Senior legal practitioners have continued to vent their spleen on President Muhammadu Buhari for breaching the Constitution over his recent signing of the Amended Deep Offshore Act at the Abuja House, London, where he is vacationing.
While some view Buhari’s failure to handover to his vice as indecorous and contemptuous, a Professor of Law, Akin Oyebode, wonders why the President seems mortally afraid that Prof. Yemi Osinbajo will always outshine him whenever the opportunity presents itself.
Apart from the unfolding scenario presenting the Presidency in a mediocre light, it also smacks of distrust, and announces to the world that the level of internal wrangling going on within it was unbecoming of a united presidency.
Oyebode said apart from the unsavoury image created, the President’s action indicated that he wants to cling on to power for as long as possible.
“It is quite obvious that President Buhari would cling on to power for as long as possible, and he is mortally scared of transferring power to Yemi Osinbajo, who would always outshine him in all fronts. I am afraid Nigerians would have to continue to live with megalomania compounded by mediocrity at the highest level,” he said.
On the need to amend the Constitution to enable a vice president to automatically assume power in the absence of the President, Prof. Oyebode said the country rather needed a new home-made Constitution.
Said he: “Decree 24 of 1999 masquerading as the Nigerian Constitution is worse than useless and warrants immediate jettisoning into the abyss of ill-thought-out contrivances. Nigerians deserve to be governed by a fundamental law that is not only autochthonous but also well-suited to their needs and interests.”
For Abuja-based Senior Advocate of Nigeria (SAN), Chief Ferdinand Orbih, Buhari performing his official roles when abroad on a private visit clearly shows that there is internal wrangling within the Presidency.
He said: “Apart from the legal implications of non-compliance with Section 145 (1) of the Constitution, there is the undesirable political consequence of giving an appearance of a divided Presidency to the Nigerian people. If there were no trust issues between the President and the Vice President, why would they expect the Nigerian people to trust them? You cannot radiate what you do not possess. Trust begets trust.
“From whatever perspective the issue is viewed, if the President is reluctant or fails to transfer power to the Vice President (VP), the implication is either that he does not trust the VP, or he has no confidence in his ability to discharge the functions of the Office of the President. The Nigerian Constitution is not written in Swahili but in our lingua franca- English language. Understanding and upholding its provisions should not be so difficult for our political actors.”
Citing Section 145 (1) of the 1999 Constitution, which says: “Whenever the President is proceeding on vacation or is otherwise unable to perform 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,” Orbih stressed that it is the operators of a Constitution that determine its beneficial effect on the citizenry.
According to him, no matter how elegantly or comprehensively worded the provisions of a Constitution are, if there is no good faith on the part of the leaders and its operators to adhere to both its letter and spirit, the problem it was designed to address would continue to plague the society.
“One would have thought that after the constitutional crisis that arose from the ailment of the late President Umaru Yar’Adua and his failure to transmit a written declaration to the Senate President and the Speaker of the House of Representatives that he was unable to perform the functions of his office, that no Nigerian president would again proceed on vacation, medical tourism or “private visit” without complying with the provisions of Section 145 (1).
“It is funny to hear the President’s men defend the indefensible act of non-compliance with the provisions of Section 145 (1) of the Constitution by telling us that the “president can work from anywhere.” My short answer to them is that the framers of our Constitution were not unaware of the fact that the president can work from anywhere when Section 145 (1) was made a part and parcel of our Constitution,” he declared.
The lawyer argued that Section 145 (2), which gives power to the National Assembly to confer acting presidential status on the VP in the event of failure of the President to transmit a written declaration to the National Assembly anytime he proceeds on vacation, cannot be a defence for failure to comply with Section 145 (1).
The former deputy director-general of the Nigerian Law School, Prof Ernest Ojukwu (SAN) on his part said there is something fundamentally wrong for Nigerian presidents’ unwillingness to handover power to their VPs each time they proceed on leave.
This, he recalled started from the tenure of President Olusegun Obasanjo, adding that it is either they ignore the constitutional requirement to do so, or they technically comply with it by taking leave a day or two shorter so that they are not under the obligation to hand over to an acting President.
He said: “Our focus I think should be on why this attitude? Why are our presidents afraid of their VPs?” He argued that inserting a clause in the Constitution to make for automatic acting president whenever a president proceeds on private visits would not make a difference.
While maintaining that the attitude and intentions of politicians are the key factors in such situations, he argued that providing for such without the President deciding to handover formally to his VP, while on vacation may likely introduce chaos and anarchy when there is an ambitious VP in the saddle.
But the National Publicity Secretary of the Nigerian Bar Association (NBA), Mr. Kunle Edu said the president working from abroad should not be an issue since visitations to world leaders and attending international conferences were all working visits.
Edu, however, frowned at the sad norm where Buhari seems to prefer working more from his overseas base, than being in Nigeria. “This unfortunate trend has now only recently extended to him assenting to a legislative bill at the Nigerian House in London. Some may argue that the Nigerian Embassy is part of the territory of Nigeria, but the gaffe in such an argument would be seen when the Supreme Court of Nigeria or the Senate Chamber of the National Assembly starts conducting their official businesses in the Nigerian House in London.
“Taking into consideration the landmark pronouncement of the Supreme Court of Nigeria in the case of Inakoju Vs Adeleke, I don’t think the draftsmen of the Nigerian Constitution intended that important businesses of state, like assenting to bills should be performed outside the shores of Nigeria. It is a special ceremony that should be performed in the State House in Abuja, not in a foreign country.
“Moreso, the President’s media handlers told Nigerians that the President is in London for a “private visit.” I don’t know what can be private about a Nigerian president or top public official traveling outside Nigeria with his full complement of official aides and paraphernalia of offices, all at the expense of Nigerian tax-payers, and you call it a private visit,” he wondered.
Edu argued that if it is a private visit as declared by the Presidency, it means that for the duration that Buhari is in London, he would not be able to discharge his official functions.
Should that be the case, he said, the President is therefore, technically on vacation and on the basis of the provisions of section 245(1) & (2) of the 1999 Constitution as amended, the President ought to have transmitted the mandatory letter to the National Assembly to enable the VP act in his stead, and perform the presidential duties while he is on his private visit.
“The argument that it is only when he is out of the country on vacation for 21 days before he must transmit the said letter is a reflection of the ignorance of the clear provisions of section 145(1) of the Constitution. That section is very clear that if the president is on vacation, as in this case, for even two or three days he must transmit the letter to the National Assembly.
“He has no option, choice or discretion in this. We are talking about the life of a nation of more than 200 million people. There are reasons why the Constitution created the office of the VP and they are not for fun. Nigeria practices constitutional democracy, not authoritarianism,” he declared, adding that public officials swore to an oath of allegiance to be faithful to and abide by the Constitution.
A Benin, Edo State-based professor of law, who does not want to be named, said the issue of the constitutional propriety of the president’s strange action of assenting to domestic legislation outside the shores of Nigeria may even raise questions of conflict of law when the signed Act is being applied.
If a dispute arises in the Act involving an international oil company operating in Nigeria, which is to be bound by the Act, there could be a real problem. This is because, according to him, the act of assenting to a bill is the conclusion of the legislative process for enacting a law.
“Since the National Assembly cannot conduct legislative business outside Nigeria, can the President carry out the solemn domestic duty to assent a bill into an Act outside Nigeria? I think he cannot. The United Kingdom is not an extension of the territory of Nigeria. Therefore, a domestic constitutional duty required of the President in the legislative process cannot legally be performed outside Nigeria.
“I think the constitutional provisions are clear. The President ought to have formally transferred power to the VP. But, you and I know that we are in an abnormal, political situation,” he pointed out.
However, a Lagos-based SAN, Dr. Abiodun Layonu thinks differently. He does not see anything wrong in the conduct of the President.
According to him, there is no need for the transmission as the president is only away for 17 days, which is less than the 21 days constitutionally stipulated for the transmission of power to occur.
Dr. Layonu told The Guardian that the Saudi trip was an official trip, while the visit to London is private, adding that it would amount to mischief to begin to read meanings by trying to join the two trips.
“There is no abuse. So, what is wrong with the President working from abroad? Are we not happy that our President is working even when he is on vacation? Let us be fair,” he concluded.