A friend, Mal Isah Babayo, asked thus: “Neither the
President nor the acting President is in the country. Who’s in
charge of Nigeria? What did the constitution say about
this?”
He was alluding to the recent travel of his Excellency, the Acting
President, to represent Nigeria at the 29th Ordinary Session of the
African Union held on Monday, 3rd July, 2017 at Addis Ababa,
Ethopia.
Though the Acting President is said to have already returned to
Nigeria, my friend’s question raised a serious legal issue that may
need to be addressed because, the extreme situation of absence of
the President and the Acting President may actually come to pass,
even in many years to come, since the constitution is a living
document. Therefore, I attempted to answer him to the best of my
knowledge as follows:
To start proper, the Acting President Prof. Yemi Osibanjo has no
power or duty to transfer “Presidential” power to anybody
constitutionally, even in an occasion where he travelled outside
Nigeria, or he cannot temporarily discharged his duties beyond 21
days. Let me explain proper.
By the provision of Section 145 of the Constitution, there are
two reasons that will necessitate the temporary transfer of power
from the President to his Vice to serve as an Acting President,
which are:
1. Where he is proceeding on vacation, i.e. medical or
otherwise; or
2. Where he is temporarily unable to discharge the duties of his
office;
He should transmit a letter to each House of the National
Assembly notifying them of any of the above 2 situations, and from
then, until he transmits a letter saying that he is back to resume
his duty, the Vice President will automatically become an Acting
President.
But by section 145(2), if the President is away on vacation for
more than 21 days, or temporarily failed to perform his duties for
more than 21 days, each House of the National Assembly will pass a
resolution mandating the Vice President to act as an Acting
President.
See:
“145.—(1) Whenever the President is proceeding on vacation or
is otherwise unable to discharge the functions of his Office, he
shall transmit a written declaration to the President of the Senate
and the Speaker of the House of Representatives to that effect, and
until he transmits to them a written declaration to the contrary,
the Vice-President shall perform the functions of the President as
Acting President.
(2) In the event that the President is unable or fails to transmit
the written declaration mentioned in subsection (1) of this section
within 21 days, the National Assembly shall, by a resolution made
by a simple majority of the vote of each House of the National
Assembly, mandate the Vice-President to perform the functions of
the office of the President as Acting President until the President
transmits a letter to the President of the Senate and Speaker of
the House of Representatives that he is now available to resume his
functions as President.”
Two points to note here are that by the provision of 145:
1. Even if the President is proceeding on vacation, there is no
need for him to think of passing “Presidential” power to anybody,
except if he knows that he will stay beyond 21 days, or his absence
may ground certain work that may require President’s Personal
attention;
2. But the big issue here is that, Section 145 of the
constitution, did not state what the Acting President, or any other
authority should do if he is also going to be temporarily absent,
say beyond 21 days, like the President. The Constitution is silent
on this, and to the best of my knowledge if something like that
comes up, there is a Constitutional vacuum.
Some people commented that the Acting President should transfer
power to the Senate President. But that, I humbly believe, is not
the position of the law as far as temporary absence is concerned.
The only situations where the President of the Senate will hold
Presidential office is where the offices of the President and the
Vice President become vacant by reason of death, resignation,
impeachment, permanent incapacity or the removal of the President
from office for any other reason in accordance with section 143 or
144 of the Constitution (mark you, not in accordance with section
145). The President of the Senate will hold the office of the
President for a period of not more than 3 months within which he
must conduct election for a new President who will finish the
remaining tenure of the last holder of the office.
See:
“146.—(1) The Vice-President shall hold the office of
President if the office of President becomes vacant by reason of
death or resignation, impeachment, permanent incapacity or the
removal of the President from office for any other reason in
accordance with section 143 or 144 of this Constitution.
(2)Where any vacancy occurs in the circumstances mentioned in
subsection (1) of this section during a period when the office of
Vice-President is also vacant, the President of Senate shall hold
the office of President for a period of not more than three months,
during which there shall be an election of a new President, who
shall hold office for the unexpired term of office of the last
holder of the office.”
Therefore, even where the Acting President is going to be out of
the country, or be unable to perform his duties for a period beyond
21 days, nobody can take away power from him except either he
becomes permanently incapacitated; he is removed; he resigned; or
he died.
But one last clarification, as I said earlier, is that only
powers meant to be exercised by the President or Acting President
personally are in issue here. Other things that are delegable can
be performed by Ministers and heads of other MDAs.
Finally, Section 14 of The Constitution of the Federal Republic
of Nigeria (First Alteration) Act, 2010 has left much to be
desired. I hope this will provoke legal discourse that will make
the National Assembly to do the needful and provide for a third
option like Section 146 (2), in case of any unforeseen temporary
circumstance in accordance with Section 145, that may arise, before
it arises, and leave Nigeria’s fate in the hands of propagandists,
opportunists and religious, tribal, or ethnic jingoists.
Hussaini Hussaini is a legal Practitioner, based in Abuja, and can
be reached through hussaini4good@gmail.com
A friend, Mal Isah Babayo, asked thus: “Neither the
President nor the acting President is in the country. Who’s in
charge of Nigeria? What did the constitution say about
this?”
He was alluding to the recent travel of his Excellency, the Acting
President, to represent Nigeria at the 29th Ordinary Session of the
African Union held on Monday, 3rd July, 2017 at Addis Ababa,
Ethopia.
Though the Acting President is said to have already returned to
Nigeria, my friend’s question raised a serious legal issue that may
need to be addressed because, the extreme situation of absence of
the President and the Acting President may actually come to pass,
even in many years to come, since the constitution is a living
document. Therefore, I attempted to answer him to the best of my
knowledge as follows:
To start proper, the Acting President Prof. Yemi Osibanjo has no
power or duty to transfer “Presidential” power to anybody
constitutionally, even in an occasion where he travelled outside
Nigeria, or he cannot temporarily discharged his duties beyond 21
days. Let me explain proper.
By the provision of Section 145 of the Constitution, there are
two reasons that will necessitate the temporary transfer of power
from the President to his Vice to serve as an Acting President,
which are:
1. Where he is proceeding on vacation, i.e. medical or
otherwise; or
2. Where he is temporarily unable to discharge the duties of his
office;
He should transmit a letter to each House of the National
Assembly notifying them of any of the above 2 situations, and from
then, until he transmits a letter saying that he is back to resume
his duty, the Vice President will automatically become an Acting
President.
But by section 145(2), if the President is away on vacation for
more than 21 days, or temporarily failed to perform his duties for
more than 21 days, each House of the National Assembly will pass a
resolution mandating the Vice President to act as an Acting
President.
See:
“145.—(1) Whenever the President is proceeding on vacation or
is otherwise unable to discharge the functions of his Office, he
shall transmit a written declaration to the President of the Senate
and the Speaker of the House of Representatives to that effect, and
until he transmits to them a written declaration to the contrary,
the Vice-President shall perform the functions of the President as
Acting President.
(2) In the event that the President is unable or fails to transmit
the written declaration mentioned in subsection (1) of this section
within 21 days, the National Assembly shall, by a resolution made
by a simple majority of the vote of each House of the National
Assembly, mandate the Vice-President to perform the functions of
the office of the President as Acting President until the President
transmits a letter to the President of the Senate and Speaker of
the House of Representatives that he is now available to resume his
functions as President.”
Two points to note here are that by the provision of 145:
1. Even if the President is proceeding on vacation, there is no
need for him to think of passing “Presidential” power to anybody,
except if he knows that he will stay beyond 21 days, or his absence
may ground certain work that may require President’s Personal
attention;
2. But the big issue here is that, Section 145 of the
constitution, did not state what the Acting President, or any other
authority should do if he is also going to be temporarily absent,
say beyond 21 days, like the President. The Constitution is silent
on this, and to the best of my knowledge if something like that
comes up, there is a Constitutional vacuum.
Some people commented that the Acting President should transfer
power to the Senate President. But that, I humbly believe, is not
the position of the law as far as temporary absence is concerned.
The only situations where the President of the Senate will hold
Presidential office is where the offices of the President and the
Vice President become vacant by reason of death, resignation,
impeachment, permanent incapacity or the removal of the President
from office for any other reason in accordance with section 143 or
144 of the Constitution (mark you, not in accordance with section
145). The President of the Senate will hold the office of the
President for a period of not more than 3 months within which he
must conduct election for a new President who will finish the
remaining tenure of the last holder of the office.
See:
“146.—(1) The Vice-President shall hold the office of
President if the office of President becomes vacant by reason of
death or resignation, impeachment, permanent incapacity or the
removal of the President from office for any other reason in
accordance with section 143 or 144 of this Constitution.
(2)Where any vacancy occurs in the circumstances mentioned in
subsection (1) of this section during a period when the office of
Vice-President is also vacant, the President of Senate shall hold
the office of President for a period of not more than three months,
during which there shall be an election of a new President, who
shall hold office for the unexpired term of office of the last
holder of the office.”
Therefore, even where the Acting President is going to be out of
the country, or be unable to perform his duties for a period beyond
21 days, nobody can take away power from him except either he
becomes permanently incapacitated; he is removed; he resigned; or
he died.
But one last clarification, as I said earlier, is that only
powers meant to be exercised by the President or Acting President
personally are in issue here. Other things that are delegable can
be performed by Ministers and heads of other MDAs.
Finally, Section 14 of The Constitution of the Federal Republic
of Nigeria (First Alteration) Act, 2010 has left much to be
desired. I hope this will provoke legal discourse that will make
the National Assembly to do the needful and provide for a third
option like Section 146 (2), in case of any unforeseen temporary
circumstance in accordance with Section 145, that may arise, before
it arises, and leave Nigeria’s fate in the hands of propagandists,
opportunists and religious, tribal, or ethnic jingoists.
Hussaini Hussaini is a legal Practitioner, based in Abuja, and can
be reached through hussaini4good@gmail.com
Read more https://nairalaw.com/what-if-osibanjo-is-also-away-for-long-by-hussaini-hussaini/