A former Chairman of the National Human Rights Commission, Professor Chidi Odinkalu, has said that the National Assembly is unwilling and unable to discharge the duty placed on it by section 145 of the 1999 Constitution, as the absence of President Bola Ahmed Tinubu from the country reached 24 days with the Vice President, Senator Kashim Shettima, also abroad.
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He spoke on Channels Television’s Politics Today, in a discussion on who is constitutionally exercising presidential authority in Nigeria.
Before turning to the constitutional question, Professor Odinkalu asked leave to address the proceedings at the United Nations General Assembly in New York, where Nigeria was co-hosting an event on education financing.
He said his interest was personal as well as professional. “At least I know the secondary school I went to, I know the schools I went to, and both of my parents are teachers, and I’m a teacher, and education means a lot to me.”
He said the country was discussing education abroad while an unresolved dispute was under way at home.
“As you probably know, there is a crisis with the unity schools in Nigeria over the concessioning of King’s College. There is no policy on concessioning of publicly owned schools, by the way. So this is just drawn out of the heart.”
He went further, saying the administration has no education policy at all.
“The current administration does not have an education policy. The last policy on education was done by Adamu Adamu as Minister of Education in 2017, and I don’t even think this administration has read it. They’ve not bothered to update it.”
“The numbers of out-of-school children are skyrocketing in the country. And we can’t even go to the United Nations and say, oh, this is our education policy. That’s how bad it is.”
He added a pointed observation about the President: “Sadly, the President does not have a calling card on this, because he cannot name any teacher who taught him and he cannot name the schools he went to. Do you see the credibility crisis we are running, attending an education summit at the United Nations General Assembly?”
Turning to the question put to him, namely the background to section 145 of the Constitution and the intention of its framers, Professor Odinkalu entered a caveat about the basis on which he spoke.
“Let me be quite clear, just as a citizen, not with any legal qualifications, because I lack any on this particular issue,” he said.
He traced the provision to the events of 2010 and the illness of the late President Umaru Musa Yar’Adua.
“Of course, the context is the events that took place in 2010, and preceding that, over the health of President Umaru Musa Yar’Adua, and the need to ensure that there is no vacancy unexplained in the running of the country in such a way as to make it impossible for the country to run.”
He recalled the position of the then Vice President, Dr. Goodluck Jonathan, in the opening months of that year.
“As you may remember, at the point when President Yar’Adua was tragically in the final days of his life, he was outside the country. Vice President Jonathan, this was in the first two months of 2010, Vice President Jonathan was quite literally made to sit in Abuja twiddling his thumbs, unable to do anything.”
“And in the end, the Senate had to manufacture the doctrine of necessity, if you recall, by which power was eventually transitioned to him in an acting capacity.”
He said the provision was drafted directly on the lessons of that episode.
“On the back of the lessons from that, section 145 was then produced in a way as to make it impossible for that kind of crippling vacancy to either exist or to subsist.”
But he said the remedy the provision creates is not self-executing.
“That requires a contingency in section 145(2) to be fulfilled, and the Senate, the National Assembly, this National Assembly as it is, is unwilling and unable to fulfil that contingency.”
The President left Nigeria on 30 August on what the presidency described as a working vacation, travelling to London and later to Paris, and on 21 September the presidency announced that he had extended the trip by a few days and would return at the weekend. By the programme’s calculation, that made 24 days.
The Vice President left Abuja on 20 September for New York to represent Nigeria at the United Nations General Assembly.
Section 145 of the Constitution provides that where the President proceeds on vacation or is otherwise unable to discharge the functions of the office, he shall transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives, enabling the Vice President to act as President. Where no such declaration is transmitted within 21 days, the National Assembly is empowered, by a simple majority of each chamber, to mandate the Vice President to perform the functions of the office.
The presidency has maintained that there is no leadership vacuum, that the President remains in touch with developments at home and continues to direct government affairs from abroad. The President of the Senate, Senator Godswill Akpabio, has said the President remains fully in power and that he himself is not Acting President.
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