Moves to impeach Yar’Adua receives court’s blessings
From GODWIN TSA, Abuja
Wednesday, April 7, 2010


President Umaru Yar’Adua
Photo: Sun News Publishing
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A Federal High Court has cleared the Borno State gubernatorial aspirant of the Democratic Peoples Party (DPP), Alhaji Bukar Al-Amin, and Barrister Max Ozoaka to commence moves of impeaching ailing President Umaru Musa Yar’Adua through the newly constituted executive council of the federation.

Justice Anwuli Chikere specifically granted leave for the applicants to apply for an order of mandamus for the removal of President Yar’ Adua from office on the grounds that he is presently incapable of discharging the functions of his office.

The order in question is to compel the Attorney General of the Federation and members of the Executive Council of the Federation (EXCOF) to convene a meeting for the purpose of the considering and passing a resolution declaring President Yar’Adua incapable of discharging the functions of his office as president of the Federal Republic of Nigeria.

Justice Chikere has, however, asked the applicants to put the respondents on notice within seven days and serve same with the order for the leave.
The ex-parte application, which received the blessings of the court, was brought pursuant to order 34, rules [1] [3] of the Federal High Court.

The applicants, in their suit, are seeking a declaration of the court to the effect that having regard to the prevailing political circumstances in the country, the respondents and members of ECOF, are under an obligation to act upon the provisions of section 144 of the 1999 Constitution of the Federal Republic of Nigeria to consider and pass a resolution declaring President Umaru Musa Yar’Adua incapable of discharging the functions of his office as president of the Federal Republic of Nigeria.

They are also praying for an order of injunction compelling the respondents to carry out and discharge the duty imposed on them by the provisions of section 144 of the 1999 Constitution, to wit; hurriedly convene a meeting of its members for the purpose of considering and passing a resolution declaring President Yar’Adua incapable of performing the functions of his office.

The applicants hinged their action on the following grounds that by virtue of section 144 of the 1999 Constitution, the defendant and members of the EXCOF are under a legal obligation to sincerely and objectively consider and pass a resolution declaring President Yar’Adua incapable of performing the functions of his office.
The applicants, indeed, the entire citizens of Nigeria, are entitled to be politically led and governed at every level in this country, more so at the apex level, by a verifiably healthy citizen.





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[size=14pt]Yar'Adua - Court Gives FEC Two-Week Ultimatum[/size]
Ahuraka Yusuf Isah
[size=14pt]23 January 2010[/size]


Abuja — The Judiciary appears to have finally risen to its responsibility, as a Federal High Court in Abuja yesterday ordered the Federal Executive Council (FEC) to pass a resolution within 14 days on whether President Umaru Musa Yar'Adua has the capacity to discharge the functions of his office as president.

The 14-day ultimatum is contained in the judgement delivered in a suit filed by a former minority leader in the House of Representatives, Hon. Farouk Aliyu and the chairman of the Jigawa State chapter of the Nigerian Bar Association (NBA), Sani Gabbas, against the attorney general of the federation and the entire Federal Executive Council (FEC) members.

In the judgement delivered by the chief judge of the Federal High Court, Justice Daniel Abutu, the call by the plaintiffs to invoke the provisions of Section 144 of the 1999 Constitution and declare that President Yar'Adua is incapacitated was refused by the Court.

In declining to make the pronouncement that President Yar'Adua is no longer fit and proper to continue to undertake the duties of his office having been away in Saudi Arabia for medical purposes since November 23, 2010, the judge said that the Court has no powers to come to that conclusion merely on affidavit evidence.

On why the Court can not hold that the president is incapacitated, Justice Abutu noted that the only body that could take steps in that direction is the Executive Council of the Federation, even as he noted that the name "Federal Executive Council (FEC) is unknown to the 1999 Constitution".

The Court also said that the call by some people for the invocation of section 144 of the constitution would not yield any result, since the Federal Executive Council, has not taken a decision regarding pronouncing the president incapable of discharging his official duties.

The Court also said that "FEC is not mentioned in Section 144 of the constitution and that the only body charged with the responsibility of declaring the president incapable is the Executive Council of the Federation".

Justice Abutu said that when the Executive Council of the Federation meets to consider the health status of the president and takes decision to that effect, the resolution would be transmitted to the president of the Senate and the speaker of the House of Representatives, which bodies would then set up a medical panel of five persons, including the personal physician to President Yar'Adua, who would examine him.

The work of the panel, the court stated would be to make an inquiry into the health condition of the president regarding both the state of his "body and mind" and such findings would be published in the government's official gazette.

It went further to clarify that the date the official gazette is published would mark the very date the president would cease to function as president, just as he noted that same is applicable to the vice president.

He clarified his earlier pronouncements about the vice president saying: "Vice President Goodluck Jonathan has in the absence of the president been performing the functions of the president".

Under this condition, he declared that Vice President Jonathan "cannot be seen to be guilty of any constitutional breach and that there was evidence that he chaired the FEC meeting on December 2, 2009 in the absence of the president".

Responding to the judgement, the AGF who argued the case himself noted that "we will study the judgement to determine whether or not to go to appeal".

The AGF also said that only the Federal Executive Council (FEC) can decide if the president is capable or incapable of discharging his responsibilities.

Besides, he said that even if there is an appeal, the judgement stands, because it cannot act against a stay of execution.

[size=13pt]On the other hand, counsel to the plaintiffs, Barrister Bamidele Aturu while reacting to the judgement, said that it has helped to expand the frontiers of the law at least to know that Federal Executive Council as a name is illegal.

Additionally, he said that FEC should not think that they would arrange for a medical doctor of their choice and give Yar'Adua a clean bill of health, noting further that if such arrangement is done by the FEC to deceive Nigerians, he would go to court to challenge it[/size].

, Another Meaningless Judgement-Keyamo

Barrister Festus Keyamo has described the ruling of the Federal High Court delivered today by the Honourable Justice Abutu as yet another meaningless ruling that would not make any difference.

According to Keyamo, the provisions of section 144 of the 1999 Constitution only compel the Executive Council of the Federation to declare the president unfit through two-thirds of the FEC.

"It is clear that there can be no medical examination of the president and there can be no report of such medical examination of the president to the Senate or the speaker of the House of Representatives, unless there is first a resolution backed by two-thirds of the ministers, declaring the president medically unfit to continue. It is absurd that the medical examination does not come first before the resolution. So on what basis will the ministers pass their resolution? It simply means politics will take precedence over correct medical opinion. And this is another fatal flaw in our 1999 Constitution.


"But the biggest blow to the provisions of section 144 is that it would amount to political suicide or hara-kiri for the ministers who are appointed by Yar'Adua to now vote to remove him from office, which may also sound the death knell for their political future. They will never do that. Anyone expecting anything positive to come out of this ruling should have second thoughts.

"Once again, we are confronted with a meaningless ruling that can only truncate our hopes and prolong our suffering, whilst the nation continues to drift without a captain.

"The only way forward is for the National Assembly to exercise its powers under section 143 of the 1999 Constitution to impeach the president for the gross misconduct of not informing them he was proceeding on leave of absence, and for failing to comply with the constitution by handing over to the vice president, whilst proceeding on leave of absence, Keyamo said.