Constitutional Implication Of President Buhari’s Travel Abroad Without Transferring Power To His Vice-President By Mike Ozekhome SAN

INTRODUCTION

It is no longer news that President Muhammadu Buhari (PMB) has embarked on a 10 day “private visit” to the United Kingdom (UK), without informing the National Assembly and delegating presidential powers to the Vice President, since leaving on Thursday, 25^th April, 2019. PMB is supposedly expected to be back on Sunday, 5^th May, 2019. This is not the first time the President has travelled out of the country both for official duties and for vacation since June 3, 2015. However, this is the first time PMB will be leaving the country not on an official duty, but for a ‘private visit’, as claimed by his handlers. Today, I shall be looking at the legal implication of his recent ‘private visit’ to UK, vis-à-vis the legal position of the 1999 Constitution (as amended).

The starting point here is that the position of the President is enshrined in our 1999 Constitution. And as such, the President is not expected to do or act contrary to the provisions of the 1999 Constitution. This is well encapsulated in section 1 (1) & (3) of the 1999 Constitution.

By virtue of Section 5 (1),

“Subject to the provisions of this Constitution, the executive powers of the Federation:

• shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and

• shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws”.

Barely few days into his ‘private trip’ to UK, PMB came under serious backlash, when it was discovered that there was no letter from him to the Senate President and the Speaker, House of Representatives transmitting power to his Vice- President, Yemi Osibanjo, for his inability to perform his official functions as the President for the duration of his absence. This is the position of Section 145 (1) of the 1999 Constitution.

Section 145 states:

• “Whenever the President is proceeding on vacation or 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”.

The presidency were swift to respond that PMB has not breached any section of the Nigerian Constitution for failing to transmit power to his deputy, Vice-President Yemi Osinbajo, before embarking on a 10-day private visit to London, United Kingdom (UK). Hellooooooo, Avid readers and history pupils, do not forget that the same PMB had earlier visited UK in one of his visits, in June 6, 2016, where PMB had handed over to Vice-President Yemi Osinbajo after notifying the Senate of his 10-day visit to UK, where PMB claimed he would be seeing an Ear, Nose and Throat specialist over a persistent ear infection. What has changed? Nothing! Fast forward.

The Senior Special Assistant on Media and Publicity, Mr Garba Shehu, while making reference to Section 145 (1) and (2) of the Constitution, stated that “the President’s action did not contravene the law”. Shehu also averred that “Buhari had the capacity to preside over the affairs of the country from ‘anywhere’”.

Shehu went further to say that “the President can exercise authority from wherever he is as he is currently doing. This is a relatively short absence. If you check Section 145 (1) and (2) of the Constitution, you will see that the law is only infringed upon when such absence extends to 21 days”. Furthermore, Shehu said: “The President can operate from wherever he is; if you are a Permanent Secretary and the President calls you from Abidjan and says you go and repair that road, are you going to tell him, ‘Mr. President, you are not in Nigeria, you are in Abidjan’ and because of that you are not going to do the work? Do you think you will have your job waiting for you? There is absolutely no stress surrounding this because in the last three days of Mr. President being in the UK, we are in touch with him. We are aware he met with the Foreign Minister, two days ago, and advised him on engagement with the West African coast.”

“PMB was also in touch, watching over incidents happening in Gombe State and other places in the country. The president is in charge.” Can someone wake me up please??? I beg to disagree with Garba’s opinion on the above provisions of Mallam Garba. It is not correct, legally, constitutionally or even morally, that the president of about 200 million populated country can simply disappear on a so called “private visit” without the citizens being apprised. It is also wrong to say the president can rule Nigeria from any part of the world. This argument does not seem to realise that the president loses his anonymity and utmost privacy the very day he took the oath of office as Nigerian president. His actions, both in and out of his official government quarters are subject to total public scrutiny. It becomes more serious when the visit is outside Nigeria, to another sovereign country like UK. It has implications concerning security, self-pride, national consciousness and responsibility of a government to its citizens.

Nigerians did not elect a president-at-large, in cognito and plenipotentiary. He can only rule us from Nigeria. When he is incapable of doing this, he must resort to section 145 by transferring power to his Vice. He did this in 2017 and I praised him to high heavens for avoiding the need for invocation of the doctrine of necessity, which had to be invoked in the Yar’Adua health saga.

I think at this point it is imperative to know the meaning of ‘private’ and ‘vacation’. According to Wikipedia, ‘private’ means, ‘something is inherently special or sensitive to them’. Again, Wikipedia defined ‘vacation’ to mean, ‘a leave of absence from a regular occupation, or a specific trip or journey, usually for the purpose of recreation or tourism’. Having regard to the facts and circumstances of the controversial ‘private visit’, PMB is deemed in the eyes of the law to be on vacation or leave of absence for 10 days. 10 days cannot be regarded as a “relatively short absence”, as argued by Shehu, but a vacation simpliciter!

NOW THIS

Shehu’s above view that Buhari has not breached the above provision of Section 145 (1) (2) above, particularly, PMB has not spent up to the required number of 21 days, without transmitting power is misleading and not the true intent and purport of the said provisions. The purport and intendment of the sub-section 2, is to cure the defect that occurred during Yar’Adua tenure, where Yar’Adua left the country without transmitting power to his then Vice-President, GEJ. It took the intervention of the National Assembly to restore the country back to her position. The sub-section 2 above is not a yardstick to act or behave anyhow.

AND THIS

Can someone please tell the presidency, especially Shehu, that there is a huge difference between embarking on an official assignment that lasts for days, or even weeks and merely leaving the country for reasons best known to him only, but termed “private”. The former cannot be treated as vacation and no letter is required to the National Assembly. But, in the latter, a letter must be written to the National Assembly and constitutes vacation.

THOUGHT FOR THE WEEK

“Let us never forget that government is ourselves and not alien power over us. The ultimate rulers of our democracy are not a President and Senators and Congressmen and government officials, but the voters of this country”. (Franklin D. Roosevelt).

LAST LINE

Hope Nigerians are reading, digesting and awaiting the next explosive discourse of Sunday Sermon on the Mount of the Nigerian Project by Chief Mike Ozekhome, SAN, OFR, FCIArb, LL.D.