The Supreme Court, the nation�s apex court, will, today determine whether or not Vice President Atiku Abubakar will retain his seat despite his defection to the Action Congress (AC)
In addition, the apex court will pronounce whether or not President Olusegun Obasanjo has the constitutional powers to declare the seat of the vice president vacant.
The Court of Appeal had, in its judgment of February 20, 2007, held that Atiku remains the vice president till the expiration of his tenure on May 29, 2007.
Also, the appellate court declared that President Obasanjo has no powers to withdraw, tamper or interfere with or violate the immunity conferred on the plaintiff as the vice president by that section and or direct his arrest or prosecution.
The court, in a unanimous judgment, directed the Federal Government to restore all the paraphernalia of the office of the vice president to Atiku.
In determining whether Atiku can remain in office after defecting from the Peoples Democratic Party (PDP) to AC, the court held that the vice president�s action cannot disqualify him from holding the office since he had only exercised his constitutional right to peaceful assembly and association as provided under Section 40 of the 1999 constitution and should not suffer any impediment in joining any association of his choice.
Section 40 reads: “Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union or any other association for the protection of his interest.”
In its judgment, the court held that President Obasanjo lacked the constitutional powers to declare the seat of the vice president vacant, since the vice president is not his employee.
Dissatisfied with the judgment, the Federal Government approached the Supreme Court to set aside the ruling of the Court of Appeal and to declare the seat of the vice president, vacant.
Government, which rooted its appeal on 20 grounds, said it was dissatisfied with the decision of the Court of Appeal, Abuja. According to government, “a situation of absurdity, anarchy, disorder, political rascality and threat to national security would arise if, for instance, in the case of death, the leader of AC, a rival political party, were to head the government of PDP.
However, in its notice of appeal, filed by Chief Afe Babalola (SAN), government is challenging the entire judgment on the following grounds:
o The learned Justices of the Court of Appeal erred in law when they held that the principle of single mindedness and absolute loyalty to the president by the vice president is unknown to the constitution.
o The learned justices of the Court of Appeal erred in law when they held that the insertion of the word “associate” in Section 142 (1) is a matter of mere detail and therefore, do not affect the relationship of the president and the vice president.
o The learned justices of the Court of Appeal erred in law when they held that the plaintiff�s tenure subsists in spite of the submission of the plaintiff�s leading counsel in his book entitled, “Constitutional Democracy in Africa, Vol. 4”, which was placed before the court where he advocated at Page 78:”However, the unity contemplated by the arrangement transcends the election.
The conception underlying it is that the vice-president should be inseparable from the president and should stand or fall with him, both at the polls and while in office. He is joined to him in a constitutional union based on the absolute loyalty of the one to the other. The vice is conceived in the role of the chief executive�s right-hand man. More importantly, as will be explained further later, he is not a co-beneficiary of the executive power, this being vested in the president alone.
“Nevertheless, having done this, the principle of collective responsibility binds him to all government decisions or actions, whether they emanated from the president alone or from the Executive Council. So long as he remains in office as vice president, he is not free to oppose, in public, decisions or actions of the president or of the executive council, no matter that he personally disagrees with them.
His freedom to disagree and to criticize can only be exercise privately in a meeting with the president alone or in the Executive Council. Freedom on the part of a vice president to criticize his president publicly for mismanagement or corruption is certainly not consistent with the loyalty required of him as a member of the president�s team. It is worse still that a vice president should make mismanagement or corruption by the president, a reason for seeking openly to contest the office against him, the book said.
According to government, “where as in this case the counsel for the plaintiff claims that the tenure of the vice president still subsists and turns round to claim that the vice president is, by his conduct not qualified to remain in the office and should resign, the duty of the court was to dismiss the plaintiff�s claim.”
It is also the submission of the appellants that “by imposing a condition that the vice president must be an associate of the president and must be from the same political party as the president, the makers of the constitution intended that the programme and policy of the sponsoring political party are duly implemented without interruption by an antagonist or a member of a rival party opposed to the president�s.”
They also faulted the judgment of the Court of Appeal on the ground that the learned justices erred when they held as follows: “The sum total of these authorities is that the general provision contained in S.146 (3) (c) will by implication excluded from the previous specific provisions enacted in Section 146 (3) (a) and (b) because it cannot be presumed that the intention of the makers of the constitution is to give a right with one hand and take same away by the other.”
The legal team of the vice president had, in its response to the appeal, urged the court to discountenance the submissions of the Federal Government and to up hold the decision of the Court of Appeal.