In a response to an enquiry by the Punch Newspaper on the
controversial ‘’private visit’’ of President Muhammadu Buhari to
the United Kingdom and the President’s refusal to transmit a letter
to the National Assembly which would have enabled the Vice
President, Prof. Yemi Osinbajo, to become the Acting President
pending Mr. Buhari’s expected return to the country on May 5, 2019,
the Senior Special Assistant to the President on Media and
Publicity, Mr Garba Shehu told the Punch Newspaper thus:
‘’No, that is not necessary. The President can
exercise authority from wherever he is as he is currently doing.
This is a relatively short absence. If you check Section 145 (1)
and (2) of the Constitution, you will see that the law is only
infringed upon when such absence externs to 21
days.’’
In faulting Mr. Shehu’s position above, it is pertinent to
reproduce Section 145 (1) and (2) of the Constitution
of the Federal Republic of Nigeria, 1999 (as
amended), which will subsequently be referred to as
‘the Constitution’, cited by him in aid of his defense of his
principal.
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.’’
The literal, grammatical and commonsensical reading of
Section 145 (1) and (2) supra evinces the true
purport of the said provisions and does not leave any room for
ambiguity or debate as to the actual intention of the framers of
the Constitution. The law is trite that the Constitution is a
living document and must be given a liberal interpretation to
fulfil the intention of its framers. The celebrated Supreme Court
decision in BRONIK MOTORS LTD & ANOR v. WEMA BANK
(1983) ALL NLR 272 is instructive on this point.
According to the Cambridge English Dictionary, whenever means
‘’every or any time’’. The same
dictionary also defines vacation as ‘’a time when
someone does not go to work or school but is free to do what they
want, such as travel or relax’’.
President Buhari does not have the discretion or prerogative to
embark or proceed on vacation outside the mandatory constitutional
framework of Section 145 (1) and (2) of the Constitution. It is
immaterial that the President’s spokesperson, Mr. Femi Adesina,
mischievously decided to play with words when he referred to the
President’s 10-day visit to the United Kingdom as ‘’a private
visit’’.
If Adesina by his evasive statement, intended to distinguish the
instant foreign trip of his principal from the vacation enshrined
in Section 145 (1) and (2) of the Constitution, he unfortunately,
has ended up exposing his ignorance of the law and contempt for the
Nigerian people. The President’s so-called private visit is a
vacation simpliciter. It is a distinction without a
difference to assert a contrary view.
I am convinced that Mr. Garba Shehu did not seek sound legal
opinion on the subject from the Attorney General of the Federation
before clothing himself with the apparel of ‘a self-taught
constitutional guru’ when he quoted Section 145 (1) and (2) of the
Constitution authoritatively and proceeded to interpret it
wrongly.
For starters, Section 145 (1) of the
Constitution imposes a duty on the President. It is not a
provision of convenience. The word used in Section 145 (1) is
‘’shall’’ which is a word of command and not permissive. See
UGWU & ANOR V. ARARUME &
ANOR (2007) 6 S.C. (Pt. 1) 88 where
the Supreme Court reiterated the compulsive meaning of the word
shall when used in an enactment.
As shown earlier, ‘’whenever’’ in this context implies that
every or any time the President is proceeding on vacation he must
transmit a written declaration to the President of the Senate and
the Speaker of the House of Representatives to that effect.
The Constitution does not say that the President should transmit
a written declaration if his vacation externs to or exceeds 21
days. That is a strange and indefensible attack on the spirit and
letters of Section 145 (1) of the Constitution. Mr. Shehu’s
proposition is with respect, an invention of his imagination. The
Constitution expressly says ‘’whenever’’ (every time or any time).
The fact that the president is proceeding on vacation for less than
21 days does not derogate from his duty to transmit a written
declaration to the National Assembly.
Section 145 (2) only becomes operative and
applicable if the President violates his constitutional duty under
subsection (1) of Section 145. In other words, the National
Assembly is authorised to intervene and pass a resolution
empowering the Vice President to become the Acting President where
the President violates subsection (1) by refusing or failing to
transmit a written declaration as enjoined for a continuous period
of 21 days.
There is no legal or moral justification for the President to
commit such grave constitutional infraction even for one day. A
grave violation of the Constitution amounts to gross misconduct
which is an impeachable offense under Section 143 of the
Constitution.
To say that Nigeria should remain for 10 days without a
president or an acting president, is to say the least
reprehensible. It becomes grossly offensive for the president’s
spokesperson to go further to claim ridiculously that the president
of the Federal Republic of Nigeria can exercise his presidential
authority from anywhere.
The Nigerian Constitution does not have extra-territorial
application. The President of Nigeria cannot exercise presidential
powers from anywhere.
To put it in perspective, two examples will suffice: First,
President Buhari cannot exercise his authority under
Section 58 (1) of the Constitution to assent to
Bills passed by the National Assembly in the United Kingdom. He
also cannot exercise his authority under Section 148 (2) of
the Constitution to preside over the regular (weekly)
Federal Executive Council meeting from the United Kingdom, or
anywhere outside the territory of the Federal Republic of
Nigeria.
The authority of the British Prime Minister over the affairs of
the United Kingdom cannot be exercised in Nigeria, neither can the
President of Nigeria govern or exercise authority over the affairs
of Nigeria from the United Kingdom.
There is a reason why responsible foreign leaders in saner
climes usually abort their foreign trips and return home upon the
occurrence of national disasters or emergencies in their countries.
It is not just for convenience sake; it is also because their
constitutional authority either as President or Head of State,
cannot be insulated from their state (country).
It is also apparent that Mallam Garba Shehu is either not aware
or does not appreciate the traumatic historical mischief sought to
be cured by the National Assembly when Section 145 of the
Constitution was altered in 2010 by Section 14 of the
Constitution of the Federal Republic of Nigeria (First Alteration),
Act, 2010 and replaced with the now Section
145 (1) and (2) of the Constitution (as amended).
To refresh Mr. Shehu’s memory, it bears restating that Nigeria
was thrown into palpable tension and deadly constitutional crisis
when the Late President Umaru Musa Yar’Adua was flown abroad for
medical treatment and he failed to transmit a written declaration
(letter) to the National Assembly to enable his then Vice
President, Goodluck Jonathan, to become the Acting President in his
absence.
Following the dire situation which had prolonged resulting in an
abuse of power by a vicious unpatriotic cabal who took advantage of
the vacuum and arrogated powers to themselves, undermined Jonathan
and overreached the nation, the National Assembly changed the law
on the issue.
Before discussing the constitutional amendment embarked upon by
the National Assembly in response to the ill-health crisis of the
late Yar’Adua, it is important to reproduce the former (now
repealed) provisions of Section 145 of the Constitution, it
provided that:
145 ‘’Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives a written declaration that he is proceeding on
vacation or that he is otherwise unable to discharge the functions
of his office, until he transmits to them a written declaration to
the contrary such functions shall be discharged by the
Vice-President as Acting President.’’
The National Assembly subsequently decided to bury the lacuna in
the now repealed Section 145 of the Constitution above by doing
three things essentially:
First, Section 145 was spited into two subsections which is now
Section 145 (1) and (2) as reproduced above. Second, under
subsection (1) of the new Section 145, the discretion of the
President to determine when or whether to transmit a written
declaration to the National Assembly whenever he is proceeding on
vacation or unable to discharge the functions of his office was
taken away.
The new subsection (1) now reads: ‘’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…’’
This means that any time the President is proceeding on vacation
(irrespective of whether he chooses to call it a private visit or
whatever name), he must transmit a written declaration to the
National Assembly upon which the Vice President will become the
Acting President.
The new position of the law as contained in subsection (1) of
Section 145 will not only be lost, the ghost of the lacuna in the
repealed Section 145 buried by the National Assembly in 2010 when
the new constitutional regime was birthed will also be resurrected,
if Mr. Shehu’s skewed interpretation were to be followed.
The third essential amendment to the repealed Section 145 is
contained in subsection (2) of the new Section 145 of the
Constitution wherein the National Assembly is authorised to bypass
the President and pass a resolution empowering the Vice President
to become the Acting President where the President violates
subsection (1) by refusing or failing to transmit a written
declaration as enjoined, for a continuous period of 21 days. The
National Assembly did not possess such power under the repealed
provision. That was why they resorted to the infamous ‘Doctrine of
Necessity’ which was invoked for Mr. Goodluck Jonathan to become
the Acting President.
Let me say that Nigeria will continue to be an gigantic
embarrassment to the African continent and retain its disgraceful
dark spot on the map of a progressive world until the leaders of
this country and their appointees appreciate and accept to abide by
basic tenets of democratic and civilized societies.
It is to the shame of the present administration that citizens
of a 21st century Nigeria, have been arrogantly told
that their President, who rode to power on a mantra of change, will
be out of the country for 10 days for reasons that the presidency
has classified and treated as official secret, not subject to full
public disclosure.
Mr. Buhari must first resign as president if he wants to be
accorded his right to privacy under Section 37 of the
Constitution. But as long as his oath of office subsist,
and he continues to enjoy the benefits and privileges accruable to
the office of the President of Nigeria, he remains a public
institution and his activities both at home and abroad, must be
subjected to public scrutiny.
The health of the President of a country is never a private
affair. The President cannot be using taxpayers’ money to fund his
vacation (or private visit as they choose to call it) and at the
same time tell the same taxpayers to shut-up and not interrogate
his activities. There is nothing private about the office of the
President.
This egregious effort to reduce Nigeria to a banana republic
must be resisted by all Nigerians of good conscience.
Inibehe Effiong is Lagos-based Constitutional Lawyer
and Human Rights Activist.
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References
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inibehe.effiong@gmail.com
(nairalaw.com)