Table of Contents:

Introduction
A Cocktail of Illegalities
A Cacophony of Legal Opinions
What the Constitution Says
Atiku's AC Candidacy and His Probable "Refugee" Status
Epilogue

INTRODUCTION

These are most interesting times in Nigeria , so interesting that Nigerians and keen watchers of Nigeria with implanted heart pacemakers had better be very careful.

Well, according to a recently quoted statement over this President Olusegun Obasanjo/Vice-President Atiku Abubakar imbroglio:

QUOTE

....[the] National Publicity Secretary, Alhaji Lai Muhammed, AC said "just when we thought this lawless party [THE PDP] and its visionless leaders have reached rock bottom in their acts of brigandage, they over-reached themselves by perpetrating the mother of all illegalities."

UNQUOTE

He was referring to the announced declaration by the Obasanjo PDP administration that Atiku had "technically resigned" his position as Vice-President by opting last Tuesday December 19 to become the presidential flag-bearer for the opposition party the Action Congress (AC), and that hence the position had been declared "vacant" and would soon be filled upon "wide consultations."

If, according to Lai Muhammed,  this is the "mother of all illegalities:, then the "father of all illegalities" in this case may be for the Vice-President to in turn "sack" the President by ORCHESTRATING his expulsion from the PDP!   Then this "father" and this "mother" of illegalities would have really given constitutional natural birth to the twins of "confusion" and "chaos", rather than the adopted child that we now have: "consternation."

"Na wa o!,"  to exclaim in Nigerian vernacular !

A COCKTAIL OF ILLEGALITIES

Any one who states that there is no justification for sacking Atiku in the 1999 Constitution is absolutely right.   The fact of the matter is that President Obasanjo and the PDP have shown quite some contempt for the constitution, and displayed a CONTINUING PATTERN of illegalities in their desperate bid to nail Atiku's bid to succeed Obasanjo.   It is in fact bizarre, the kind of vindictiveness being visited on a man (Atiku) who loaned some of his enormous resources to the party efforts in Election 1999 and Election 2003 - even joining in the cutting of a National Victory Cake after this rigged latter election.   He  has had no substantial policy difference with the government save in its undemocratic efforts at term extensions (both second-term in 2003 and third term in 2006.)  

In a compedium that I recently compiled titled "STAR COMPENDIUM: The Court Entanglements of Vice-President Atiku Abubakar vis-a-vis EFCC and President Obasanjo", I documented 7 RULINGS by judges ALL OVER NIGERIA, coming from DIFFERENT ETHNIC BACKGROUNDS IN NIGERIA slamming down ALL THE ACTIONS taken against Atiku by this administration so far.   I repeat them in summary here, all favoring Atiku:

1. OCTOBER 20, 2006 - A favorable ruling at an Abuja High Court by Justice Goodluck

2. NOVEMBER 6, 2006 - A favorable ruling at an Abuja Federal Court by Justice Augie

3. NOVEMBER 6, 2006 - A favorable ruling at an Abuja Federal High Court by Justice Anwuri Chikere

4. NOVEMBER 28, 2006 - A favorable ruling at a Lagos High Court by Justice Inumidun Akande

5. DECEMBER 1, 2006 - A favorable ruling by Justice Adekeye at Abuja Court of Appeal

6. DECEMBER 8, 2006 - A favorable ruling at an Abuja FCT High Court by Justice Oniyangi

7. DECEMBER 20, 2006 - A favorable ruling at a Federal High Court in Abuja by Justice Anwuri Chikere

If it had been only in a Lagos High Court, we could have said that the judge was under Governor Tinubu's subornation.   If the rulings in Abuja had been by   only Yoruba judges, Obasanjo, a Yoruba himself, might have said that they were people who did not like him anyway.   If they were ONLY by Igbo judges or Northern judges, the irony is that he could have said the same thing!   But the eclectic nature of the ethnicity and geography of the rulings is clear.

Thus that this administration has demonstrated a CLEAR PATTERN OF ILLEGALITIES when it comes to the affairs of Atiku is incontrovertible.

A CACOPHONY OF LEGAL OPINIONS

The irony is that different LEGAL EXPERTS have started to come out of the woodworks with various interpretations, as they always will in cases that they term to be "complex."

In this respect, we should forget Chief Gani Fawehinmi (SAN) who claims that the actions of the government so far are constitutional on this matter. I am on record for 13 years now since the pro-democracy June 12 days as stating that Fawehinmi is a legal show-boat,   a very brave but dangerous legal luminary, always looking  for legal opinion to suit his most current biases.     Yes, sometimes one may favor those biases, at other times one may not, but they are ALWAYS his biases, never yours, and when they violate yours, they can be pretty annoying howlers.

I am not a lawyer, but I am a law afficionado.  I have a private LAW maxim: the more "complicated" a case looks, the easier non-legal minds can cut through the deal and come up with a verdict which, in general, will be the correct one.

EVERY ONE keenly following the Obasanjo/Atiku imbroglio, and having a dispassionate view of things KNEW that all the above 7 rulings

would be in Atiku's favor because the processes that he complained against were quite palpably biased, just as the present cases protesting this "mother of illegalities" will also be ruled in his favor in the law courts.

WHAT THE CONSTITUTION SAYS

But what does the Constitution actually say?

A very simple study of the relevant Sections 141-146 of the Nigerian Constitution will make it clear that outside of five reasons [resignation, death,

medical incapacity, impeachment, accession to presidency (due the president's own resignation, death, medical incapacity or impeachment)], the Vice-President cannot be removed from his present position.

Follow me here:

• Section 141 simply establishes the VP's office.
• Section 142 has to do ONLY with "candidacy" for "nomination", not "tenure" for "continuation in office."
• Section 143 spells out a CLEAR and DETAILED ROLE for the  National Assembly BEFORE any such declaration of vacancy can even be made, and that it must involve "stating that the holder of the office of President or Vice-President is guilty of gross misconduct in the performance of the functions of his office......'gross misconduct' means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct." . This states ."PERFORMANCE OF THE FUNCTIONS OF HIS OFFICE," not in his VIEWS OR ACTIONS INVOLVING PARTY AFFAIRS. The section spells out days for institution of panel hearings, right to defend himself before such panels, etc.
• Section 144 is inapplicable because it refers to medical grounds for both the VP and President's removal.
• Section 145 is applicable only to the President proceeding on vacation and leaving matters to the VP.
• Section 146(1) is crucial: "The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 of this Constitution..."
• Also 146(3)(a) is also critical: "(a) by reason of death or resignation, impeachment, permanent incapacity or removal in accordance with section 143 or 144 of this Constitution.   Again, note that it states...."IN ACCORDANCE WITH SECTION 143 or 144......" - so these two sections refer BACK to Section 143 in particular almost in a recursive manner, and do not stand on their own.

  The section which certain constitutional thugs wish to refer to, viz: 146((3)(c) which states that "(c) for any other reason....."  is in fact already taken care of in Section 146(1), which states "...any other reason must be in accordance with Section 143.

  So I rest my case on the Constitution, and I am POSITIVE that the new legal filings which Vice-President Atiku Abubakar has done on his own behalf will positively vindicate him.   He will therefore remain as Vice-President, with all the rights, responsibilities and privileges attached thereto.  He will then still be under immunity, and will not be "arrestable".   He would still be "de jure" Vice President, if not "de facto."  Even our own Fayose is still "de jure" Executive Governor of our Ekiti State, even though he is a fugitive hiding from his own shadow, and is still being sought to come and explain himself briefly to the Ekiti people.

  ATIKU'S AC CANDIDACY AND HIS CURRENT PROBABLE "REFUGEE" STATUS  

  As to the presidential candidacy of Atiku within the Action Congress AC, that remains interesting.   My verdict is that it remains INTACT provided his name has been submitted to INEC, as it has; provided it has not been withdrawn by the AC or by himself, and provided he is not DISQUALIFIED by INEC, which can ONLY be due to any subsequent IMPEACHMENT or otherwise INDICTMENT from this date onwards.    None of the charade that went on before - i.e. the EFCC investigation, the Bayo Ojo panel, the Federal gazette, the latest ridiculous "expulsion" in the PDP leading to his "sacking", hold water, because they have ALL been thrown out by the 7 rulings that I quoted above, and would be thrown out soon by new legal rulings.

  Is there ANY provision in the 2006 Electoral law that says that the candidate must be PHYSICALLY PRESENT in Nigeria during the elections?  Absolutely not!  His Vice-Presidential partner and his other well-wishers can campaign on his behalf.   He can do so via video- and audio-links, if he believes that he will be unduly harassed by the powers-that-be, even if he is under immunity. 

  So I believe that if Atiku wishes to stay in the US - or at some other friendly refuge - until election day April 21, 2007, that act by itself does not disqualify him from the elections.   I stand to be corrected.

  Now, it does look as if the battle will be between PDP's surprise Yar'Adua/Jonathan ticket, ANPP's repeat Buhari/Ume-Ezeoke ticket and AC's controversial   Atiku/XYZ,  where the last two tickets will not be fullly decided until February 21, 2007 pending the working out of the AC/ANPP Memorandum of Political Understanding.  Of those three, theYar'Adua ticket is the weakest in terms of experience and clout, but has going for it only the might of the incumbent rigging ability of the ruling party machinery.  

  There may yet be great surprises if the opposition works hard to severely limit rigging through voter education and mobilization, voting process documentation and other vote protection means..

  Now if people do not vote for the AC presidential ticket because they don't see their Presidential candidate PHYSICALLY around inside Nigeria, then fine.   But if Omisore can win his Senatorial seat from prison, surely a candidate tucked away abroad in safety from fascist harassment can also win, if that is God's will.   The history of the world is filled with candidates who have won from abroad and returned home triumphant - if that is what the Lord wills.

  But understand this point:  even if Atiku loses at the polls - or if, as it is quite possible and most probable, eventually AC makes a deal to ask voters to support ANPP Buhari's presidency rather than its own - which would be consistent with the AC/ANPP Memorandum of Understanding - then Atiku will at least have proved one point:   that OBASANJO and the PDP, despite all their machinations, did not PREVENT him from running for the Presidency.   He would have shown manly balls. Yes, they may have successfully prevented him from running under the PDP; they may have successfully prevented him from becoming president;   but fortunately there are OTHER parties under which he was able to run, try as they mightily did to prevent him completely.

  EPILOGUE

  Let no one MISTAKE my statements above for personal SUPPORT for Atiku Abubakar, even if he is the presidential flag-bearer of a political party that I support.   After all, 18 people voted "No" AGAINST his flag-bearing aspirations on his "coronation" day last Tuesday ( December 19, 2006 ) out of about 6,000 delegates at the AC convention at the Tafewa Balewa Square .  Who is to tell that I was not one of those 18 by proxy, ehn?  :-)

  In any case, this macabre political drama is still in Act 1, Scene 1, and the plot is still unfolding.   Let us keep to our seats - although this is a drama in which some of us onlookers should periodically get onto the stage to force certain directions of the script:   the matter is TOO SERIOUS for us ALL to be mere onlookers!

  Finally, I just returned from church, where we sang this last verse of the popular carol "O Come, O Come, Emmanuel"

  QUOTE

  O come, Desire of nations, bind 
  In one the hearts of all mankind;
  Bid Thou our sad divisions cease;
  And be Thyself our King of Peace.

  UNQUOTE

  It struck me as a very appropriate prayer for these times, both for Nigeria .

  Please you all have yourself a Merry Christ-mas and a very prosperous New Year - even under the present macabre political circumstances!

  Bolaji Aluko, Esquare

  Quack Constitutional Lawyer

  Shaking his head and scratching it

  And asking "What the...?"