Constitutional
implications and interpretations have threatened the position of
Professor Yemi Osinbajo as the acting president of the country following
President Buhari's indefinite leave.
Professor Yemi Osinbajo
The inability of President Muhammadu Buhari to resume duties on
February 6 as contained in his earlier vacation letter to the Senate has
triggered a debate over the legitimacy of the Vice President, Yemi
Osinbajo to continue to act on his behalf according to the Guardian.
Also, the debate forecloses the effort to get the appointment of
the Acting Chief Justice of Nigeria (CJN), Walter Onnoghen confirmed by
the Senate, since there is no one, ‘legally’ speaking, that would
forward his name to the upper chamber.
Section 145 of the 1999 Constitution says: “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.”
Lagos lawyer and human rights activist, Ebun Olu-Adegboruwa, says
that since the president did not return on February 6 as he promised and
the letter he ‘purportedly’ transmitted to the National Assembly
informing of his extended vacation on ground of ill health has not been
read on the floor of the Senate to form its votes and proceedings, the
legal capacity of Osinbajo ended midnight February 6, 2017.
He said: “That ‘letter’ has not been seen by anyone, in order
to determine its authenticity and its real author. When travelling in
January, President Buhari personally transmitted a letter to the
National Assembly, notifying them of a specific 10-day vacation, which
ended on February 6, 2017. This letter was duly read and became part and
parcel of the votes and proceedings of the National Assembly.
“The new ‘letter’ has not been read on the floors of either
chambers of the National Assembly, to make it part of its votes and
proceedings. Somehow, as if acting out a clever script, the Senate had
hurriedly adjourned its sitting to February 24, ever before the ‘letter’
for an extended vacation arrived. So legally, the ‘letter’ is cooling
somewhere in the National Assembly, just another letter, without any
force of law. A letter transmitted to the National Assembly must be read
at the plenary session to become binding.”
According to the lawyer, the implication is that there is neither
president nor acting president at the moment, and since the acting
president did not forward the name of Justice Onnoghen to the Senate
before February 6, there is no one to do so anymore, even if the
National Judicial Council (NJC) re-nominates him for the office in
compliance with section 231(5) of the 1999 constitution.
“The tenure of the acting CJN will lapse on February 10, 2017.
As of this night, the NJC has not met to consider recommending Onnoghen
for renewal as acting CJN. The NJC cannot do this after February 6,
2017, as there will be no president or acting president, to receive such
recommendation,” Adegboruwa insisted.
If this remains the true state of affairs, it means until the
president resumes or the Senate breaks off from its vacation on February
24 to read the president’s second letter transmitting power to his
deputy, the country shall run without either acting or substantive head
of state. Also, at the expiration of the acting tenure of Justice
Onnoghen on February 10, the judiciary shall remain without a clear
leadership, leaving the legislature as the only legally functional of
the three arms of government.
But the former Attorney General and Commissioner for Justice in
Abia State, Awa Kalu (SAN) disagreed. According to him, there is no
vacuum because the tenure of the acting president still subsists.
Kalu said: “Only the Senate president or his spokesman duly
recognised by the Senate can comment that they don’t have an authentic
letter from the president. The Senate is an institution which has an
office and secretariat. It is not a house where you can lock and go
away. The information we have is that the president has extended his
vacation and has informed the Senate accordingly. So, I don’t have a
contrary opinion. Section 145 of the 1999 constitution does not say it
must be read on the floor of the house.”
Also, former president of the Nigeria Bar Association (NBA), Mr.
Austin Alegeh (SAN) agreed with Kalu. He said the president had extended
the time he would be out of the country and by implication had extended
the time his vice would act.
“What the law requires is a notification that he is not going
to be around and that somebody would be acting on his behalf. And once
that letter has been transmitted, he has complied with the law,” he stated.
Lagos lawyer, Festus Keyamo, in the same vein maintained that the
letter doesn’t have to be read to take effect. “It doesn’t need the
approval of the Senate. All the law requires is that he transmits a
letter to the Senate and once he does that, it is alright,” Keyamo
declared.
Meanwhile, the Senate has confirmed that the letter through which
Buhari extended his leave is in the custody of the Senate President
Bukola Saraki.
At a press conference in Abuja yesterday, the spokesman of the
upper chamber, Aliu Saabi Abdullahi said the letter was in compliance
with the dictates of the law and the constitution of Nigeria.
But a question on who signed the letter threw Abdullahi into a fit
of anger as he condemned what he called an insinuation that the Senate
was not truthful about its declaration that the letter was in its
custody.
He said: “With due respect, I found the last comment very
uncomplimentary to the president. I have no apology for that. If he’s
there, can’t he write a letter and forward it to the Senate by DHL?
“If at this level we cannot trust ourselves to do certain basic
things, then why should I trust you? I think it’s important we give
ourselves some level of respect and trust. We are telling you a letter
has been signed and sent to us. Are you saying that the Senate is not an
institution of the Federal Republic of Nigeria? I am speaking to you
here on behalf of the Senate of the Federal Republic of Nigeria.
“This is not the first letter Mr. President will be
communicating to us. Are you saying that if we received a letter from
Mr. President and we say we received a letter from him we don’t know
what we are saying?”
When asked about the return date of the president, Abdullahi said: “The
letter didn’t say that the leave is indefinite because the word
‘indefinite’ is taking the matter out of context, but then the president
said he’s extending the leave beyond the 10 days he had asked for.”
The Senate spokesman said the decision on when President Buhari would return to Nigeria “is not in my hands but in the hands of the doctors. That is why the president is not giving us a date.”
On when the letter was received, Abdullahi said: “The letter was received by Saraki and I was briefed today (Tuesday). It was either yesterday or today they received it.”
Also yesterday, Minister of Information and Culture, Lai Mohammed,
said there was no basis for comparison between the on-going situation
over Buhari’s leave and what took place when the late President Umaru
Musa Yar’Adua was ill and flown abroad for treatment. He insisted that
Buhari was well.
Mohammed was reacting to a trending report on social media where a
comment he made in December 2009 has become the butt of comments and
jokes.
“Yes, I issued a statement on the 22nd of December (2009), but
the circumstances are vastly different. Mr. President is not ill; Mr.
President did not go for treatment; Mr. President went on leave and did
the proper thing according to the constitution.”
In a statement issued as National Publicity Secretary of the Action
Congress (AC), Alhaji Lai Mohammed had said the situation then where
ministers and aides of the president gave out uncoordinated information
on his health, was doing more harm than good. He urged that the citizens
should be given a daily update on the health of Yar’Adua.
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