors and so many other interest groups came to the National Assembly to see the leadership about how we can salvage this country. And we were able to resolve the problem temporarily through a resolution.

"Now, we are looking for a permanent solution to the problem and what is expected is that those who have been calling for that should have been here to present their memoranda, their positions and opinion on this matter. It is not just for the House to sit down and do it. Yes, the House can sit down and do it, but it is part of our responsibilities to call for public hearing in order to hear the views of Nigerians in matters like this.

"I can see only three representatives of state governments and there is nothing that we would pass and will become a law regarding constitutional amendment without having two-thirds of the states assemblies assenting to that position taken by the House of Representatives. The three that are here, I don't think they are adequate enough to represent the 36 states that we have in the federation. And more also the Attorney General who is supposed to be here is also not here.

"So, may I, Mr. Speaker, plead with you that we postpone this public hearing until when they are ready next week, ," he added.

"When the state governors were here, Mr. Speaker, they made mention of Electoral Act and they want that Electoral Act to be passed. These are some of the things we want to put in the Electoral Act but nobody is here, only three state representatives."

Meanwhile, lead sponsor of the Bill for the amendment of sections 145, 146, 190 and 191, Suleiman Abdulrahman Kawu, berated the stakeholders for failing to attend the public hearing.

Fielding questions from reporters after the event was postponed, Kawu expressed surprise that the stakeholders shunned the hearing, even after giving them 72 hours notice, adding that only one written memorandum was received from the Nigerian Institute of Advanced Legal Studies, which he described as "very comprehensive".

"If INEC is serious, we placed adverts in four national dailies; it is more than enough to make them available. The order is that we publish in at least two national dailies and we have done that. Where are those who stormed the National Assembly in the first place?" Kawu queried.

Meanwhile, the Nigerian Bar Association (NBA) yesterday insisted that only the invocation of Section 144 of the Constitution by the Federal Executive Council of the Federation will address the void created with the absence of Yar'Adua.

President of the association, Mr. Rotimi Akeredolu (SAN) who advocated this in an interview with reporters in Ibadan shortly after the inauguration of international board of advisors of Supreme Management Training and Consultancy Services Limited, said the FEC should save the nation from the present constitutional crisis by invoking the section against ailing President Yar'Adua.

He described the pronouncement of Goodluck Jonathan as Acting President by the National Assembly as a temporary measure which cannot stand the test of time.

The NBA chief maintained that the only way out of the constitutional logjam is for the FEC to declare Yar'Adua unfit to rule the country.

The senators did not act distinguished when Yar'Adua's absence from office from November 23 started to hurt the nation, until eight days later when the Deputy Senate Leader, Victor Ndoma-Egba (SAN), brought a motion for the Upper House to discuss the health of the President, and to wish him well. Some senators shot down the motion.

But 62 days later, the Senate became wiser and moved in. It urged Yar'Adua to transmit a letter that would enable the Vice President to act in his stead. It also asked its Committee on Constitution Review to propose an amendment to Section 145 of the 1999 Constitution.

The President's Special Adviser on National Assembly Matters, Senator Mohammed Abba-Aji, told journalists after meeting the Senate a few days later that his boss would transmit the letter.

Asked to categorically declare whether the President would transmit a letter to the National Assembly regarding his medical vacation to Saudi Arabia, Abba-Aji's answer was prevaricative.

When signals reached the Upper House that no letter was forthcoming, a handful of senators began to meet. Soon, the number rose to about 80. It was an unstoppable storm, and the Senate leadership bowed to pressure.

So, on February 9, the Senate resolved to ask Jonathan to take office as Acting President.

The Senate empowered Jonathan to henceforth discharge the functions of the President in the capacity of Acting President.

After the endorsement of a motion sponsored by the Senate Majority Leader, Teslim Folarin, and seconded by the Senate Deputy President, Ike Ekweremadu, the Upper Legislative Chamber also made it clear that Yar'Adua "shall" resume his functions as President when he returns to the country and transmitts a letter to the National Assembly signifying that he was well enough to take charge in that capacity.

However, the only objection to the motion, which was raised by Garba Lado (Katsina South), was rejected by senators out of tune.

Lado had drawn the attention of the Senate to the fact that it was wrong to take the BBC interview as the transmission of a letter from the President.

But Senate President David Mark overruled him, saying: "If you go to the Internet now, you will get that BBC interview. So, I think that it can be taken as the transmission. Even though you are my very good friend, I will have to rule you out of order."

Another Katsina Senator, Ibrahim Ida, tried to persuade his colleagues to delete the aspect of the motion which asked that Jonathan should begin to act as president.

He was immediately shouted down by many senators and Mark capped it: "Senator Ida, I think you can read the mood of the Senate. Do you still want to continue?" Ida quietly sat down.

The two key prayers of the motion read:

"The Senate do hereby resolve as follows:


That the Vice President, His Excellency Dr. Goodluck Ebele Jonathan, GCON, shall henceforth discharge the functions of the office of the President, Commander-in-Chief of the Armed Forces of the Federation as Acting President;

That the Vice President shall cease to discharge the functions of the Office of the President when the President pursuant to Section 145 of the Constitution of the Federal Republic of Nigeria 1999 transmits to the President of the Senate and the Speaker of the House of Representatives in writing that he has returned from his medical vacation."

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