ON THE CONSTITUTIONALISM OF MAKING MR JONATHAN THE ACTING PRESIDENT

A REJOINDER TO MOBOLAJI ALUKO’S CONSTITUTIONAL LITERALISM

Constitutions, like budgets, are written at a point in time and give snapshot pictures of nations and organizations values (and financial status). Constitutions are meant to guide political behavior, especially to guide the behavior of political leaders. Politicians behave appropriately if their behaviors are in line with the provisions of the constitution. Human beings are finite beings and do not have knowledge of what the future will look like; they may try but they cannot anticipate all the contingencies that the future would bring. Human beings and their environment do change and their future is not predictable.

No one can foresee what is going to happen tomorrow. Thus, no matter how well the constitution is crafted it cannot contain provisions that address all future contingences. It is for this reason that we have courts, especially high courts that are judicious enough to try to interpret the intent of the constitution’s framers even if that intent is not clear from reading the constitution. The Nigerian 1999 constitution has clauses (section 144, and 145) that indicate that should the president of the federation, for medical reasons, be unable to perform his duties that he should write the National Assembly and inform them of that reality, and at which point the vice president becomes the acting president, until the president is well enough to resume his functions.

This provision seems rational but it did not consider all possible contingences that could confuse the situation. Consider that the president might eat certain food that does not agree with his body or be attacked by a novel germ, and goes into a coma and therefore cannot write and communicate in writing to the National Assembly his medical status. Should such a situation occur should the National Assembly wait for the president to come out of his coma, which, as these things work out, may take years, before they appoint an acting president to perform his duties? Of course not.

The rational thing to do is to engage in a “Doctrine of Necessity” (as the National Assembly said that they did) and have the vice president take over for the president until he informs them in “writing” that he is, again, able to perform his presidential duty. (I must say that interpreting Mr. President’s January 12 interview with the BBC as implied informing of the National Assembly that he is on medical vacation seems legally questionable!)

The point that I am trying to make is that Bolaji Aluoko’s overly literalistic approach to this matter is confusing and probably mischievous. He insisted that unless the letter of the constitution is followed that having Goodluck Ebele Jonathan act as the president is illegal. (By the way, the name Ebele, or Ebere in Owerri dialect, is Igbo; it means a wish for good luck; it is probably Mr. Jonathan’s probable relation to Igbos that led to this undue emphasis on constitutional literalism!) On the surface, Bolaji’s view appears constitutional except that it is unrealistic. It seems to me that folk ought to balance constitutionalism with practicalism. That is what experienced judges are supposed to do in the British Common Law countries: use common sense to infer what behavior the constitution would approve even if such behavior is not specified in the constitution. Doing so is what makes constitutions, such as the US constitution, last long; otherwise you would have to be changing the constitution (or its provisions) every few years to make it cope with unanticipated circumstances.

Yes, there is danger of radical judicial activism (both on the left and on the right) that interprets the constitution to suit activist judges political goals but that danger is what a polity must accept if it does not want to be changing its constitution every few years so as to prevent judges from interpreting them differently from specified in the letter of the constitution. I am saying that there is such a thing as being smart by half. Insisting on constitutional literalism is not smart; in fact, it is downright foolish! If the atavistic forces in the Nigerian polity go to court to challenge the doctrine of political necessity that the National Assembly said underpin their behavior they stand a chance of winning if the high court’s judges are smart by half and interpret the constitution literally.

However, it should be noted that the polity runs the risk of imploding should Mr. Jonathan be denied his right at a chance to rule the country. Such denial would be perceived as against Southern rule. Oh, I understand the implied compact within the ruling PDP whereby the presidency is alternated between the North and South, and since the political rascal, Mr.Obasanjo, a Southerner, had recently held it, a Northerner is now supposed to hold it. Be that as it may, the fact is that Mr. Jonathan is the vice president and is supposed to take over if something happens to the president and he is unable to perform his functions; that is the reason for having a vice president in the first place! Adult thinking must prevail; so, let us give Mr. Jonathan a chance to prove his mettle!

Ozodi Thomas Osuji, PhD