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Following the
death of President Umaru Yar’Adua last week, the Vice President,
Goodluck Jonathan, assumed the post of the President pursuant to
section 146 (1) of the Constitution. As the new President, he is
required by section 146(3) to appoint a Vice President with the
approval of each House of the National Assembly. It has been contented
in some quarters that he is bound to pick a candidate sponsored by the
Peoples Democratic Party (PDP).

As far as the 1999
Constitution is concerned, the nomination and the appointment of the
Vice President are within the exclusive discretion of the President
subject to the approval of the National Assembly. If the Constitution
had wanted the ruling political party to nominate or sponsor the Vice
President it would have said so in unambiguous terms.

In making a case
for the nomination of the Vice President by the PDP, reliance has been
placed on sections 137 and 142 of the Constitution. As both sections
essentially deal with the nomination and qualification of the running
mate of the President for purpose of election, they are totally
irrelevant with respect to the appointment of the Vice-President
envisaged by section 146(3) of the Constitution.

In the celebrated
case of Attorney-General of the Federation v. Atiku Abubakar (2007), it
was the contention of the President, Olusegun Obasanjo, that the Vice
President was deemed to have resigned his post having decamped from the
PDP to the Action Congress contrary to the provisions of sections 137
and 142 of the Constitution.

In rejecting the
contention, the Supreme court held, abundanti cautela “That the
Constitution intends the Vice President to be an associate of the
President does go beyond the time the election was conducted and they
have won.” See also the case of PDP v.INEC (1999) 11 NWLR (PT 626) 200.

In view of the
fact that we are not dealing with an election in which a presidential
candidate is not compulsorily required to pick a running mate sponsored
by the same political party, President Jonathan is not under any legal
obligation to appoint a PDP member as Vice President.

Even where section
147(5) of the Constitution states that “No person shall be appointed a
Minister of the Government of the Federation unless he is qualified to
be a member of the House of Representatives” it has not been suggested
that by any right thinking person that every Minister has to be a
card-carrying member of the ruling political party.

It ought to be
made abundantly clear that the election of the President and the Vice
President on a joined ticket should not be confused with the
appointment of the Vice President by the President following the death
of a sitting president. In any case, since the Constitution has not
created any role for the PDP or the Governors’ Forum in the nomination
and appointment of the Vice President, the President should proceed to
appoint a competent Nigerian of his choice, subject of course, to the
approval of the National Assembly.

Femi Falana is a lawyer and human rights activist