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Olanipekun, Agbakoba, Ali: Osinbajo’s acting presidency is automatic

Senior lawyers yesterday said Vice President YemiOsinbajo automatically became the Acting President once President Muhamadu Buhari transmitted a letter to the Senate in line with Section 145(1) of the 1999 Constitution.They said the President’s description of Osinbajo as the person to “coordinate activities of the government” does not vitiate the constitutional provision. 

President Buhari’s May 5 letter to the Senate reads in part: “In compliance with Section 145 {1) of the 1999 constitution as amended, I wish to inform the distinguished Senate that I will be away for a scheduled medical follow-up with my doctors in London. 

“While I am away, the Vice President will coordinate the activities of the government…”

To the lawyers, the wordings of the letter do not affect Osinbajo’s authority as Acting President with full executive powers. 

Those who spoke include former Nigerian Bar Association (NBA) presidents Chief Wole Olanipekun (SAN) and Dr Olisa Agbakoba (SAN); Mallam Yusuf Ali (SAN), Prof KoyinsolaAjayi (SAN), Abiodun Owonikoko (SAN), Chief Mike Ozekhome (SAN), activist-lawyer Ebun-Olu Adegboruwa and Lagos lawyer Clement Onwuenwunor. 

Section 145(1) provides: “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.”

 Olanipekun said there is no provision for the position of “Coordinating Officer/President/Vice-President of the Federal Republic of Nigeria” in the Constitution, adding that the letter was not properly drafted. 

“Prof Osinbajo is either addressed as Vice-President or Acting President; and in the present circumstance, and not minding the crafting and language of President Buhari’s letter to the National Assembly, Prof. Osinbajo automatically assumed office as Acting President by constitutional imperatives. 

“He cannot be addressed as Coordinating Officer but as Acting President. Those who drafted this letter for President Buhari have not been fair to him or the nation,” Olanipekun said.

To him, Osinbajo assumed the position of the Acting President based on what the constitution dictates, and based not on Buhari’s wishes. 

“No special favour is being done to the Vice-President by the transmission of a letter by the President to the National Assembly under and by virtue of section 145(1) of the Constitution, as that section is self-executory, meaning that on the transmission of a letter to the National Assembly, the Constitution employs the use of the word ‘shall’ to install the Vice-President as the Acting President. 

“It is a constitutional appointment which takes effect from the moment the President informed the National Assembly that he was proceeding on medical leave. 

“The words employed in President Buhari’s letter cannot derogate from or override the mandatory provision of section 145(1). 

“Apart from this, under and by virtue of section 142(1) of the Constitution, both the President and Vice-President contested on a joint and single ticket, which is inseparable. 

“Having said this, my reservation still lies in the fact that a good number of Nigerians still surprisingly hold on to the thinking that government and governance should be personalised, and that by alluding to ‘government of Nigeria’, they ignorantly zero in on individuals. 

“There cannot be any vacuum in government and governance anywhere in the world, and the Constitution also states this very clearly and unambiguously in Section 142(1).

 

“To me, this should be the end of the discussion and debate; as there is a world of difference between a Coordinator and a constitutionally appointed Acting President,” Olanipekun said.

Agbakoba said the “controversy” created by President Buhari’s choice of words was unnecessary. 

“I am concerned by the unnecessary controversy. I believe it is a distraction by politicians. The nomenclature used by the President to describe his Vice President does not matter. 

“What matters to the average long suffering Nigerian is good governance.  Will the Acting President create jobs; provide water, roads, electricity, food, etc. This is what is important,” Agbakoba said. 

For Ali, the letter’s content is not is not important. 

“Once the President transmits a letter that he will be away, the Vice President by operation of Section 145 of the Constitution transmutes as Acting President ipso facto (by that very fact or act)!” Ali said. 

Prof Ajayi said the President’s clear reference to Section 145 of the Constitution meant that authority had been transferred to Osinbajo to become the Acting President. 

“The Vice President is the Acting President,” he said. 

Owonikoko shared the same sentiment. The National Assembly, he added, was right to accept the letter. 

He said: “The National Assembly has accepted the letter. Since the President cited the relevant constitutional provision that he was invoking, the consequence is clear. 

“He doesn’t have to stipulate the consequence once he has expressly identified the section under which he was writing. 

“Even in law, once you make a legal opinion that is valid, that you cited the wrong law will not make it invalid. Besides, the President is not a lawyer, even though we expect that he would have consulted before that letter was sent.” 

Owonikoko also observed that President Buhari’s use of the word ‘coordinate’ in his letter to the National Assembly, showed inelegant draftsmanship, but that this did not stop the Vice President from assuming the office of Acting President. 

He said: “The only thing is that the inelegance of the letter is something to be avoided, because if not for the mature way that the National Assembly handled the matter, it could have led to more political unease in the country about whether the use of the word ‘coordinate’ is just like a caretaker that you can be giving directions. 

“So, I think it is a welcome development that the National Assembly took a very informed and mature view of even what appears to have been an inelegant way of drafting the letter. 

“But the right message is passed on and the Acting President is on ground to discharge his duties.” 

Ozekhome also praised the National Assembly for not over-flogging the issue. 

“There is nothing like ‘Coordinator of National Affairs’ in our Constitution. That is a strange

importation of an unknown term into our Constitution. Section 145 of the 1999 Constitution specifically refers to ‘Acting President’, who ‘shall perform the functions of the President as Acting President’ whenever “’he president is proceeding on vacation or is otherwise unable to discharge the functions of his office ‘. 

“President Buhari may have used the term jokingly, to represent one who is fully in charge in his absence. Certainly, it is not legally or constitutionally correct. 

“The National Assembly that has the sole prerogative to accept or reject the president’s letter under section 145 of the Constitution, can actually reject the letter from Mr president which referred to Osibanjo as ‘Coordinator of National Affairs’. 

“In that case, a needless constitutional crisis would have arisen, as a big vacuum in governance would have been created. 

“In my humble opinion, in these times that try our souls, task our patience and sap our energy, matters like this are better left to lie low,” he said. 

Onwuenwunor said the controversy could have been avoided if the President had paid attention to his choice of words. 

“The words used by the President in transferring power to the Vice President through the Senate are very wrong. The words of the Constitution should have been used properly to avoid any controversy. 

“But, the Senate did the right thing by focusing on the constitutional provision and recognisingOsinbajo as Acting President,” he said.

 But, Adegboruwa believes Buhari’s description of Osinbajo was an impeachable offence. 

He said: “A coordinator is a person of equal status with others. So the Vice President cannot make appointments or sack anybody while the President is away. He cannot discipline any erring minister. He is limited in policy decisions as a coordinator. 

“He has no power of control over the cabal to whom the president has handed over power, albeit illegally. In effect, Nigeria has no leader presently. The existing office of the Vice Presiden is no more. The constitutionally created office of Acting President has been circumscribed by the President. The President is away on an indefinite medical trip abroad.”

Adegboruwa said the letter should have been rejected.  

“The Senate lacks the power to pronounce Osinbajo as Acting President, without a written resolution of both chambers of the National Assembly, through a decision taken on the floor of both chambers. 

“The President cannot travel for medical checkup for an indefinite period of time. The National Assembly should reject the letter from the President. There is therefore a serious constitutional crisis. 

“Pro-government lawyers and activists who have goaded the Buhari administration into dubious and reckless interpretations of the Constitution in the past, should be held responsible for the current crisis and all acts of impunity from Aso Villa. 

“In all, the National Assembly should commence impeachment proceedings against the President for gross misconduct,” Adegboruwa said.

 

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