Analysis: Buhari’s Failure To Transmit Power To Osinbajo Is Unconstitutional

By Festus Ogun

On Tuesday, President Muhammadu Buhari travelled to the United
Kingdom for a “routine medical check-up”.  Expectedly, the
news generated controversies and outrages amongst Nigerians who
believe the President acted immorally and illegally by embarking on
a foreign medical trip at a time the medical sector of the country
is in a shameful mess. While a good number of Nigerians defended
the strict constitutional position in respect of medical trips,
holidays and vacations, the Presidency took turn to state that no
law was breached as the President, who they said can rule from
anywhere in the world, acted within the bounds of law. In this
intervention, therefore, a dissection in respect of the legality of
the routine medical tours and the answer to the question: whether
the President can rule from anywhere would be attempted.

First, the failure of the President to transmit power to the
Vice-President when embarking on medical vacation is
unconstitutional, arbitrary, discriminatory and unconscionable. By
virtue of Section 145(1)(2) of the 1999 Constitution of the Federal
Republic of Nigeria, 2011 as amended, the President is under a
constitutional duty to always transmit power WHENEVER he embarks on
medical vacation or any form of vacation whatsoever. Put simply,
the Constitution has made the transmission of power to the
Vice-President a condition precedent to embarking on medical
vacations.

Section 145(1)(2) of the 1999 Constitution unambiguously
provides that:

“(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.” (Emphasis mine)

Instructively, the provisions of this section are very clear,
straightforward and have raised no ambiguity of any sort. Our
courts have consistently maintained that where the wordings of the
Constitution are lucid, direct and unambiguous, the literal canon
of constitutional interpretation should be adopted. The purport of
the literal rule is that words used in a statute should be accorded
their grammatical, plain, ordinary and natural meaning. The
judiciary, in fact, cannot discretionally expand the meaning
accorded to words of a statute where the meaning is plain and the
strict adherence to the literal meaning would not lead to
miscarriage of justice. A judge has no business (re)making law, let
alone the executive.

In SKYE BANK v. IWU (2017)
LPELR-42595(SC), the Supreme Court, per Kekere-Ekun
JSC, held that “the general rule of interpretation of
constitutional provisions is that where the words used are clear
and unambiguous, they must be given a literal interpretation i.e.
they must be given their ordinary and grammatical meaning”. This,
simply, is the infallible interpretation of the law as handed down
to us by the law lords of the Supreme Court which must be reflected
and abided by in the actions and activities of those in control of
governmental machineries.

From the foregoing, it is clear that the President is under a
legal compulsion to always transmit a written declaration to the
National Assembly – transmitting power to the Vice-President –
whenever he embarks on vacation. The Longman Dictionary of
Contemporary English (7^th Edition) defines
“whenever” as “every time that a particular thing happens”. That is
to mean that every time or any time the President is embarking on
vacation, he is compelled to transmit power to the Vice President
by formally informing the National Assembly. Interestingly, the
Constitution makes use of the word “shall” in the Section. As held
by the Supreme Court in the popular case of ENGR.
CHARLES UGWU & ANOR. V. SENATOR IFEANYI ARARUME & ANOR. (2007)
LPELR-3329(SC), the word “shall” when used in a
statutory provision imports that a thing must be done and that when
the negative phrase “shall not” is used, it implies that something
must not be done. In other words, the word “shall” as used in that
provision implies compulsion.

This legal duty cannot be exercised discretionally as the
President is duty bound to respect, abide and obey it. The
President is subject to the law and cannot continue to recklessly
act as though it is above it. Any form of disrespect to the
provisions of the Constitution, as done by President Buhari,
amounts to an assault on the rule of law and executive lawlessness.
The provisions of the Constitution are too sacred to be violated
arbitrarily by those in charge of power. In MILITARY
GOVERNOR OF LAGOS STATE & ORS. V. OJUKWU & ANOR. (1986)
LPELR-3186(SC), the Supreme Court emphasized the need for
the government to conduct itself within the precinct of the law and
the Constitution; and that is the only way constitutional democracy
can work smoothly and effectively.

Saddened by the obsession of this administration with
lawlessness and impunity, I am compelled to reiterate the provision
of Section 1(1) of the 1999 Constitution that
provides that the Constitution is “supreme and its provisions shall
have binding force on the authorities and persons throughout the
Federal Republic of Nigeria”. For a country governed by law, the
disrespect to the laid down laws and rules will spell nothing other
than doom and disaster as the rule of law is the pillar upon which
a democracy stands.

The argument by the President’s media aide, Mallam Garba Shehu
that the President need not hand over power to the Vice-President
when his vacation is less than 21 days is, with profound respect,
lame, misleading, fictitious and cannot be substantiated in law.
What the law simply implies is that the failure to transmit power
within 21 days would clothe the National Assembly with the
jurisdiction to declare the Vice-President as Acting President.
That is not to mean that the President is not under a legal duty to
transmit power whenever he is embarking on vacation. Remember, the
operative word here is “whenever” and not “when he spends over 21
days”.  The Presidency must immediately desist from turning
the law upside down in satisfaction of their selfish political
interests. A President that took an Oath under the
7^th Schedule of the Constitution to defend and
respect the Constitution should not be caught making exculpatory
rhetorics in defence of shameful constitutional abuses and
executive lawlessness.

The question crying for an answer is: If the President can
transmit power to the Vice President when he embarked on a 10-day
vacation in 2017, what stops him from doing the same at a time his
vacation lasts for a fortnight? If the President can do what is
right then, what prevents him from doing the same in 2021? What
changed?

On the second issue: Whether the President can rule from
anywhere. To be clear, the President of Nigeria has no such power
in law to rule from anywhere especially during the time he embarks
on vacation, non-official foreign trips or “private visit”. Since
Section 145(1) of the Constitution makes it compulsory for the
President to delegate and temporarily hand over power to the Vice
President anytime and every time he embarks on a vacation, it
follows that the President is precluded from acting as the
President of Nigeria on vacation. A President that ought to
transmit power while embarking on vacation cannot validly exercise
Presidential powers from the abroad where he fails to do so.

The intention of the framers of the Constitution is glaring in
this respect; if they had intended that the President should rule
from wherever, the constitutional provision in respect of
transmitting power would have been omitted. In short, the overall
essence of transmitting power is to prevent the exercise of
Presidential powers during vacations. As the Constitution
stipulates the transmission of power at the point of embarking on
vacation, a President that goes on vacation without abiding by the
letters of the law is on a frolic of his own because all acts done
during the period as a President is unconstitutional, null and void
and of no effect whatsoever. All acts done by the President at the
time he unlawfully exercises power as President while on vacation
amount to a nullity, sheer waste of time and zero at the centre of
nothing. Indeed, you cannot put something on nothing and expect
that it stands.

Beyond the legalese, however, I think Nigerians really deserve
to be worried at the audacity the current administration has to
roguishly violate the electoral promises with which it rode to
power. Recall that President Muhammadu Buhari promised to put an
end to foreign medical trips for public officials by improving the
medical sector when he gets to power. On getting to power, it took
Nigerians no time to see through the deceit in his promises. The
medical sector’s messy state has deteriorated to the point that
while the President enjoys the comfort of a foreign medical trip,
resident doctors in the country are on strike due to poor welfare
packages, unpaid salaries and ineptitude of the government. In
fact, the high number of foreign medical trips embarked on by the
President would tempt one to conclude that the President is very
desperate in outshining any past leader known for medical tourism.
I make bold to say that a government that has failed in its duty to
provide adequate medical care for its people lacks the moral right
to embark on foreign medical tours with the peoples resources.
Sadly, public morality has become a thing of the past in our
polity.

Finally, I urge President Buhari to make respect for the rule of
law its foremost priority as a democracy without constitutional
governance hinders peace, progress and unity. With our enormous
challenges in 2021 Nigeria, an issue like disrespect to
constitutional tenets should not even be propping up from our
public conversation. Worryingly, we have a government that has
grown lust for unconstitutionality and arbitrariness. At this
point, in order to avert further constitutional crisis in the
country, the government must listen attentively to the voice of
reason. We can do better and we must!

Festus Ogun is a lawyer-in-equity and human
rights activist. festusogunlaw@gmail.com^[1]

By Festus Ogun

On Tuesday, President Muhammadu Buhari travelled to the United
Kingdom for a “routine medical check-up”.  Expectedly, the
news generated controversies and outrages amongst Nigerians who
believe the President acted immorally and illegally by embarking on
a foreign medical trip at a time the medical sector of the country
is in a shameful mess. While a good number of Nigerians defended
the strict constitutional position in respect of medical trips,
holidays and vacations, the Presidency took turn to state that no
law was breached as the President, who they said can rule from
anywhere in the world, acted within the bounds of law. In this
intervention, therefore, a dissection in respect of the legality of
the routine medical tours and the answer to the question: whether
the President can rule from anywhere would be attempted.

First, the failure of the President to transmit power to the
Vice-President when embarking on medical vacation is
unconstitutional, arbitrary, discriminatory and unconscionable. By
virtue of Section 145(1)(2) of the 1999 Constitution of the Federal
Republic of Nigeria, 2011 as amended, the President is under a
constitutional duty to always transmit power WHENEVER he embarks on
medical vacation or any form of vacation whatsoever. Put simply,
the Constitution has made the transmission of power to the
Vice-President a condition precedent to embarking on medical
vacations.

Section 145(1)(2) of the 1999 Constitution unambiguously
provides that:

“(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.” (Emphasis mine)

Instructively, the provisions of this section are very clear,
straightforward and have raised no ambiguity of any sort. Our
courts have consistently maintained that where the wordings of the
Constitution are lucid, direct and unambiguous, the literal canon
of constitutional interpretation should be adopted. The purport of
the literal rule is that words used in a statute should be accorded
their grammatical, plain, ordinary and natural meaning. The
judiciary, in fact, cannot discretionally expand the meaning
accorded to words of a statute where the meaning is plain and the
strict adherence to the literal meaning would not lead to
miscarriage of justice. A judge has no business (re)making law, let
alone the executive.

In SKYE BANK v. IWU (2017)
LPELR-42595(SC), the Supreme Court, per Kekere-Ekun
JSC, held that “the general rule of interpretation of
constitutional provisions is that where the words used are clear
and unambiguous, they must be given a literal interpretation i.e.
they must be given their ordinary and grammatical meaning”. This,
simply, is the infallible interpretation of the law as handed down
to us by the law lords of the Supreme Court which must be reflected
and abided by in the actions and activities of those in control of
governmental machineries.

From the foregoing, it is clear that the President is under a
legal compulsion to always transmit a written declaration to the
National Assembly – transmitting power to the Vice-President –
whenever he embarks on vacation. The Longman Dictionary of
Contemporary English (7^th Edition) defines
“whenever” as “every time that a particular thing happens”. That is
to mean that every time or any time the President is embarking on
vacation, he is compelled to transmit power to the Vice President
by formally informing the National Assembly. Interestingly, the
Constitution makes use of the word “shall” in the Section. As held
by the Supreme Court in the popular case of ENGR.
CHARLES UGWU & ANOR. V. SENATOR IFEANYI ARARUME & ANOR. (2007)
LPELR-3329(SC), the word “shall” when used in a
statutory provision imports that a thing must be done and that when
the negative phrase “shall not” is used, it implies that something
must not be done. In other words, the word “shall” as used in that
provision implies compulsion.

This legal duty cannot be exercised discretionally as the
President is duty bound to respect, abide and obey it. The
President is subject to the law and cannot continue to recklessly
act as though it is above it. Any form of disrespect to the
provisions of the Constitution, as done by President Buhari,
amounts to an assault on the rule of law and executive lawlessness.
The provisions of the Constitution are too sacred to be violated
arbitrarily by those in charge of power. In MILITARY
GOVERNOR OF LAGOS STATE & ORS. V. OJUKWU & ANOR. (1986)
LPELR-3186(SC), the Supreme Court emphasized the need for
the government to conduct itself within the precinct of the law and
the Constitution; and that is the only way constitutional democracy
can work smoothly and effectively.

Saddened by the obsession of this administration with
lawlessness and impunity, I am compelled to reiterate the provision
of Section 1(1) of the 1999 Constitution that
provides that the Constitution is “supreme and its provisions shall
have binding force on the authorities and persons throughout the
Federal Republic of Nigeria”. For a country governed by law, the
disrespect to the laid down laws and rules will spell nothing other
than doom and disaster as the rule of law is the pillar upon which
a democracy stands.

The argument by the President’s media aide, Mallam Garba Shehu
that the President need not hand over power to the Vice-President
when his vacation is less than 21 days is, with profound respect,
lame, misleading, fictitious and cannot be substantiated in law.
What the law simply implies is that the failure to transmit power
within 21 days would clothe the National Assembly with the
jurisdiction to declare the Vice-President as Acting President.
That is not to mean that the President is not under a legal duty to
transmit power whenever he is embarking on vacation. Remember, the
operative word here is “whenever” and not “when he spends over 21
days”.  The Presidency must immediately desist from turning
the law upside down in satisfaction of their selfish political
interests. A President that took an Oath under the
7^th Schedule of the Constitution to defend and
respect the Constitution should not be caught making exculpatory
rhetorics in defence of shameful constitutional abuses and
executive lawlessness.

The question crying for an answer is: If the President can
transmit power to the Vice President when he embarked on a 10-day
vacation in 2017, what stops him from doing the same at a time his
vacation lasts for a fortnight? If the President can do what is
right then, what prevents him from doing the same in 2021? What
changed?

On the second issue: Whether the President can rule from
anywhere. To be clear, the President of Nigeria has no such power
in law to rule from anywhere especially during the time he embarks
on vacation, non-official foreign trips or “private visit”. Since
Section 145(1) of the Constitution makes it compulsory for the
President to delegate and temporarily hand over power to the Vice
President anytime and every time he embarks on a vacation, it
follows that the President is precluded from acting as the
President of Nigeria on vacation. A President that ought to
transmit power while embarking on vacation cannot validly exercise
Presidential powers from the abroad where he fails to do so.

The intention of the framers of the Constitution is glaring in
this respect; if they had intended that the President should rule
from wherever, the constitutional provision in respect of
transmitting power would have been omitted. In short, the overall
essence of transmitting power is to prevent the exercise of
Presidential powers during vacations. As the Constitution
stipulates the transmission of power at the point of embarking on
vacation, a President that goes on vacation without abiding by the
letters of the law is on a frolic of his own because all acts done
during the period as a President is unconstitutional, null and void
and of no effect whatsoever. All acts done by the President at the
time he unlawfully exercises power as President while on vacation
amount to a nullity, sheer waste of time and zero at the centre of
nothing. Indeed, you cannot put something on nothing and expect
that it stands.

Beyond the legalese, however, I think Nigerians really deserve
to be worried at the audacity the current administration has to
roguishly violate the electoral promises with which it rode to
power. Recall that President Muhammadu Buhari promised to put an
end to foreign medical trips for public officials by improving the
medical sector when he gets to power. On getting to power, it took
Nigerians no time to see through the deceit in his promises. The
medical sector’s messy state has deteriorated to the point that
while the President enjoys the comfort of a foreign medical trip,
resident doctors in the country are on strike due to poor welfare
packages, unpaid salaries and ineptitude of the government. In
fact, the high number of foreign medical trips embarked on by the
President would tempt one to conclude that the President is very
desperate in outshining any past leader known for medical tourism.
I make bold to say that a government that has failed in its duty to
provide adequate medical care for its people lacks the moral right
to embark on foreign medical tours with the peoples resources.
Sadly, public morality has become a thing of the past in our
polity.

Finally, I urge President Buhari to make respect for the rule of
law its foremost priority as a democracy without constitutional
governance hinders peace, progress and unity. With our enormous
challenges in 2021 Nigeria, an issue like disrespect to
constitutional tenets should not even be propping up from our
public conversation. Worryingly, we have a government that has
grown lust for unconstitutionality and arbitrariness. At this
point, in order to avert further constitutional crisis in the
country, the government must listen attentively to the voice of
reason. We can do better and we must!

Festus Ogun is a lawyer-in-equity and human
rights activist. festusogunlaw@gmail.com^[1]