Section 144 of the 1999 Constitution is proving difficult to amend. The Section vests in the Executive Council of the Federation (EXCOF) the power to initiate the process of removing a President from office on the ground of permanent incapacitation.
But moves by the House of Representatives to amend the controversial section through an amendment bill sponsored by Action Congress Leader and Minority Whip Femi Gbajabiamila collapsed like a pack of cards yesterday.
And all that was amidst a rowdy session.
The bill seeks to transfer the power given to EXCOF in the constitution to the National Assembly but a majority of the House members voted in favour of maintaining the status quo, claiming it was to protect the principle of separation of powers.
Meanwhile, in the Senate, many senators, apparently going beyond the scope of the amendment bill before it, which seeks to alter the provisions of Sections 145 and 190 of the 1999 Constitution, canvassed outright deletion of Section 144.
Section 144 (1) reads: The President or Vice-President shall cease to hold office if –(a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice-President is incapable of discharging the functions of his office; and
(b) The declaration is verified, after such a medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the President of the Senate and the Speaker of the House of Representatives.
Amidst the rowdiness, voice vote was conducted thrice in the House and thrice did the voice of the “nays” reverberate louder than the voice of the “nayes”.
The drama of the day began in the House when the “Bill for an Act to Alter the Provisions of the Constitution of the Federal Republic of Nigeria 1999 and for Other Matters Connected Thereto, 2010 (HB.377)” came up for second reading.
The bill was presented and read for the first time on January 13, 2010.
In his lead debate to push the bill through the second reading, Gbajabiamila said the bill was aimed at amending Section 144, explaining that the bill seeks to transfer the powers vested in the EXCOF to the parliament to avoid the current situation where cabinet ministers have found it extremely difficult to play their role in terms of declaring the true state of health of the President.
He said the section had become a problem over the past two months because it gives EXCOF the sole right to kick start the process of determining the true health status of the President or Vice-President.
According to him, empirical evidence had shown that it is impracticable for the ministers who are appointees of the President to declare him incapacitated.
He canvassed that this power should now reside with the National Assembly and that a time-frame of 21 days be inserted within which the parliament must set up a medical board to determine the health of the President after the preliminary opinion that he/she was incapacitated.
The debate drew a lot of comments from various lawmakers who argued from various angles.
Hon. Olaka Nwogu (PDP Rivers) kicked against the bill insisting that the current problem was not with the constitution and its provisions in Section 144 but the will to carry out the dictates of the provision by the ministers.
Nwogu argued that transferring the powers to the parliament was not a guarantee that the persons to be entrusted with the powers will do the right thing.
Among those who spoke against the amendment bill were Emmanuel Jime, Ubale Jakada, Sada Soli Jibia, Ahmed Wadada, Mohammed Ndume as well as Bala Ibn Na’Allah.
Most of them argued that the powers currently conferred on EXCOF should remain untouched just as a few of them canvassed that at best a time frame be given to EXCOF to activate the provisions of Section 144.
This position was, however, countered by the argument of Hon. Mayor Eze (PDP Imo) who said that waiting for the EXCOF to declare a sitting President incapacitated given the risk of their jobs and the level of sycophancy associated with the Third World political environment.
Others who spoke in favour of the bill were Hon. CID Maduabum (PDP Anambra), Hon. Sulaiman Kawu (ANPP Kano), Hon. Abike Dabiri- Erewa (AC Lagos), Hon. Henry Dickson (PDP Bayelsa) and Hon Independence Ogunewe.
Senators spoke during the second reading (debate on the general principles) of the bill to remove the inherent flaws in Section 145 on Acting President in the absence of the President and Section 190 on Acting Governor in the absence of the Governor.
But rather than dwell solely on the amendment of Sections 145 and 190, which debate was introduced by Deputy Senate President Ike Ekweremadu, Senators veered off by attacking Section 144, saying the provision was out of synch with the political realities in the country.
Effiong Bob (PDP, Akwa Ibom North-east) said members of EXCOF who were vested with the responsibilities in Section 144 were grossly mocking and abusing the provisions of the section, stressing that the provisions were out of tune with political realities.
According to him, “Section 144 should be completely deleted from our constitution because of the master-servant relationship our ministers have with the President. I have never in the history of this nation seen or heard of any minister resigning from office because of clash of ideology.”
“The ministers are appointees of the president and they owe their allegiance to him; therefore, they cannot declare their boss incapable. No minister or commissioner appointed by the president or governor will accept to declare his boss incapable,” he said.
Senator Bala Mohammed (PDP, Bauchi South) said it was improper for the drafters of the constitution to have made such provision vesting in the ministers the responsibility to initiate a process of pronouncing their employer (president) medically unfit even when his state of health is obvious.
Mohammed declared: “Section 144 ought to be amended to remove that responsibility from members of the EXCOF because it makes no political sense to be asked to initiate an action that would culminate in the removal of one’s benefactor.”
Senator Julius Ucha (PDP, Ebonyi Central) said that the provision was “meaningless, senseless and only made to protect the executive.”
However, some senators, who dwelled on the thrust of the bill to amend Sections 145 and 190, said the National Assembly should look for ways of making the transmission of letter before proceeding on vacation mandatory.
They contended that this would address the problem thrown up by the ailing President Umaru Musa Yar’Adua debacle.
A number of senators suggested that there should be a provision in the book, specifying the number of days the Vice-President can act in the absence of the President.
Bassey Ewa Henshaw (PDP, Cross River State South) said Section 145 should be amended to make it compulsory for the President to inform the National Assembly anytime he is billed to travel out of the country.
Uche Chukwumerije (PPA, Abia North) wanted ninety days to be set as the maximum time that a president could be away from his duty post after which an acting president would automatically become president.
But contrary to hints dropped by Senate President David Mark (PDP, Benue- South) on Wednesday that the proposed amendments would be fast-tracked and passed, the Upper House could not conclude on the second reading.
Mark advised members to come prepared on Tuesday, next week, to contribute robustly to the debate on the general principles of the bill, preparatory to its passage.
The proposed amendment to Section 145, as contained in the bill sponsored by Ekweremadu and 43 other senators, reads: “In the event that the President is unable or fails to transmit the written declaration mentioned in sub-section 1 of this section within 7 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 the President of the Senate and Speaker of the House of Representatives, that he is now available to resume his functions as President.”
It is to replace the extant Section 145, which reads: “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.”
In the same vein, it is being proposed that Section 190 of the constitution be amended by substituting it with a new Section 190, which reads: “In the event that the Governor is unable or fails to transmit the written declaration mentioned in sub-section 1 of this section within 7 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.”