THE RULE OF LAW FAVORS PRESIDENT OBASANJO ..... THIS TIME!

C. A. Candide-Johnson Esq., S.A.N., 10th January 2007

There is a legal way to achieve virtually every legitimate objective of government. What is often lacking in the approach of proponents of expedience and illegality is legal erudition, a sense of history and a little patience. A legal way exists even in a legal and political situation which has not been contemplated by the Constitution. It is important to highlight this path so that those of us who actually work are not all destroyed by the unseemly spat between two “bulls in a china shop”.

By common consent, the remarkable situation where a sitting and elected Vice President opposes the sitting and elected President to the extent of leaving the party upon whose platform they were jointly elected is a situation which is not contemplated by the Nigerian constitution. In the unique case of Vice President Atiku, it is regrettable that the frightened first reaction of President Obasanjo’s enthusiastic aides was calculated to violate fundamental norms of the constitution and to recklessly undermine the rule of law, since in my opinion the legitimate answer to the present conundrum strongly favors President Obasanjo.

In honor and with a sense of responsibility a Vice President who cannot work with the President (even without going so far as to leave their party) ought to resign from the office. This is a norm recognized by countries and cultures across the world. The likely objective of the course chosen by this Vice President is to create an alternative incumbency and source of authority within the Presidency. This creates a dangerous threat to the stability of Government and poses a critical challenge for our constitutional law.

The challenge is to be met by attempting to discern the stipulation of the Constitution on such a situation.  This is to be achieved whether the stipulation is clear or not. It is indisputable, that the operators of a living constitution are empowered to find answers even to unanticipated questions.  The obvious mechanism supplied for that operation by the same constitution is the system of courts by whose instrumentality unexpected issues must be resolved by the time hallowed principle that the courts must determine the intention of the draftsman from the language that he has used in the full context that he has used it.  The challenge is therefore to discern the intention of the framers of the Constitution. If it can be discerned, then it must be effected whether that requires imaginative construction or even the filling of gaps in language and provision. The American Judge Richard Posner put it nicely in his 1995 paper: Overcoming Law - "What Am I?  A Potted Plant?"
“A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated by its drafters, requires the exercise of discretion and the weighing of consequences. Reading is not a form of deduction; understanding requires a consideration of consequences. If I say, "I'll eat my hat," one reason why my listeners will "decode" the meaning of this statement in non literal fashion is that I couldn't eat a hat if I tried. The broader principle, which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it.”
Section 142 of the 1999 Constitution intends that the President and the Vice President must be from the same party. Since the Vice President must succeed the President in the event of death or other such incapacity, it is anticipated that the joint party mandate which they represent will not be defeated by this anticipated possibility. Indeed it would be absurd and dangerous if a Vice President so strongly at odds with the President retains the right to succeed him. Section 146 and in particular 146(3)(c) imply clearly that there are reasons (unstated) beyond death, resignation, impeachment, permanent incapacity or removal under Sections 143 and 144 or succession to the Presidency itself (provided for under Section 146(3)(a) and (b) under which the Vice President will cease to hold office. The context urges the conclusion that change of party is a prime candidate for such “other reasons”.

The necessary and practical implications are to be drawn in order to meet the exceptional situation in a way that the framers of the Constitution would have intended. This purposive approach to determining legislative intent is hallowed by antiquity and by sound authority. The interpreter may ask: “If this factual situation had been pointed out to the framers, how would they have answered it?” To borrow an analogy from contract law, a term will be implied into an agreement to cover an unanticipated event according to the reasonable test of an officious bystander. If the officious bystander had asked what would apply in the unanticipated event, the answer that the parties would have given will be implied into the contract. It is a specie of this approach that was identified by Justice Holmes of the United States Supreme Court in a 1931 case called Bain Peanut Co of Texas –v- Pinson (282 US, 499, 501 Supreme Court) as follows:

“the interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints”.

This is why the task of constitutional interpretation is given to men and not to machines! If it can be gathered from the whole constitutional document that this type of “split presidency” was not intended, then the Court must effect that intention. If having prescribed that the Vice President cannot enter office unless he belongs to the Presidents party, can it seriously be argued that if asked: what if he changes party mid stream?, the framers would not have said: “but of course, he must cease to hold the office”! If the court takes that view then the provision for “other reasons” will supply an easy avenue for resolving the question in accordance with the framers intention.
A familiar example of the purposive approach is the case of Awolowo –v- Shagari (1979), 12 NSCC 87, which also concerned a presidential election. Shagari scored a higher number of votes across the nation than did his closest rival Awolowo. Awolowo however complained that technically (literally) Shagari had not complied with the accurate geographic spread of votes prescribed by the Electoral law.  Subsection 1(c) of Section 34 A of the Electoral Decree 1977 required a candidate to win (in additional to the majority of votes cast) at least 25% of the votes cast in at least two thirds “of the states”. This was achieved easily in 12 states and argument centered upon the votes cast in Kano, the 13th State.  The court held that the section dealt with votes and not with land area. It rejected a literal interpretation which was urged for Awolowo, and which required that the vote across Kano must be considered as one whole. The Court decided simply that Shagari complied because he won 25% of the sum of two thirds of the votes cast in Kano State.  Fatai-Williams CJN put it clearly at page 102 as follows:
“ ……it is, we think, fallacious to talk of fractionalization of the physical land area of a state when the operative words of Section 34A (1)(c)(ii) relate undoubtedly to the votes cast by voters in the state at the election. It is also fallacious to talk of scaling down the votes cast for the 1st Respondent in Kano State by one third. That argument, if we may say so, overlooks the clear and unambiguous words of Section 34A (1)(c)(ii) which provide first for ascertaining the total number of votes cast for the 1st Respondent by the voters of Kano State before comparing this figure obtained thereby with two thirds of the votes cast in Kano State in order to determine whether the votes received by him are not less than one quarter of two thirds of all the votes cast in Kano State.”

In the context and according to its purpose, the section concerned votes cast and not the territory of Kano State.  

Within the present republic the best example is that in Peoples Democratic Party v Independent National Electoral Commission 1999 11 NWLR Pt 626 at 200. It was a case involving the present Vice President and argued brilliantly by his personal counsel the late lamented Chike Chigbue SAN. The law provided for succession of a governor-elect by his elected deputy in the event that the governor-elect “dies”. The governor elect (Atiku Abubakar) did not die in the flesh, but he abandoned the election in order to stand successfully as Vice-President of the Federation. The question that arose was not clearly covered by the words used in the Constitution, since literally Atiku did not die and the section did not deal with the situation. However, to the extent that he would not assume the mandate, he was assumed “dead” for the intent and purposes of the constitutional provision. The Court refused to adopt a literal view, but held rather that the irreversible absence of the governor-elect from his office was an event within the contemplation of the subject provision, and the deputy governor elect could succeed him. This broad or purposive approach is one that has been commended in our constitutional law by an unbroken succession of cases since Idigbe JSC’s much quoted decision in Nafiu Rabiu v State (1981). Ayoola JSC concurring, elucidated this logic at page 263, when he stated:

“In deciding the case at hand, resort to the literalist approach is neither desirable nor helpful. Recourse to foreign decisions in which such approach has been adopted, without regard to history; legal tradition and the character of the law or statute concerned can be misleading. There are enough cases in our jurisdiction which show that where constitutional interpretation is concerned a flexible and liberal approach is to be preferred……. Conception of a purposive and liberal approach should not be limited to giving an extended meaning to words, though that may be part of it where it meets the occasion, but also should be one in which the court looks at the whole statute and gives effect to the norms that are express or implicit in it and can be discovered within the four corners of the statute itself”

If therefore the constitutional framers clearly intended that a President and Vice President should not enter office without belonging to the same party then it is fair to assume that if one peremptorily ceases to adhere to that party, he should cease to hold office and this conclusion will permit the Court to deal with the unexpected situation under the “other reasons” provision in Section 144.  

The above conclusion requires clear analysis and reasoning in a judgment. That is well beyond my object here but certainly with patience and skill the President can achieve that necessary or legitimate objective without violating fundamentals of our Constitution and the system of government on which his own legal and moral authority rests.

C. A. Candide-Johnson Esq., S.A.N., 10th January 2007