The written declaration or letter transmitted to the President of the Senate and the Speaker of the House of Representatives by President Muhammadu Buhari conveying his decision to proceed on medical vacation has ignited an avoidable controversy regarding the status and role of Prof. Yemi Osinbajo, SAN for the period that Mr. Buhari’s medical vacation will subsist.
On Tuesday 9th May, 2017, the Senate President, Bukola Saraki and the Speaker of the House of Representatives, Yakubu Dogara read the separate but identically worded letters they received from Mr. Buhari during the plenary of both houses of the National Assembly. The content of the controversial letter (the Senate President’s copy) is reproduced infra (below) as reported in several mainstream and online media:
It reads: “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.
“The length of my stay will be determined by the doctor’s advice.
“While I am away, the Vice President will coordinate the activities of the government. Please accept, the Distinguished Senate President, the assurances of my highest consideration.’’
The part of the letter that has elicited public debate is where Mr. Buhari offered his view on the role his Vice; Mr. Osinbajo will play in his absence. He stated thus: “While I am away, the Vice President will coordinate the activities of the government.”
Many commentators have interpreted this statement to mean that Osinbajo will not assume or exercise the functions of office of the President as an Acting President, but will merely ‘’coordinate the activities of the government” only as the Vice President of Nigeria.
The above interpretation, I submit with respect, is constitutionally untenable, baseless, wrong, faulty and legally indefensible.
The reasons are summarised as follows:
It is not open to Buhari, Osinbajo, the National Assembly or any other authority or person to go outside the express and unambiguous provisions of Section 145 (1) of Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as the Constitution) to determine the status and functions of the Vice President when the President is proceeding on vacation and transmits a letter to the President of the Senate and Speaker of the House of Representatives.
The only legally cognizable and acceptable reference on this matter is Section 145 (1) of the Constitution.
What does Section 145 (1) of the Constitution provide for? It states as follows:
“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.”
There is nothing in the quoted provisions of Section 145 (1) of the Constitution that justifies controversy on what should happen whenever the President is proceeding on vacation or leave. President Buhari has acted in line with this constitutional process in the past without argument.
In the present case, the President transmitted a written declaration to both the President of the Senate and Speaker of the House of Representatives that he is proceeding on medical vacation to London. That is ALL that was/is required of Mr. Buhari by the Constitution. Any other statement in his written declaration or letter to the presiding officers of the National Assembly is constitutionally irrelevant. Buhari’s assertion that Mr. Osinbajo will “coordinate the activities of the government” in his absence is a surplusage in the eyes of the law.
There are two elementary canons or principles of statutory or constitutional interpretation which have received unchallenged judicial blessings from every superior court of record in Nigeria, including the Supreme Court, as decided in a plethora of cases which are relevant to the current discourse and they bear repeating.
First, it is a settled rule of interpretation that when the words of a statute, including the Constitution, are plain and unambiguous, they should be given their ordinary meaning unless it would lead to absurdity or be in conflict with the Constitution. In the case of Okotie-Eboh v. Manager & Ors. (2004) 18 NWLR (Pt. 905) Page 242; (2014) LPELR-2502(SC) (pp. 30, paras. E), the Supreme Court, Per Edozie, J.S.C. correctly stated the principle thus:
“According to the canons of interpretation of statutes, it is a cardinal principle that where the ordinary plain meaning of the words used in a statute are very clear and unambiguous, effect must be given to those words without resort to any intrinsic or external aid.”
The position taken by the Supreme Court in the Okotie-Eboh’s case quoted supra is very instructive. Applying same to the present case, it will be unconstitutional to resort to any external aid in giving effect to the clear and unambiguous provisions of Section 145 (1) of the Constitution. Since the Constitution has clearly stated what should happen whenever the President transmits a written declaration to the President of the Senate and Speaker of the House of Representatives that he is proceeding on vacation, Buhari lacks the vires (power) to go further to define the role of Prof. Osinbajo.
Buhari can neither add to nor subtract from the provisions of Section 145 (1) of the Constitution.
See also the pronouncements of the Supreme Court in the following reported case: Nyame v FRN (2010) 7 NWLR (Pt. 1193) Page 344 at Page 399, Paras. B-H; Action Congress v. INEC (2007) 12 NWLR (Pt. 1048) Page 220 at Page 318, Paras E-H and Utih v. Onoyivwe (1991) 1 NWLR (Pt. 160) Page 166 at 238, Paras. D-E. These authorities are to the effect that when the words of the statute or the Constitution are plain and unambiguous, effect must be given to their ordinary grammatical and literary meaning.
The second canon of interpretation which is relevant to this discussion is on the import of the use of the word “Shall’’ in an enactment”. The Supreme Court, Per Adekeye, J.S.C. in Dr. Arthur Agwuncha Nwankwo & Ors. v. Alhaji Umaru Yar’Adua & Ors. (2010) LPELR-2109(SC) at Pages 78, Paras. D-E had this to say:
“The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.”
It should be noted that the word “Shall” is mentioned only once in Section 145 (1) of the Constitution. The mandatory word (shall) is not mentioned in the provision with regards to whether the President should transmit a written declaration to the President of the Senate and Speaker of the House of Representatives or not when he is proceeding on vacation. It is only mentioned at the later part of the provision embodying the consequence of transmitting a written declaration, whenever he chooses to do so.
What this implies is that it is not compulsory for the President to do so.
However, WHENEVER he acts in line with Section 145 (1) of the Constitution, that is, anytime the President deems it expedient to transmit a written declaration or letter to the President of the Senate and Speaker of the House of Representatives, the Vice President automatically assumes the position of an Acting President and perform the functions of the President.
The moment the written declaration or letter transmitted by President Buhari conveying his decision to proceed on medical vacation was received and acknowledged by the President of the Senate and Speaker of the House of Representatives, Prof. Osinbajo had, by operation of law, assumed the position of Acting President of the Federal Republic of Nigeria. Not even the National Assembly could stop him from assuming that position. It is automatic and there is nothing that can be done to the contrary by any authority or person without offending the spirit and letters of the Constitution.
Had the President proceeded on vacation to London without notifying the President of the Senate and Speaker of the House of Representatives, Prof. Osinbajo would have continued to “coordinate the activities of the government” as Vice President for the next 21 days, after which the National Assembly shall pass a resolution empowering him to perform the functions of the office of President in line with Section 145 (2) of the Constitution.
Interestingly, Mr. Buhari had expressly indicated in his written declaration that he was writing pursuant to Section 145 (1) of the Constitution. This forecloses any contrary inference on his intentions other than for Osinbajo to become the Acting President.
It should however be noted that it was not necessary for the President to expressly indicate that his written declaration was made pursuant to Section 145 (1) of the Constitution. It was equally superfluous for him to state the nomenclature, status or functions of his Vice while he is on vacation. The Constitution has already catered for this.
I will like to assume that the language used by Mr. President in his letter was innocuous and not intended to subvert the Constitution. It will amount to a rape on the Constitution and democracy if Mr. Osinbajo is prevented or inhibited, in any manner, from assuming the position of Acting President and excising full presidential powers and functions.
There is no office with the appellation ‘’Coordinator of Nation’s Affairs’’ under our Constitution. Buhari cannot amend the Supreme Law of the Land by implication. If Osinbajo is to coordinate the activities of the government while Buhari is away, he can only do so as the Acting President of Nigeria. Anything contrary is ultra vires, illegal, unconstitutional, null and void and of no effect whatsoever.
Mr. Osinbajo cannot refuse or reject the position of an Acting President. It is not in his mouth to say whether he will temporarily lead the country as the Vice President or as an Acting President. He has no choice in this matter other than to perform the functions of the office of President as Acting President. It is the law that parties cannot by conduct or consent alter the Constitution. See the case of Nigerian National Petroleum Corporation (NNPC) v. Famfa Oil Limited (2012) 17 NWLR (Pt. 1328) 148.
Pending when Buhari transmits a written declaration to the President of the Senate and Speaker of the House of Representatives indicating his return to Nigeria and readiness to resume his functions, Prof. Yemi Osinbajo, SAN is and will remain the Acting President of Nigeria.
Inibehe Effiong, a Legal Practitioner can be reached via: [email protected]