Sit-tight officeholder: Between doctrine of necessity and illegality

Since 1999, the failure of indisposed presidents and governors to transmit power to deputies has often led to a dilemma for the legislature to choose between enforcing provisions of the Constitution and defending political loyalty. With the recent experience in Ondo, ADAMU ABUH, YETUNDE AYOBAMI OJO and ADEWALE MOMOH report that the political class has not learnt from history.

The eventual death of Governor Rotimi Akeredolu of Ondo State on December 27, 2023, after months of illness, has again brought to the fore the issue of the doctrine of necessity and intrigues associated with quest for retention of political power.

The doctrine of necessity, which allows extraordinary actions by administrative authority, designed to restore order, or uphold fundamental constitutional principles, was first applied in 2010 when the former President Umaru Yar’Adua was ill and couldn’t perform his constitutional role. Yar’Adua died from the illness and then Vice President, Goodluck Jonathan, mounted the saddle in acting capacity before he was eventually sworn in as president.

In a similar scenario, the loyalists of Akeredolu acted likewise and stalled the seamless transmission of power in Ondo by creating political stumbling block for the then Deputy Governor, Lucky Aiyedatiwa, to step in acting governor’s capacity.

Before then, Taraba State had similar political lock jam in 2015, when former Governor, Danbaba Suntai, did not transmit power to his then deputy, Garba Umar, after he had brain damage in a plane crash.

The intrigues and powerplay that held Ondo State to ransom before the death of Akeredolu have compelled Nigerians to re-examine that aspect of the Constitution that deals with how, time, and the mode of power transmission an ailing elected executive could deploy whenever they are incapacitated and could not perform their constitutional roles.

However, many have expressed concerns about the inability of the lawmakers, both at the federal and state levels to take decisive action and protect public interest by invoking the doctrine of necessity to ensure good governance.

Just as many loyalists and Turai, wife of the former President Umaru Yar’Adua, held Nigerians to ransom when they prevented power from being transmitted to Jonathan in acting capacity, critics alleged that Betty Anyanwu-Akeredolu, did not only try to usurp the former governor’s power, but also went out of her way to conceal the true state of Akeredolu’s health from the people of Ondo, and Nigerians at large.

For instance, the late former President, who had a history of health crises, including kidney complications and pericarditis, (an inflammation of the pericardium), went to Saudi Arabia in late November 2009 for treatment that turned out to be unsuccessful.

After he had been absent from Nigeria for several weeks, many complained of power vacuum in the country with calls on him from rights groups, including the late Akeredolu, as at then, to formally transfer power to Jonathan.

Although a ruling by a Nigerian court on January 29, 2010, indicated that Yar’Adua was not obligated to hand over power to the vice president while he was out of the country for medical treatment, the controversy surrounding his prolonged absence almost stalled governance in the country.

In Yar’Adua’s absence, there were concerns about the lack of clear lines of authority and the president’s fitness to govern. When Yar’Adua eventually returned to Nigeria on February 24, 2010, it was announced that Jonathan would have to remain as acting president while Yar’Adua continued to recuperate.

Yar’Adua never fully recovered, however, he died barely less than three months later to pave the way for Jonathan to assume the mantle of leadership of the country.

Akeredolu’s scenario also brought to memory the case of former Governor Danbaba Suntai, who had a plane crash at the Yola Airport in Adamawa State on October 25, 2012, and sustained a brain injury.

His trip abroad set Taraba State in political controversies and intrigues over his continuous stay as governor despite being incapacitated. Suntai and his handlers refused to transmit a letter to the Taraba State House of Assembly investing his deputy, Garba Umar, with the powers to be governor in acting capacity.

After 21 days of his stay abroad, the legislature invoked Section 190(1) of the 1999 Constitution to swear in Umar, his deputy, on November 14, 2012. This development divided the state as Umar’s supporters mounted a strong propaganda in the media, but Suntai’s group continued to report that the injured governor was recovering fast and that he had a sharp memory.

On August 25, 2013, about 10 months after Suntai’s medical trip abroad, he returned amidst reports that he could not talk. Umar, his deputy, was blocked from receiving him in Jalingo. In less than 72 hours of his return, the ailing Suntai dissolved his cabinet, removed Secretary to the State Government (SSG) and replaced Chief of Staff. It was unclear if he had the mental alertness to take the decision.

It was after the state lawmakers went to visit Suntai that they discovered that he was not in the right state of mind. It was therefore resolved that Umar should continue in acting capacity but should always liaise with those in Suntai’s camp for peace in the state. Within a week of his return, Suntai was flown abroad on the bill of the state to continue his medical treatment.

Also, recall that the immediate past President Muhammadu Buhari after having transferred powers to his vice, Prof. Yemi Osinbajo, thrice in 2016, 2017 and 2018, when he travelled for medical treatment thereafter refused to transfer power to Osinbajo again in 2021 and 2022, allegedly based on some far-reaching decisions the vice president took when his boss was away.

The case of Akeredolu was like that of Suntai, when he was hurriedly brought back from Germany to resume duty. The former governor quickly removed some aides and appointees allegedly loyal to Aiyedatiwa.

But like Turai, the wife of Akeredolu was accused of collaborating with some stakeholders in her husband’s cabinet to ensure Aiyedatiwa did not act. It was reported that the forces also tried to use the Ondo State Assembly to impeach Aiyedatiwa to deny him access to act.

Considering the scenarios surrounding the three events, Nigerians are more concerned how similar occurrences should be prevented in the future. Like Suntai, the late Ondo State governor went on medical vacation abroad without handing over to his deputy, Aiyedatiwa, until public pressure forced him to do so.

When on his return home, he found a home in Ibadan, Oyo State – about an hour drive from Akure the Ondo State – still unable to fully perform his official duties directly, but by proxy, coupled with alleged manipulations by some principal actors, the situation reached boiling point, making President Bola Tinubu to intervene, rightly, to save the situation from degenerating.

But the outcome of the intervention meeting at the Presidential Villa appeared to have doused tension in a way, but called to question, the constitutionality of the action, especially on the issues of allegedly asking Aiyedatiwa to sign an undated resignation letter, as insisted by the Speaker of the state House of Assembly, Oladiji Olamide, which many saw as paving the way for the Speaker to assume office in the event that Akeredolu passes on.

Highlight of the agreements was that the political status quo would be sustained, while Aiyedatiwa was allegedly directed to submit an undated letter of resignation to the President to guarantee that he would not disrupt the political configuration in the state while he runs the government until Akeredolu’s full recovery.

This was ostensibly to ensure that Aiyedatiwa keeps his job and runs the government, but he would not be declared acting governor, despite the dire medical condition of his principal.

However, Section 191 1(1) of the 1999 Constitution, as amended, states: “The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity, or removal of the governor from office for any other reason in accordance with sections 188 or 189 of this constitution.”

Critics wonder why Tinubu sidelined the constitution by ordering Aiyedatiwa to allegedly sign an undated resignation letter.The then All Progressives Congress (APC) national chairman, Abdullahi Adamu, while addressing the APC state chairmen in July last year, said: “We regret to announce the extreme incapacity of the Governor of Ondo State who we understand has been hospitalised overseas. We wish and pray for him for a speedy recovery,” he said, shortly after the governor wrote to the state House of Assembly to extend his medical leave indefinitely.

But a medical report was needed to authenticate that statement, which was never forthcoming. Recall that Akeredolu, as President of the Nigerian Bar Association (NBA), in 2010, was consistent in asking the then ailing President Umaru Musa Yar’Adua to resign, saying: “If our President is not capable of performing his duties anymore, he must resign.”

But finding himself in a similar condition, he was unable to do so, after spending 117 days in a German hospital, but rather supposedly initiated a process of impeachment against his deputy.

IN his comment, a legal practitioner, Abdulrasheed Ibrahim, wondered why a similar occurrence keeps repeating itself under our democracy as if there are no constitutional provisions that deal with it.

He urged the National Assembly to further think with that aspect of the law to make it more explicit, adding that “Why are they afraid of the doctrine of necessity? If a governor is incapacitated, why must his deputy not be allowed to act?

Human rights activist, Kabir Akingbolu, said the President’s intervention cannot supersede the provision of the constitution like witnessed recently in Akeredolu’s case.

In another reaction, Ige Asemudara, a legal practitioner, said, the best way to approach such a situation any other time it happened is to allow the rule of law to reign supreme by applying the constitutional provisions.