Why President should obey constitutional provisions, by lawyers
FRANCIS IWUCHUKWU writes that lawyers are of the unanimous views that President Muhammadu Buhari is under a constitutional duty to always transmit power to Vice-President Yemi Osinbajo whenever he embarks on medical trip or vacation abroad
Some senior lawyers have expressed their displeasure over the persistent failure of President Muhammadu Buhari to transmit power to Vice-President Yemi Osinbajo whenever he is out of the country on medical or any other trip.
The lawyers spoke on the heels of similar concerns raised by the leader of the Pan-Niger Delta Forum (PANDEF), Chief Edwin Clark, during a press briefing last week, wherein he questioned the action of President Muhammadu Buhari. Clark accused the president of breaching the Constitution for refusing to formally transmit power to Vice-President Yemi Osinbajo, before flying to London for his routine medical check-up.
The elder stateman while noting that the Vice-President had over time proved his competence in ruling Nigeria while he acted as president in 2017 when President Buhari was out of the country for over 100 days, said the President is taking Nigerians for granted and violating Section 145 of the Constitution which mandates him to hand over power when he is travelling.
The PANDEF leader also faulted Buhari’s position that he can only transmit power when his trip exceeds 21 days, saying it is unknown to the Constitution.
“What Section 145 says is that the President shall transmit to the National Assembly, the President of the Senate, and the Speaker of the House of Representatives, whenever he will be away on medical vacation.
“And in his absence, the Constitution empowers the Vice-President to act as the President. And the word ‘shall’ is used there”, Clark argued. While wondering what could be the fear of Buhari in handing over power to Osinbajo, Clark went down memory lane on the number of times the president had embarked on foreign trips since he assumed office.
His words: “Buhari left for the UK on June 6, 2016, for his first medical vacation following reports that he had an ear infection. He returned on June 19, 2016. On January 19, 2017, the president again travelled to the UK on medical leave and returned on March 10, 2017, after spending 51 days.
“Barely 40 days after, Buhari travelled again to the UK for medical attention on May 8, 2017, and remained there till August 19, 2017, spending 104 consecutive days, a record which surpassed that of the late President Umaru Yar’Adua. “After attending the 72nd UN General Assembly on September 21, 2017, he travelled from the US to the UK for medical purposes and returned to Abuja on September 25, 2017.
On May 8, 2018, four days after arriving in Nigeria, Buhari returned to the UK for medical reasons and he returned on May 11. “The president again travelled to London on a working leave on August 3, 2018, and returned on the 18th, spending a total of 16 days.
His handlers said during interviews that ‘he may just see his doctors briefly during the visit’. “On April 25, 2019, Buhari arrived in the UK for a 10-day ‘private visit’, returning on May 5, 2019. Although, information was not given on the purpose of the trip.
“Again, on November 2, 2019, he proceeded on a 15-day ‘private visit’ to London, following bilateral talks in Saudi Arabia. He returned to the country on November 17. “In 2020, the president did not leave the country for a single medical trip, presumably due to travel restrictions resulting from the COVID- 19 pandemic, but on March 30, 2021, he resumed his medical visits with a two-week trip to London.
“On June 24, the president postponed another planned medical trip to the UK, which he later went for a check-up after the scheduled education summit and return to the country in the second week of August. “President Buhari has so far spent over 200 days out of the country on medical vacation.
Unfortunately, he is reluctant to hand over power to the Vice-President as he prefers foreign hospitals against those in the country he presides over”. Clark further contended that President Buhari has been utilising taxpayers’ money for medical trips and as a result, he should make known to Nigerians the disease he is suffering from.
He further contended that the lack of transmission of power to Vice-President Goodluck Jonathan by President Umaru Musa Yar’adua, had triggered a constitutional crisis which led to the adoption of doctrine of necessity and as such, Buhari should not take Nigerians for granted. “Nigeria belongs to all of us; we are not running a banana state. Buhari is taking Nigerians for a ride.
He doesn’t have the right to jet out to London without handing over power to the Vice-President in line with the Constitution. “At 95 years old, my group has seen enough of this country for more than 70 years. Nigeria is bleeding and only God knows how much of taxpayers’ money must have been spent by the President on his health. It is arrogant for Buhari to think he can govern Nigeria from abroad.
He should hand over power to Osinbajo. “The Constitution of the nation is the grundnorm, and every aspect of it must be obeyed. Thus, Section 145 is mandatory and not discretional.
The transmission of a letter to the National Assembly (NASS) ought to be automatic, and the President of the country does not have a choice to tinker with it, whether to comply or not. A president’s inability, to perform his functions, even for a few hours, mandates such action of transmitting a letter to NASS. This is what is done by any responsible government.
“Therefore, it should not be treated as breaking news, taking the whole nation by surprise, especially since it was not an emergency. President Buhari must have long secured this appointment with his physicians for the check-up.
“The President of Nigeria is constitutionally bound to inform Nigerians of whatever ailment or disease he is suffering from for which government money is being spent. Nigerians will understand; he is human, and that is why the framers of the Constitution provided Section 145. Unfortunately, up till now, Nigerians does not know how much of tax-payers money is being spent on their presidents.
“For President Muhammadu Buhari, to be consistent, as this will not be the first or second time of disobeying the laws of the land in this regard, despite complaints by the citizenry, is very disheartening.
If there are doubts about this provision of the nation’s Constitution, the Supreme Court should be approached for interpretation, rather than outrightly disregarding the laws of the land by someone who has sworn to uphold, keep and protect them.
“Unfortunately, nobody bothers to take appropriate measures to ensure that the right things are done, particularly in a situation where the President of the Senate is in partnership with the Executive, and is willing to do whatever the Executive says. I insist we have had more than enough. We are not in a military regime, where people are treated as conquered people.
At 95 years old, my group has seen more than enough having been involved in the affairs of this country for over 70 years. “One is forced to wonder, what are the fears of President Buhari. He has a competent and fit Vice, in the person of Prof. Osinbajo, who is very able to hold the forte. He proved this in 2017, when Mr President was away on one of his numerous medical vacations.
“The nation is bleeding financially, yet the government of the day undertakes wasteful ventures. We understand that files are taken to Mr President abroad whenever he is away for him to append his signature. “This is spending money and other resources recklessly.
Not to talk about the cost of parking the Presidential jet outside the country, with the number of personnel and security details who accompany Mr President on these trips. These are avoidable expenses and must be stopped. Presently, the nation is so indebted, that it is feared that the debt burden is left for future generations of Nigerians to bear.
“It is a mere expression of arrogance of power for Mr President to think that he can run Nigeria, a country with more than 200 million people, from far away London, something he has not done effectively even when he is in the country.
“In his absence, the Constitution empowers the Vice-President to act as the President. And the word shall is used there. Where does Mr President get that one from? That one does not exist, except that’s another Constitution. “Overseeing the affairs of the government as Acting President is a must because the Constitution used the word shall which is obligatory. And anything done outside it is unconstitutional and illegal”, he added.
Statement on Buhari’s trip
It would be recalled that on Monday, October 31, 2022, presidential spokesperson, Femi Adesina, had notified Nigerians that President Buhari will embark on a journey to London for a “routine medical check-up,” and that he would be returning to the country in the second week of November. Adesina’s statement reads: “President Buhari leaves for London October 31, 2022, for routine medical check-up. He returns to the country 2nd week of November 2022″.
Constitutional provisions on power transmission
Section 145 (1) and (2) of the Constitution provides that: “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.
“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”.
Buhari’s position on power transmission
President Buhari had sometimes in 2019 posited that the only time he needed to hand over to Osinbajo is when he is proceeding on leave or going to be out of the country for more than 21 days.
The position of the president was contained in a six-paragraph counter-affidavit deposed to on his behalf by one, Friday Atu, a Litigation Officer in the Civil Litigation Department of the Federal Ministry of Justice.
Buhari’s affidavit is in response to a suit instituted by human rights lawyer, Inibehe Effiong, who had sued the Attorney-General of the Federation and Minister of Justice, over the failure to hand over power to Osinbajo in April 2019. The case, with suit number FHC/L/CS/763/2019, was filed before a Federal High Court in Lagos.
Effiong specifically asked the court to determine whether, in view of the extant provisions of Section 145 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Buhari can validly proceed on vacation for any length of time without transmitting a written declaration to the National Assembly to that effect, which will empower the Vice-President to perform the functions of the President in an acting capacity.
The human rights crusader equally urged the court to determine whether Buhari’s action in proceeding on vacation to the UK from April 25, 2019, to May 5, 2019, without transmitting the written declaration envisaged in Section 145 (1) of the Constitution to National Assembly is not in conflict with the provisions of Section 145 (1) of the Constitution.
However, In his response, Buhari stated that the Constitution does not make it mandatory for him to transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives to enable the Vice-President to act as President except when his vacation exceeds 21 days.
In his judgement on the suit, Justice Ayokunle Faji held that Buhari was not under any duty to hand over to Osinbajo since his private visit was less than 21 days. In the meantime, an appeal was reported to have been lodged by the plaintiff against the judgement.
In his comments on the issue, a Lagos-based Senior Advocate of Nigeria (SAN), Victor Okpara, who explained that the provision of the law is very clear as to the transmission of powers to the Vice-President if the President is going on a medical trip, explained that it may not be appropriate to transmit power to the vice-president if the president is going out of the country for three to four days.
Okpara said: “It is not every time the President transmits power to the Vice-President as it were. It is not as if the Vice-President is powerless.
The Vice-President has powers under the Constitution and has his duties as it were. “Governance will not come to a standstill because the President is out of the country on a medical trip. If the President goes out of the country for a lengthy period, then, he ought to transmit power to the Vice-president”.
On his part, Mr. Seyi Sowemimo (SAN), posited that if the President is going out of the country for a prolonged period, he should transmit power to the Vice-President. He said: “But what you find out is that there is no disposition on the part of the president to even do it whether long or short.
“Since the time he last did that, which was around the time the DSS boss was removed by the Vice-President when he ruled in an acting capacity, the President has not had that disposition to transmit power to the Vice-President. It is not ideal, and it is not something one would encourage for any regime to do.
“Anytime the President has to travel abroad for medical reasons, it is an indictment on our medical services as a nation”. On his part, Mr. Olukayode Enitan (SAN) noted that “Section 145 of the 1999 Constitution which provides for when there should be an Acting President during temporary absence of the President has no provision for number of days or weeks or how long the absence of the President from the country should be, but provides for whenever the President will be on vacation or unable to discharge the functions of his office.
“This clearly showed that there are two separate situations that are to trigger the transmission of a letter, i.e. vacation which could be medical as in the present circumstance or any form of inability to discharge the functions of the office. It is unfortunate that everything is seen from the prism of a power grab in this country.
“Of course, the President is meant to trigger the Acting Presidency by transmitting a letter to the Senate President and Speaker of the House of Reps that he’s going away”. A rights activist, Festus Ogun, argued that Buhari’s failure to transmit power to Professor Osinbajo when embarking on medical vacation remains unconstitutional, arbitrary, discriminatory and unconscionable.
He said: “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”.