Fears of constitutional crisis with sick Nigerian leader

Senior lawyers in Nigeria are warning that a power vacuum in government is creating a constitutional crisis.

Nigeria's president is ill in hospital in Saudi Arabia - without him, there is no-one to swear in the country's Chief Justice. ''Follow the rules. Don't mess around with what has been laid down,'' warns Festus Adebisi Ajayi, firmly. He is eighty-four years old. In his youth, he helped draft Nigeria's first constitution. Fifty years on, and stooping slightly, he worries. ''Any gerrymandering always leads to trouble,'' he frowns.

Three weeks ago Nigeria's constitution suddenly became important, as President Umaru Yar'Adua was rushed to hospital in Saudi Arabia. He is still being treated for heart problems, which come on top of a long-standing kidney complaint. There is no sign of his return - and Nigerians have not been told who is running the country. “ It is a nightmare scenario ” Charles Musa, Lagos barrister, Meanwhile, a deadline is approaching.

The retirement of the chief justice on 31 December is posing a question: Who will swear in the new head of the Supreme Court? ''It is something I wouldn't like to imagine,'' says Charles Musa, a Lagos barrister. ''We need a president to appoint the chief justice by January 1st. If that does not happen, we have a constitutional crisis. The judiciary arm of government will be without its head.'' The idea of a headless executive - alongside a headless judiciary - troubles him. ''It is a nightmare scenario,'' he says. ''People will argue that without leadership from two branches of the government, it is not really a democracy.''

For some, it raises the prospect of flying the new Chief Justice, Justice Katsina-Alu, to take his oath in Saudi Arabia - inside the Nigerian embassy.

Why no handover?

Under Section 145 of the constitution, the president should have written a letter, formally handing power to Vice-President Goodluck Jonathan. Section 145 says the letter should go to the leaders of both chambers of parliament. It was never sent. ''When you bypass laid-down rules to do something, you are experimenting with trouble,'' says Mr Ajayi, quietly.

High stakes

Convention dictates that power rotates between north and south every two terms in office in Nigeria. Vice-President Jonathan is a southerner - and few from the north like the idea of him shortening their "turn" in office. “ For goodness sake, don't let us take a wrong turning ” Festus Ajavi They fear once in the presidential villa, he might find life too comfortable. But the failure to hand over to the vice-president has created a power vacuum.

There have been repeated calls from individuals and the political opposition for the president to stand aside on health grounds. Outwardly, officials from the ruling People's Democratic Party are stamping on the very suggestion. But inside and outside the country, the post-Yar'Adua era is being designed.

One version of the future has Vice-President Jonathan, stepping into the top job temporarily, until elections in 2011. Meanwhile, a new deputy would be appointed. At the polls, Mr Jonathan would step aside, and his deputy would run for the top job. The strength of the PDP makes that candidate likely to win. At least four names whispered in Abuja are considered front-runners. Nigeria's vast oil reserves mean the stakes are high, and the prize enormous.

Retired military leaders and elder statesmen - including former heads of state Olusegun Obasanjo and Ibrahim Babangida - are taking a keen interest, positioning their favoured candidates. Nigerians remember the brutality of military rule, and no-one wants it back. ''For goodness' sake, don't let us take a wrong turning,'' says Mr Ajayi. ''The constitution we had at independence... all of a sudden, it was kicked aside. Kicked aside, and we had a military regime. Because politics was messed up.'' ''I sincerely hope that will not happen again.''

By Caroline Duffield

BBC News Lagos.