12 Jan. 2010 Atedo N A Peterside OON published this Open Letter to the Federal Executive Council (“FEC”) in his capacity as a Member of the National Economic Management
It is now over 7 weeks since President Yar ‘Adua was rushed to Saudi Arabia for treatment. We know that the President did not sign and deliver to the Senate President and Speaker a declaration that he is either going on vacation or unable to discharge the functions of his office in accordance with Section 145 of our Constitution. Some say that he verbally told the Vice President on the telephone to take charge. It is fair to conclude therefore that either our President believes that he is still capable of directing the affairs of the nation effectively or he is now in a physical and/or mental state which renders him incapable of determining that this is the appropriate time to invoke Section 145 and seek to hand over properly to the Vice President.
Our Constitution is not perfect. No Constitution ever is. However, if you are lost at sea and all you have to guide you is a slightly stained or dirt-smeared compass that is still capable of directing you back to land, then you have no choice but to quickly use that compass to good effect. Certainly, that will not be the appropriate time to contemplate a redesign of the compass – a task which can and should wait until after you are safely back to land?
Unfortunately, the nation is becoming increasingly polarised between those who claim that the President is too sick to understand that he should invoke Section 145 of the Constitution and seek to handover properly to the Vice President and those who believe that all that “hullabaloo” is unnecessary as the President is actually recovering and still very much in charge. It is sad that the evidence before the rest of us is still so scanty that it gives room to all manners of speculation as to whether the President is still able to exercise his executive functions effectively.
Let me quickly add that my prayers are with the President. The Lord knows that he is the only President that I ever voted for in my life who finished up being sworn into office. In the past, I voted for opposition candidates or the election was annulled or I did not vote at all because the electoral arrangements were a sham or I watched helplessly as democracy and federalism were being assaulted.
For those who remember, in the run up to the Presidential elections in 2007, the opposition tried to denigrate then Governor Yar ‘Adua and Governor Goodluck Jonathan as puppets. I was amongst those who dismissed this “labelling” and voted for them to become President and Vice-President respectively because I was at a Dinner at the Civic Centre in Lagos, when they were first presented to the business community as Candidates for the highest offices in the land. Governor Yar ‘Adua (as he was at the time) addressed us and laid out his thoughts and ideas for close to 30 minutes without looking at any notes. I was impressed by what I heard him say. I subsequently went to a smaller and more private dinner where Governor Goodluck Jonathan (as he was at the time) also addressed a small group of businessmen in Victoria Island after dinner without looking at any notes. I was also impressed by what I heard him say.
In truth, I was excited, but cautiously optimistic. I was excited because I realised we could have a President and Vice President who were both well educated and sincere. I did not think they were “rocket scientists”, but then I did not believe and I still do not believe even now that we need a rocket scientist in Aso Rock. As a student of economic history I know of several nations that have achieved rapid economic growth and transformation in periods when a President and/or Vice President with lesser credentials held the reins of power. That is why I was cautiously optimistic about Nigeria’s future and still remain so.
The nation is now perceived to be enmeshed in a political impasse which is hampering even private sector investment decisions and that has negative repercussions for our economy and therefore the well being of our people.
By all accounts, the Vice-President has refrained from assuming the President’s full powers without following the due process spelt out in the Constitution and I agree with him. If the President has not evoked Section 145 of the Constitution then the only other legal means through which the Vice-President can take charge effectively is by the Members of the Federal Executive Council (FEC) evoking Section 144 of the Constitution if they feel that the President is currently incapacitated or through a wider group (including the legislature) seeking to remove the President from office for misconduct by invoking Section 143 of the Constitution. This latter action (S.143) is, in my opinion, clearly inappropriate because ill health is clearly not tantamount to misconduct. Unfortunately, only Ministers who have accurate information on the state of the President’s health and/or have unfettered access to the President can have the confidence to evoke Section 144 because it could amount to political suicide if a small group of ministers initiate such an action, but fail to secure a two-thirds vote and it turns out that they acted prematurely on the basis of scanty and unverified information.
Some people have turned to the Courts but then I do not see a quick solution there. In any case I have argued before that our legal system can only resolve a suit on who has authority to administer medication to an acutely sick patient many years after the patient might have died.
In a parliamentary system of government, opposition politicians have very little to lose by constantly seeking to pass a vote of no confidence on the Prime Minister/the Government. Being in the minority, they can usually only succeed if “rebels” from the ruling party break ranks and side with them.
Evoking Section 144 of Nigeria’s Constitution to provide leadership where a President is incapacitated is a totally different proposition. The only People entitled to vote on this are the Ministers who were appointed by the President. It is true that many of them were nominated by their Governors, but then the fact remains that they remain ministers because the President appointed them and did not fire them. I believe that for the purposes of evoking Section 144 of the Constitution, only the Ministers are entitled to vote and not even the Vice-President who currently Chairs FEC.
No right thinking person wants to be portrayed politically as seeking to bite the hand that fed him. Vice President Jonathan appears to be genuinely loyal to the President and has never had the profile of a power-hungry deputy seeking to “topple” the President. That is a remarkably good quality and it makes for political stability.
However, what if the President is truly in a physical or mental state that renders him incapable of invoking Section 145 of the Constitution to hand over properly to the Vice President? In my opinion, this is certainly not the time to attempt to amend Section 144 of the Constitution. Nor is this the time to re-examine the Vice-President’s credentials – we did that already before we voted in 2007. We have to prepare to use the only “compass” that we have and that is Section 144 of the Constitution unless the President evokes Section 145.
My proposal for resolving this political impasse is borrowed from principles enshrined in corporate governance and risk management. If you make it too risky for ministers to act in the national interest, then they may not act on time. A whistle blower might never blow a whistle, if he will be publicly identified and accused of disloyalty.
Some commentators have already started accusing the Ministers (I think unfairly) of being unable to put the nation’s interests above their personal interests, in the sense that they (the Ministers) are actually enjoying the leeway and latitude that is implicit in an arrangement in which the only boss who can fire them is a President who is away sick. The Vice President can oversee FEC Meetings in the President’s absence, but he has no powers to sack any Minister. Each Minister can ask himself the question; why replace a President who is currently incapable of monitoring my conduct properly with a new President who may fire me for non-performance? YES, a conflict of interest exists!
The good news is that we have quite a few ministers who are good and respectable human beings and who are clearly patriotic. However, we need to encourage them to apply risk management tools to manage or mitigate the risks that they face. Hence my proposal below:-
The Way Forward
1) The Vice President should commence Weekly FEC meetings henceforth with a summary factual update on the President’s health which should be followed by a Confidence Vote i.e. those Ministers who believe that the President is not incapacitated will have an opportunity to affirm that enough of their colleagues still agree with them to maintain the status quo;
2) Using a secret ballot, each Minister would be required to indicate YES or NO to the question whether he believes that the process of evoking Section 144 of the Constitution should commence;
3) Each Minister should insert his YES or NO vote on ballot paper and insert same in a box;
4) I believe there are a total of 42 Ministers. It should take a few minutes for the votes to be counted, the results announced and the used ballot papers burnt/destroyed immediately in the full view of the Ministers;
1) The nation will therefore only know the overall result of the weekly Confidence vote. The reason for burning/destroying the used ballot papers is to avoid “dirty tricks” and to ensure that nobody can go back to attempt to decipher through finger printing or other technology which Minister voted for or against the proposition to evoke Section 144 of the Constitution;
2) The reason for making the vote weekly is to save the Ministers from the “ordeal” of having to decide when next to call for a new vote if the house is divided and the votes fall short of a decisive majority after the initial vote. The realisation that there will be another Confidence vote next week also incentivises the President’s family and close aides to be more open and share more information with the Ministers on the true state of the President’s health and also incentivises the President to contact more ministers if he is in a position to do so or to himself evoke Section 145 of the Constitution. In effect, we would have initiated a seamless “trial and error” process by Ministers who have the Constitutional responsibility to step into this matter, while affording them the protection that is accorded to corporate whistle blowers;
3) The ruling People’s Democratic Party (PDP), the State Governors, and other elected representatives etc will be incentivised to “work overtime” and take the process even more seriously because they will be aware that the clock is ticking each week. The rest of us can also put pressure on the Ministers (and there is at least one from each of the 36 States) to weigh new information properly and act in the nation’s interest during next week’s vote, notwithstanding the conflict of interest that I alluded to earlier.
4) After the PDP leadership has established a firm consensus on the way forward, they can advise the Ministers to “toe the line” by requesting the Vice President to drop the requirement for a secret ballot in favour of an open televised ballot at the weekly FEC Meeting following such a decision .
5) It is unfair to expect the Vice-President (who has recently been chairing the weekly FEC meetings) and who could be a beneficiary in the event that the Ministers fail to record the prescribed confidence vote, to aggressively canvass for a second vote next week if the first one fails. An agreement upfront for a weekly “Confidence” vote by the Ministers obviates the need for actions by the Vice President which could be misconstrued as being “overly ambitious or aggressive.”
6) If all the successive weekly votes fail to attain the two-thirds majority required to evoke Section 144 and our President returns hail and hearty (as we pray that he does) then he resumes in Aso Rock and has no means of identifying which ministers voted unsuccessfully in favour of evoking Section 144 of our Constitution during his long absence;
In writing this piece I deliberately did not consult any elected political office holder or any Minister even though I have access to a good number of them on account of my membership of the National Economic Management Team. I would like to apologise to all such persons and to explain that I did not consult them because I wanted to shield them from any unfair accusations. I also want to publicly declare that if the Vice President becomes the Acting President through the President evoking Section 145 of the Constitution or if he becomes President through the Ministers evoking Section 144 of same, then I hereby disqualify myself from holding any paid public office during his tenure.
The only person I consulted when writing this piece was a lawyer that specialises on corporate governance and governance processes. I did the same when I was appointed Chairman of the Committee that recommended a Code of Best Practices for Public Companies operating in Nigeria in 2003. The subject matter may be different but the principles are very similar. In some ways, the FEC operates like a Board of Directors of a public company. One essential difference is that the number of “shareholders” that the FEC has to protect is all 140 million Nigerians plus generations unborn. It is our duty to remind them at times like this that they hold our fate in their hands and to give them “food for thought”, hence this piece.
The PDP leadership can allow the Ministers to receive updates on the President’s health and vote based on their conscience thereafter in the weekly Confidence votes, until such time as a broader consensus is reached by the Party on the way forward, after which they can advise the Ministers to toe the party line through an open televised ballot.
The President’s family and close aides should readily embrace the above proposals because it gives them a chance to prove conclusively to the whole world that they are not “acting alone” or “misinforming and intimidating” Ministers and that they are, as a minimum, carrying the Ministers and, indeed, the Party leadership along on the true state of the President’s health.
The last time I took out a paid advert to comment on the political situation of our nation was in August 1993, when I argued that the then Head of State, General Ibrahim Babangida (IBB) must go, following his persistent mishandling of the political transition process and his controversial annulment of the 12 June 1993 elections. That piece was also entitled “How to break this political impasse”. IBB did “step aside” a few weeks after. I had hoped that I would never have to write again on how to resolve a political impasse in my country during my life time.