Lawyer faults contract award by council of ministers

Story credit to Segun Balogun and Ifedayo Adebayo of 234next (Visit www.234next.com)

All decisions made and the contracts awarded by the Federal Executive Council (FEC) since the departure of President Umaru Yar’Adua to Saudi Arabia on medical treatment three weeks ago have been declared illegal by an Abuja based lawyer, Kayode Ajulo. According to him, since the president left the country without “a duly appointed Acting President” all actions taken so far by the council of ministers are illegal.

Since Mr. Yar’Adua travelled, contracts worth about N6 billion have been awarded by the Federal Executive Council, which has met on three occasions without the President or a duly assigned Acting President.

Mr. Ajulo, who is the Chairperson of the Egalitarian Mission, had in a letter dated Dec. 11 and addressed to the Secretary to the Government of the Federation, Yayale Ahmed, said, “I take the liberty of my noble profession to use this medium to inform you that these recent approvals and decisions of the FEC without the presence of either the President or a duly appointed Acting President definitely ultra vires the provisions of our law and in particular the Constitution of the Federal Republic of Nigeria and are therefore null and void.”

Acting illegally

The critical decisions made by the council of ministers in meetings chaired by Vice President Goodluck Jonathan, has led to a welter of debates over the legality of their decisions in the absence of the President or an Acting President.

Citing Section 148(2) of the constitution, Mr. Ajulo’s letter stated “it is apparently understandable that the Constitution forbids any meeting of the Federal Executive Council without the attendance of the President [or an Acting President].” According to the letter, the only time the council of ministers can meet in the absence of the President is “the meeting to deliberate on the incapability of the President to discharge his function as provided by the provision of Section 144 of the Constitution.” To further prove that the Federal Executive Council cannot meet without the President, the letter explained that the constitution in Section 145 already envisages such periods when the President may be temporarily unable to discharge his official duties and has provided for the position of an Acting President.

Section 145 provides that, “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.” Mr. Ajulo in his letter averred that, “Although the Vice-President is a creation of the Constitution, he cannot become Acting-President except upon the activation of the above Constitutional provision and to this extent, cannot preside over the meeting of the Federal Executive Council as many uninformed very senior officials of this current administration including your good self (Mr. YCayale) ignorantly want the incumbent Vice President to do.” He continued, “Consequently, the (3) three consecutive meetings of the Federal Executive Council and all the resolutions, decisions and approval made or passed thereof are in contravention of our constitution and it’s therefore illegal and void SAVE for any resolution in accordance with section 144 of the Constitution.”

Rotimi Akeredolu, the president of the Nigeria Bar Association (NBA), when contacted declined to comment. According to him, “I don’t have time for all those things now. I’m too busy now.” Mr. Akeredolu’s comment a few weeks ago advising the National Assembly to follow constitutional procedure by allowing Mr. Jonathan to fill in as acting president had irked Michael Aondoakaa, the attorney general and minister of justice, who described the suggestions as ‘‘insensitive’’.

However, Femi Falana, the President of the West Africa Bar Association, is of the opinion that the illegalities committed by the Federal Executive Council go beyond approving contracts. According to him, “It is illegal, absolutely illegal. Contractors of such contracts stand the risk of having any money collected refunded, because by the virtue of section 148 of the constitution, it is the president that is empowered to hold regular meetings with the vice president and the ministers. The vice-president has no such power, unless he is an acting president.”

In his view, the vice president has no power to call the meetings of the ministers in the name of federal executive council, adding ‘‘He cannot call the meeting, he cannot preside over it, because it they are not his ministers, they are the ministers of the president and unless he becomes the acting president, he has no power to summon or preside over such meeting and cannot approve contracts.” Efforts to contact Aondoakaa were unsuccessful, but his Chief Press Secretary, Mr Taiye Akinyemi, when contacted retorted ‘‘Please call the minister of information. This is Federal Executive Council meeting issue. I am not in the position to comment on that, I am not a member of the council, I do not attend their meetings, so how do I comment on that and if minister of justice will have to comment, it will have to be the minister of justice himself and not me.”

The chairman of the Abuja branch of the Nigerian Bar Association, Abdullahi Ibrahim, had advised that the issue be approached more objectively. “I don’t subscribe to that,” he said when asked his opinion on a proper handing over of power to the Vice President. He said, “There is a Vice President there and the federal executive council is saddled with the responsibility of governance. Then in the absence of the President, the VP can act.”

Wahab Shittu, a constitutional lawyer in the Law faculty of the University of Lagos, said “there is no provision for the FEC to act on behalf of the President. Considering the length of time the President has been away, which is obviously [long] enough to affect the business of governance, the President should, by now, have written to the National Assembly stating the fact [of his illness] and empowering the VP to act on his behalf,” he said.

Olasupo Ojo, the President of the Committee for the Defence of Human Rights, threatened to go court to challenge the legality of the contract should money be released to any of the contractors. He said, “Every meeting the FEC has held so far is illegal. Only the Secretary to the Government of the Federation can summon the meeting of the FEC on the instruction of the President.

This implies that no meeting of the FEC should have been called at all since the President is not around to give such order to the Secretary.” Mr. Ojo said it is, however, too late for the President to write to the National Assembly now. “The constitution says he must do that before proceeding on the leave. Therefore, it is worrisome that the FEC is engaging in such illegality in the presence of the Attorney General, who is supposed to be the chief law officer.”

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  • Peter Olusori

    Though i am not a lawyer or a member of law creative assemblies in Nigeria however, any student of common sense require not much to know that the constitution of our country is very defective and not explanatory enough and even if it is, its implementation and enforcement by the necessary organs concerned is highly sub-standard.

    The constitution, to start with, does not specify succintly the Federal character rotational principle of the position of the Presidency between the six Geo-political zones of the country. Going by the above, the resultant protective tendencies of whichever zones that occupies the stool glarringly becomes obvious and every known and unknown processes will be employed by same during any time of indispositional absence or leave to protect their exalted opportunity.

    Since the Constitution does not clearly give explanatory opinion on the position of Acting President or rather does not confer prerogatrive authority on the Vice President to assume immediate occupation of the position of the Presidency, then a debatable situation surely will arise such like what we are currently experiencing now on what exactly to do in a situation where the President is forced to proceed on a long vacation, leave or absence.

    Every rational school of thoughts would have presumed that the normal thing for an established institution with a well defined line of decisional and delegational authority is for the Vice or Deputy President whichever one is applicable herein to proceed straight in taking over the funtions of his Boss during any short or prolonged absence but the Nigeria specimen is always a symbolic and peculiar case study. The fear of allowing another tribal symbol to occupy what is thought to be a one-off opportuned chance will always come up. This to me, i beleive is the reason why the President has not yet written to the Senate or the FEC asking the Vice President to act in his stead.

    Coming back to the actual reason of the discourse…..my opinion as to those Contracts awarded on behalf of the President is actually a liberal one. As much as the award of those contracts could be regarded as illegal within the parlance of the constitution, it is nevertheless important to look deeply into the following suggestions before an overall summary of illegality could be declared on them:
    a)what does the constitutions says about the procedure giving rise to Acting President.
    b)what is the actual roles and duties of the Vice president when the President is on leave/absence.
    c)who leads a democratic and constitutionally governed nation like ours during a prolong absence of the Head of State
    d)what will the state of governance become if the Head of State has refuse to temporarily transfer power to the necessary quarter when he should have done so.
    e)who knows when the President will be coming back since all we know is that everybody have been kept ignorant of the state of his health.

    My opinion on this could as well be counted as nothing but however this comes out to be, some of us will continue to be proactive with our contributions about our Fathers Land. Jonathan Gudluck is not my favorite kind of person however, i am a fan of the issue of “common sense and knowledgable facts.” If the Vice President and his team of FEC are being constitutionally and politically persecuted for awarding contracts in the absence of the President, what would had Atiku done if same had happened to Obasanjo during their time knowning how ambitious Atiku was then and still is now?

    Though, the contracts have been awarded already and there has been much uproar following it, i nevertheless, will like to advice the Vice President and his team of FEC to take things easy with their rate of ditching out Contracts.

    I will also like to state here that Nigeria belongs to all of us and every ethnical and tribal sentiments that has whittle down the path of authority of the constitutions should be removed as soon as posible and a democratic trend of decisional power transfer should be allowed to take place immediately. The president should come up with his decision on how to transfer power to the appropriate quarter if he is going to continue to be indispose for long.

    God bless Nigeria.

  • Akindele ‘Dipo

    Me think somebody should sue the federal government to allow the judiciary interpret this imbroglio.

  • Sola Attah

    Nigeria is in a big mess , we all need regenerated mind and think straight to move our society forward

  • HeadmanNG

    Our constitution should be written in pidgin for the present crop of Simpletons we have in government.They can’t seem to understand the process and implementation of anything in book form. An unfortunate and shameful trend.

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