Buhari’s failure to transmit power to Osinbajo is unconstitutional

BY FESTUS OGUN

On Tuesday, President Muhammadu Buhari travelled to the United Kingdom for a “routine medical check-up”.  Expectedly, the news generated controversies and outrages amongst Nigerians who believe the president acted immorally and illegally by embarking on a foreign medical trip at a time the medical sector of the country is in a shameful mess. While a good number of Nigerians defended the strict constitutional position in respect of medical trips, holidays and vacations, the presidency took turns to state that no law was breached as the president, who they said can rule from anywhere in the world, acted within the bounds of the law. In this intervention, therefore, a dissection in respect of the legality of the routine medical tours and the answer to the question: whether the president can rule from anywhere would be attempted.

First, the failure of the president to transmit power to the vice-president when embarking on medical vacation is unconstitutional, arbitrary, discriminatory and unconscionable. By virtue of Section 145(1)(2) of the 1999 Constitution of the Federal Republic of Nigeria, 2011 as amended, the president is under a constitutional duty to always transmit power WHENEVER he embarks on medical vacation or any form of vacation whatsoever. Put simply, the constitution has made the transmission of power to the vice-president a condition precedent to embarking on medical vacations.

Section 145(1)(2) of the 1999 Constitution unambiguously provides that:

“(1) 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.

“(2) 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.” (Emphasis mine)

Instructively, the provisions of this section are very clear, straightforward and have raised no ambiguity of any sort. Our courts have consistently maintained that where the wordings of the constitution are lucid, direct and unambiguous, the literal canon of constitutional interpretation should be adopted. The purport of the literal rule is that words used in a statute should be accorded their grammatical, plain, ordinary and natural meaning. The judiciary, in fact, cannot discretionally expand the meaning accorded to words of a statute where the meaning is plain and the strict adherence to the literal meaning would not lead to miscarriage of justice. A judge has no business (re)making law, let alone the executive.

In SKYE BANK v. IWU (2017) LPELR-42595(SC), the supreme court, per Kekere-Ekun JSC, held that “the general rule of interpretation of constitutional provisions is that where the words used are clear and unambiguous, they must be given a literal interpretation i.e. they must be given their ordinary and grammatical meaning”. This, simply, is the infallible interpretation of the law as handed down to us by the law lords of the supreme court which must be reflected and abided by in the actions and activities of those in control of governmental machinery.

From the foregoing, it is clear that the president is under a legal compulsion to always transmit a written declaration to the national assembly – transmitting power to the vice-president – whenever he embarks on vacation. The Longman Dictionary of Contemporary English (7^th Edition) defines “whenever” as “every time that a particular thing happens”. That is to mean that every time or any time the president is embarking on vacation, he is compelled to transmit power to the vice-president by formally informing the national assembly. Interestingly, the Constitution makes use of the word “shall” in the Section. As held by the supreme court in the popular case of ENGR. CHARLES UGWU & ANOR. V. SENATOR IFEANYI ARARUME & ANOR. (2007) LPELR-3329(SC), the word “shall” when used in statutory provision imports that a thing must be done and that when the negative phrase “shall not” is used, it implies that something must not be done. In other words, the word “shall” as used in that provision implies compulsion.

This legal duty cannot be exercised discretionally as the president is duty-bound to respect, abide and obey it. The president is subject to the law and cannot continue to recklessly act as though it is above it. Any form of disrespect to the provisions of the constitution, as done by President Buhari, amounts to an assault on the rule of law and executive lawlessness. The provisions of the constitution are too sacred to be violated arbitrarily by those in charge of power. In MILITARY GOVERNOR OF LAGOS STATE & ORS. V. OJUKWU & ANOR. (1986) LPELR-3186(SC), the Supreme Court emphasized the need for the government to conduct itself within the precinct of the law and the Constitution; and that is the only way constitutional democracy can work smoothly and effectively.

Saddened by the obsession of this administration with lawlessness and impunity, I am compelled to reiterate the provision of Section 1(1) of the 1999 Constitution that provides that the constitution is “supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria”. For a country governed by law, the disrespect to the laid down laws and rules will spell nothing other than doom and disaster as the rule of law is the pillar upon which democracy stands.

The argument by the president’s media aide, Mallam Garba Shehu that the president need not hand over power to the vice-president when his vacation is less than 21 days is, with profound respect, lame, misleading, fictitious and cannot be substantiated in law. What the law simply implies is that the failure to transmit power within 21 days would clothe the national assembly with the jurisdiction to declare the vice-president as acting president. That is not to mean that the president is not under a legal duty to transmit power whenever he is embarking on vacation. Remember, the operative word here is “whenever” and not “when he spends over 21 days”.  The presidency must immediately desist from turning the law upside down in satisfaction with their selfish political interests. A president that took an oath under the 7th schedule of the constitution to defend and respect the constitution should not be caught making exculpatory rhetorics in defence of shameful constitutional abuses and executive lawlessness.

The question crying for an answer is: If the president can transmit power to the vice-president when he embarked on a 10-day vacation in 2017, what stops him from doing the same at a time his vacation lasts for a fortnight? If the president can do what is right then, what prevents him from doing the same in 2021? What changed?

On the second issue: Whether the president can rule from anywhere. To be clear, the President of Nigeria has no such power in law to rule from anywhere especially during the time he embarks on vacation, non-official foreign trips or “private visit”. Since Section 145(1) of the Constitution makes it compulsory for the President to delegate and temporarily hand over power to the vice-president anytime and every time he embarks on a vacation, it follows that the president is precluded from acting as the President of Nigeria on vacation. A president that ought to transmit power while embarking on vacation cannot validly exercise presidential powers from abroad where he fails to do so.

The intention of the framers of the constitution is glaring in this respect; if they had intended that the president should rule from wherever the constitutional provision in respect of transmitting power would have been omitted. In short, the overall essence of transmitting power is to prevent the exercise of presidential powers during vacations. As the constitution stipulates the transmission of power at the point of embarking on vacation, a president that goes on vacation without abiding by the letters of the law is on a frolic of his own because all acts done during the period as a president is unconstitutional, null and void and of no effect whatsoever. All acts done by the president at the time he unlawfully exercises power as President while on vacation amount to a nullity, sheer waste of time and zero at the centre of nothing. Indeed, you cannot put something on nothing and expect that it stands.

Beyond the legalese, however, I think Nigerians really deserve to be worried at the audacity the current administration has to roguishly violate the electoral promises with which it rode to power. Recall that President Muhammadu Buhari promised to put an end to foreign medical trips for public officials by improving the medical sector when he gets to power. On getting to power, it took Nigerians no time to see through the deceit in his promises. The medical sector’s messy state has deteriorated to the point that while the president enjoys the comfort of a foreign medical trip, resident doctors in the country are on strike due to poor welfare packages, unpaid salaries and ineptitude of the government. In fact, the high number of foreign medical trips embarked on by the president would tempt one to conclude that the president is very desperate in outshining any past leader known for medical tourism. I make bold to say that a government that has failed in its duty to provide adequate medical care for its people lacks the moral right to embark on foreign medical tours with the peoples’ resources. Sadly, public morality has become a thing of the past in our polity.

Finally, I urge President Buhari to make respect for the rule of law its foremost priority as a democracy without constitutional governance hinders peace, progress and unity. With our enormous challenges in 2021 Nigeria, an issue like disrespect to constitutional tenets should not even be propping up from our public conversation. Worryingly, we have a government that has grown lust for unconstitutionality and arbitrariness. At this point, in order to avert further constitutional crisis in the country, the government must listen attentively to the voice of reason. We can do better and we must!

Ogun is a lawyer-in-equity and human rights activist. [email protected]