LEGAL IDEAS FORUM

THE CONSTITUTIONAL RIGHT OF AN ACTING PRESIDENT: WHEN POWER DOES NOT TRANSLATE to AUTHORITY Submitted By Paul Onuya

The powers to function as Acting President were
transferred to the VP on January 19, 2017, by his
principal, President Muhammadu Buhari, who
proceeded on a 10-day vacation to London,
United Kingdom, the same day. But for the10
working days he acted, he guarded and guided
his own actions, creating an impression of a
man without authority. This is the second phase
of the series in the way Vice President Yemi
Osinbajo ran Nigeria as Acting President in the
absence of President Buhari.

Just like the first week, his second week was
also animated with meetings after meetings.
Such has come to define the character of his
office as no day passes by without one form of
meeting or another.
But for Vice President Yemi Osinbajo, there was
no basking in the euphoria of being an Acting
President. There was also nothing so exciting
about the new office especially when the powers
are ephemeral and un-absolute.
It was the same office, the same motorcade.
The same living house, the same personnel and
the same meetings with no real executive
powers.
If there was anything new at all, it would be the
meetings that sprawled and tripled in their
numbers and Osinbajo, the Professor, would
never be tired chairing.
When power does not translate to authority
Yet, in the estimation of many persons, he may
have failed in the real issues of governance
within the period he acted, well, may be
because he did not have authority.
In truth, few Nigerians expected some executive
promptings from the Acting President.
For instance, situated within Nigeria’s socio-
political and tribal context, especially in the
absence of President Buhari, not many would
have expected a categorical policy statement on
the dripping economy. The same was also
expected in the case of the Southern Kaduna
killings.
In the wake of the buzz trailing the health
status of President Muhammadu Buhari, many
Nigerians also expected the Acting President to
speak, even hold a national broadcast, at least,
to douse the tension arising from the
politicisation of the President’s present state of
health.
Whereas the story is seen as FAKE NEWS at its
worst, such an open pronouncement would
have laid the matter to rest when it was first
raised.
By that, Nigerians would have been introduced
to the true picture of events rather than allow
them feast and fester on a barrage of
speculations and lies, which were very
dangerous to the well-being of the president as
well as cast aspersion on the collective dignity of
Nigerians and the most exalted office in the
land.
Many had also expected the Acting President to
name persons for Board appointments, promote
someone or even sack someone as the case may
be. But that was far from happening. It should
be understandable.
One issue many Nigerians had also thought
Acting President Osinbajo, a Professor of Law,
former University lecturer and former Attorney-
General of Lagos State, would have given bite,
was the fate of the Acting Chief Justice of
Nigeria, CJN, Justice Walter Onegheon, as the
counting down to his exit begins, having been
appointed in November to just act.
By February 10, the Acting CJN would have
exhausted his days in that capacity and would
not, according to the constitution, be
represented.
A flurry of knocks have so far trailed the
presidency for its loud silence on the matter.
But then, Osinbajo still loves his job and, so,
absolutely, has stayed away from it.
VP Osinbajo
An Acting President made for meetings
But what did he do over the week? The Acting
President, like just a Chairman of a company’s
Board (without executive authority)
superintended over a plethora of meetings.
On Monday, January 30, he received the
Speaker of the House of Representatives,
Yakubo Dogara, who accompanied Rochas
Okorocho, the Imo State governor, to the
Presidential Villa to see him.
The Majority Leader of the Senate, Mr. Ahmed
Lawan, also visited and later at nightfall,
Governor Samuel Ortom of Benue State made
an entry into the Acting President’s office.
The governor was to later tell State House
correspondents that he was in the Villa to
declare his solidarity for Osinbajo – whatever
that meant.
Tuesday, January 31, was yet another day that
featured the Senate President, Bukola Saraki
visiting in the company of, again, the Speaker
Dogara.
The Minister of Finance, Kemi Adeosun and her
colleague in the Budget and National Planning,
Udo Udoma were also seen around.
Later, Saraki told Journalists that they were
briefed on the economy and the 2017 budget.
The new angle he added to his tacit response
was the planned road show by the economic
team which was disclosed to them.
He said: “We are meeting on the economy and
the budget, myself, the Vice President and the
Speaker, Minister of Budget and Minister of
Finance. We are aware that the economic team
will soon be going on a road show and just to
brief us and let us know the issues and just
carry us along.
“We have just started the defence.
“There is emphasis on ‘shall’ perform the
functions as President. I want to tell you that
there is precedence in Nigeria and it is not
necessary going to England or America for
learning. You will recall that when the late
President Umar Yar’adua died, though there
were some issues, eventually they were resolved
and the Vice President stepped in as President.
“This same process is applicable to the Office of
the Governor. So, the duties of the Acting
President are not limited. He can appoint and
fire officials whose duties are regulated by him.
There is no provision in whatever form limiting
his powers as Acting President”.
Prof. Itse Sagay, the Chairman, Presidential
Advisory Committee Against Corruption, shared
his perspective.””The Vice President can perform
any function of the President, once he is acting.
The word ‘acting’ is not important. The acting
just means there is short time. When the
President is not around, the Vice President
becomes the President. This gives the Vice
President all the powers of the President. So, in
the absence of the President, the Vice President
can perform all functions of the President”,
Sagay stated.
Prof. Tahir Mamman, SAN, a former Director
General of the Nigerian Law School, also spoke
on the issue.
“What functions the VP can perform when the
President is away depend on the law and
circumstances of the President’s absence. Taking
the second part first, the Constitution requires
the President to transmit to the National
Assembly the fact of his absence for a certain
period of time. This instrument confers on the
VP the status of Acting President. In this
capacity, the Acting President has no legal
restrictions on the authority exercisable. Much
of the restrictions on it will be political as the
Acting President will need to be restrained and
careful to avoid using his powers in such a way
that may give the impression that he is
harboring a different motive from his principal
on the issues he takes decisions on”, Mamman
said.
“He will also likely to avoid pushing decisions on
matters that will normally take considerable
period for completion. By and large, such
decisions therefore will be on on-going matters
which need not to be put on hold because the
President is away. Most importantly, the powers
will enable the Ag President to handle
emergency situations. Generally, unless the
President is under serious disability, it is
expected that there will be a quiet ongoing
routine consultations between the two of them
to ensure proper communication and
understanding”.
Another lawyer, Mr. Itse Onagara, said: “This
issue is not debatable. It is expressly stated in
our Constitution that the Vice President shall act
in the absence of the President. Why would his
duties be debatable? It is clear that he shall
perform all duties attached to the Office of the
President, except where it is expressly stated in
any statute book. And as it is, I have not seen
any law which contradicts the provisions of the
Constitution. Therefore, nobody can give any
mischief or golden rule interpretation to the
provisions of the Constitution.
“Considering the above , it is clear that there
were no specific functions laid down by the
Constitution and since the Constitution is silent
on this and the Vice President is acting and
performing the duties of Mr President, there
would be no exceptions to what he can do.”
Bamidele Olajire, a Lagos based lawyer, equally
spoke on the issue. His words: “There are
express provisions in the Constitution, especially
in Section 145 of the 1999 Constitution as
amended that the Vice President’…shall perform
the functions of the President as Acting
President. `Yes, the Constitution makes
provision for the VP to take charge of the affairs
of governance. “However, the same law is silent
on what he can do and what he cannot do. This
is a big lacuna.

Adulwahab Abdulah & Bartholomew Madukwe Speaking on the duties of the Vice President as Acting President, a Lagos State University Law lecturer, Dr Gbenga Ojo, said : “Under the doctrine of subrogation, for the Vice President to
step into the shoes of Mr. President, he should
assume all the President’s powers in acting
capacity.
“God forbid, assuming the President dies today,
the Vice President becomes the President
automatically, according to our Constitution. The
Constitution is clear about this in Sections 145
and 146, where it states thus: Section 145 :
‘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.’
Vice President Osinbajo
“There is emphasis on ‘shall’ perform the
functions as President. I want to tell you that
there is precedence in Nigeria and it is not
necessary going to England or America for
learning. You will recall that when the late
President Umar Yar’adua died, though there
were some issues, eventually they were resolved
and the Vice President stepped in as President.
“This same process is applicable to the Office of
the Governor. So, the duties of the Acting
President are not limited. He can appoint and
fire officials whose duties are regulated by him.
There is no provision in whatever form limiting
his powers as Acting President”.
Prof. Itse Sagay, the Chairman, Presidential
Advisory Committee Against Corruption, shared
his perspective.””The Vice President can perform
any function of the President, once he is acting.
The word ‘acting’ is not important. The acting
just means there is short time. When the
President is not around, the Vice President
becomes the President. This gives the Vice
President all the powers of the President. So, in
the absence of the President, the Vice President
can perform all functions of the President”,
Sagay stated.
Prof. Tahir Mamman, SAN, a former Director
General of the Nigerian Law School, also spoke
on the issue.
“What functions the VP can perform when the
President is away depend on the law and
circumstances of the President’s absence. Taking
the second part first, the Constitution requires
the President to transmit to the National
Assembly the fact of his absence for a certain
period of time. This instrument confers on the
VP the status of Acting President. In this
capacity, the Acting President has no legal
restrictions on the authority exercisable. Much
of the restrictions on it will be political as the
Acting President will need to be restrained and
careful to avoid using his powers in such a way
that may give the impression that he is
harboring a different motive from his principal
on the issues he takes decisions on”, Mamman
said.
“He will also likely to avoid pushing decisions on
matters that will normally take considerable
period for completion. By and large, such
decisions therefore will be on on-going matters
which need not to be put on hold because the
President is away. Most importantly, the powers
will enable the Ag President to handle
emergency situations. Generally, unless the
President is under serious disability, it is
expected that there will be a quiet ongoing
routine consultations between the two of them
to ensure proper communication and
understanding”.
Another lawyer, Mr. Itse Onagara, said: “This
issue is not debatable. It is expressly stated in
our Constitution that the Vice President shall act
in the absence of the President. Why would his
duties be debatable? It is clear that he shall
perform all duties attached to the Office of the
President, except where it is expressly stated in
any statute book. And as it is, I have not seen
any law which contradicts the provisions of the
Constitution. Therefore, nobody can give any
mischief or golden rule interpretation to the
provisions of the Constitution.
“Considering the above , it is clear that there
were no specific functions laid down by the
Constitution and since the Constitution is silent
on this and the Vice President is acting and
performing the duties of Mr President, there
would be no exceptions to what he can do.”
Bamidele Olajire, a Lagos based lawyer, equally
spoke on the issue. His words: “There are
express provisions in the Constitution, especially
in Section 145 of the 1999 Constitution as
amended that the Vice President’…shall perform
the functions of the President as Acting
President. `Yes, the Constitution makes
provision for the VP to take charge of the affairs
of governance. “However, the same law is silent
on what he can do and what he cannot do. This
is a big lacuna.

For knowledge and Justice

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