Presidential Leave: Between Constitutional Debate and Compliance - THISDAYLIVE
The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com
I wonder whether there’s any country in the world, where they do as much constitutional debating as Nigerians do! Every week, it’s a new section of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) that is considered; yet, beyond these debates, there are never any tangible outcomes. Instead, where it is obvious that there are vacuums in the Constitution that require filling, or provisions that should be amended or redrawn, they are left without being addressed, while the State and citizens in practical terms, observe the Constitution in the breach and sometimes run with the wrong interpretation of the grundnorm.
Debate is not a substitute, for compliance or constitutional amendment. Many a time, we even rely on convention in constitutional matters, instead of the Constitution itself. But, Section 1(1) & (3) of the Constitution is clear that the Constitution is supreme and binding, and any law that is inconsistent with it, is void to the extent of its inconsistency. The decision of the Judicial Committee of the Privy Council in Adegbenro v Akintola [1963] AC 614 which overturned the majority decision of the Federal Supreme Court, also made it clear that where there is a written Constitution, its provisions override convention. This case concerned the interpretation of the Western Region Constitution, vis-à-vis the process of removal of the Premier of Western Region.
Last week, in one way or the other, Section 145 of the Constitution, concerning the transmission of power to the Vice President during the temporary absence of the President, was a serious subject of debate.
Within the Section 145 debate as to whether President Bola Tinubu, GCFR should have transmitted power to Vice President Kashim Shettima, GCON when he proceeded on vacation, is the argument as to whether both President and Vice President should travel out of the country at the same time. I will consider the debate within the debate first, because the response is straightforward. There is nothing in the Constitution, that prohibits the President and Vice President from being out of the country simultaneously.
Could it simply be an informal practice, that may have developed during the military era? Whatever the reason for this informal practice, it was maintained during the Obasanjo, Yar’Adua and Jonathan administrations, and was broken under President Muhammadu Buhari, GCFR, when there were two overlaps in 2019 and 2022, when he and Vice President Yemi Osinbajo, GCON, SAN, were out of the country simultaneously. The two not travelling out of the country simultaneously, is an informal practice that doesn’t have the force of law. But, today, the opposition seems to be making a big deal, out of President Tinubu and Vice President Shettima’s simultaneous travels out of the country – in reality, it goes to no issue.
Section 145(1) of the Constitution provides that when the President is 1) going on vacation or 2) is unable to perform the functions of his office, he shall transmit a written declaration to the National Assembly (NASS) to that effect, and until he transmits a written declaration to the contrary, the Vice President shall perform the functions of President as Acting President. This simply means that the President is bound to formally inform NASS when he is either going on vacation or unable to perform the functions of his office, whichever is applicable. See the case of Onochie & Ors v Odogwu & Ors (2006) LPELR-2689(SC) per Ikechi Francis Ogbuagu, JSC where the Supreme Court held inter alia that: “The word “Shall”….Its use in a statute or rules of court, makes it mandatory that the rule or provision must be observed”.
It appears that people have misinterpreted Section 145(1) of the Constitution, to mean that the written declaration is one in which the President must state that he is transferring power to the Vice President to perform his functions as Acting President, in his absence. No. The words of Section 145(1) of the Constitution, are precise and unambiguous, and do not result in absurdity or doubt. The literal interpretation of the provision, which suffices, is that the President informs NASS that he’s going on holiday or is incapacitated. The role of the Vice President as Acting President that arises therefrom is self-executory, upon the issuance of the written declaration. See the case of Awolowo v Shagari (1979) LPELR-653(SC) per Andrews Otutu Obaseki, JSC on statutory interpretation.
Section 145(2) thereof however, provides that if the President fails to write the written declaration within 21 days, by a resolution of a simple majority of votes of both Houses of NASS, the Vice President shall be mandated by the Legislature to act as President, until the President transmits a letter to NASS that he’s resuming. See Onochie & Ors v Odogwu & Ors (Supra).
Our Columnist, Stephen Kola-Balogun – ‘My Brief by SKB’ and my humble self, had a hot argument on Section 145(2). He submitted that, it is arguable that Section 145(2) of the Constitution implies that the President and Vice President not be absent from Nigeria simultaneously for more than 21 days; that in the event that NASS had to exercise its Section 145(2) function, the Vice President should be present in Nigeria. He argued that, both being away simultaneously, defeats the essence and purpose of that sub-section. I disagree. Since nothing in the Constitution provides that the Presidential functions can only be exercised when the President or Vice President is physically in Nigeria, and Section 145(1) only requires the President to write a written declaration when he’s proceeding on vacation or unable to perform his Presidential functions, and not when he’s travelling out on an official trip, why will the absence of a Vice President if on an official assignment outside the country, bar such a Vice President from assuming the functions of Acting President by virtue of Section 145, should the need arise?
The Presidency had announced that President Tinubu was going on a three week vacation, as part of his annual leave. In the same announcement, the trip was also referred to as a ‘working vacation’. Section 145 of the Constitution doesn’t recognise a working vacation; it recognises a vacation simpliciter, or a situation in which the President is unable to perform his official functions. In President Tinubu’s case, the duty to write the written declaration, arose when he proceeded on vacation. The 21 day window of Section 145(2) of the Constitution, arises only when there’s a failure to carry out the Section 145(1) duty within 21 days.
But, Section 145(2) is now interpreted to mean that the President need not write the written declaration, if the trip is for less than 21 days. If this were so, why didn’t Section 145(1) state that unequivocally? However, the decision in Suit No. FHC/L/CS/763/2019 Inibehe Effiong v President, Federal Republic of Nigeria & Anor delivered on January 31, 2020 per A. O. Faji, J, supports the position that the President does not violate the Constitution, by travelling out of the country for a short vacation or private visit of less than 21 days, without formally writing a written declaration to that effect to NASS.
Though the Constitution doesn’t provide that the President must be physically present in Nigeria at all times to exercise his office, and there has been ample evidence in the media to show Nigerians that President Tinubu isn’t incapacitated, but, to the extent that he went on vacation, for over 21 days too, and didn’t write the written declaration, by virtue of Section 145(2) of the Constitution, the burden then shifted to NASS to do the needful, which they failed to do, leaving a vacuum of over a week.
By virtue of Section 15(2) & (3) of the Interpretation Act 1964 (IA), President Tinubu who travelled on August 30th, should have transmitted the declaration immediately, but by September 21, 2026 this hadn’t been done – the count excludes the day he travelled and starts on Monday, August 31st (Section 15(2)(a) of the IA) and would have ended on a Sunday, September 20 which by virtue of Section 15(5) of the IA is a holiday and therefore, extended to the next day, Monday, September 21 (Section 15(3) of the IA), after which the buck appears to have left President Tinubu’s table (having failed or neglected to comply with Section 145(1) of the Constitution) to NASS’s table for compliance with Section 145(2) of the Constitution, to mandate Vice President Shettima to act as President. But, if the Presidency was acting based on the decision in Inibehe Effiong v President, Federal Republic of Nigeria & Anor (Supra), there would be no need to write the written declaration till Monday September 21st, 2026.
While President Buhari wrote letters of transmission, sometimes even when he was embarking on short trips, such as a five day vacation in February 2016 and the London ear infection trip in June 2016, he didn’t always do so for other short vacation trips. President Buhari embarked on two long trips in 2017, in January for 50 days and in May for a record 103 days. President Buhari’s May 2017 letter, stated that Vice President Osinbajo “would coordinate the activities of government”. That was adequate.
The present Section 145 is a 2010 alteration of the Constitution. The old Section 145 of the Constitution provided thus: “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”. In NBA v President Umaru Musa Yar’Adua Judgement delivered on 29/1/2010 per Dan Abutu. CJ of the Federal High Court, the court held that the old Section 145 created no mandatory duty to submit a written declaration to NASS, that the power to transmit was discretionary not mandatory, and so the court couldn’t order Vice President Jonathan to act. PresidentYar’Adua had travelled to Saudi Arabia on November 23, 2009, a trip that lasted for 78 days.
On February 9, 2010, NASS under David Mark and Dimeji Bankole as Senate President and Speaker, House of Representatives respectively, invoked the doctrine of necessity and recognised Vice President Jonathan as Acting President. They relied in part, on President Yar’Adua’s BBC short telephone interview of January 12, 2010, where he stated thus: “At the moment I am undergoing treatment, and I’m getting better from the treatment. I hope that very soon there will be tremendous progress, which will allow me to get back home… As soon as my doctors discharge me, I will return to Nigeria to resume my duties”. This statement clearly evinced the fact that, President Yar’Adua was off duty. President Yar’Adua returned to Nigeria on February 24, 2010 and subsequently, died on May 5, 2010, after which Jonathan became President under Section 146 of the Constitution.
It appears that unlike the proactiveness shown by the David Mark/Dimeji Bankole-led NASS, NASS under the present leadership decided to breach Section 145(2) of the Constitution, which has given the Legislature the power to check and correct the inaction of the President in this regard.
Section 145 does not invite a debate; Section 145(1) of the Constitution imposes a duty on the President, the moment he proceeds on vacation. While Inibehe Effiong v President, Federal Republic of Nigeria & Anor (Supra) which hasn’t been set aside, may have given the President a reason not write his written declaration of vacation until the 21st day, nothing excuses NASS for not taking action after 21 days. Section 145(2) imposes a duty on NASS, when the President leaves his duty undone for 21 days. Neither was performed. Late President Yar’Adua, GCFR, fell into a hole that the Constitution then had. The 2010 alteration gave NASS, the tool to fill it. This Assembly left the tool unused. A court may declare the breach. It will not do for members, what Section 145(2) of the Constitution requires them to do themselves. Debate is easy. Compliance is what the grundnorm requires.
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