The Nigerian 1999 Constitution, as amended, in Section 146, provides that the Vice President shall act in the capacity of the President on the occasion that the President is not on seat.
This section of the constitution further emphasises that the acting president is empowered to act fully in the capacity of the president at all times. Section 145 of the constitution also mandates the President to transmit power to his vice to act in his stead whenever he, for whatever reason, is unable to exercise his powers as the President.
These two sections of the constitution empowered the acting President Yemi Osinbajo to function in the place of his principal, President Muhammadu Buhari, who has since January 19, been on medical vacation in the United Kingdom.
One of such functions, as enshrined in the constitution, is the signing into law, or rejection of same, of any bill passed by the National Assembly. It was in the exercise of these powers that Osinbajo recently withheld his assent to four bills passed by the Senate last year.
The four proposed laws are National Lottery Amendment Bill; Dangerous Drug Amendment Bill; Agriculture Credit Guarantee Scheme Fund; and Currency Conversion Bill. Not satisfied with the acting President’s withholding of assent to the aforementioned bills, some members of both chambers of the National Assembly threatened to override the presidential veto on the bills; however, in an attempt to douse the rising temper in the legislature, Senate President Bukola Saraki, declared that the upper legislative chamber would seek legal advice before taking further steps on the matter.
After a letter from Osinbajo to the effect of his withholding assent to the bills were read at Senate plenary, Senator Dino Melaye averred that the acting President’s decision was dangerous for Nigeria’s democracy.
Melaye, who quoted extensively from the 1999 Constitution and claimed that the action of the acting President and the executive arm of government had injured the principle of separation of powers, stated that “the role of the Executive is to carry out its traditional role by signing any bill passed by the National Assembly.”
He insisted that the action of the acting President, if allowed to stand, would constitute a grave danger to Nigeria’s democracy and undermine the powers of the parliament. The Kogi-West senator quoted Section 4(1) of the constitution, which stipulates that: “The legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly for the federation, which shall consist of the Senate and the House of Representatives.
“The National Assembly shall make laws for the peace, order and good government of the federation or any part thereof with respect to any matter included in the exclusive list set out in part one of the second schedule of this constitution.”
He added, “The role of the executive is to carry out their fundamental objective by signing anything that has been passed by this House and anyone who has a problem with it can go to court in compliance with the provisions of Section 6 of the constitution.
“May it not be a bad day for democracy, if we keep quiet and allow the powers of the legislature to be usurped by non-compliance with the provisions of the constitution.”
Another lawmaker, George Sekibo, in his own reaction, reminded the lawmakers that they had the power to override the acting President if they were not satisfied with his decision.
Also, the House of Representatives had hinted that it might override Osinbajo’s veto. The Speaker, Yakubu Dogara, who informed his colleagues of Osinbajo’s refusal to assent to the bills, mandated the House Committee on Justice to scrutinise the basis for his decision.
Meanwhile, as the action of the acting President signaled a rising assertion of his authority, political analysts have said that it is also an early indication of potential frosty relations between him and the National Assembly.
They also averred that the ongoing disagreement between the two arms of government might be an extension of efforts of some forces, who were not well pleased with the acting President’s decisions since President Buhari went on medical vacation.
According to them, the acting President’s decision to assent or not to the bills should not be an issue that will cause the lawmakers to override him.
Reacting, Barrister Jide Adeshina, a Lagos-based lawyer and an activist, maintained that “while we think that the bills are developmental in sight, care must be taken in signing them, as they might not be all they seem.
This is why Osinbajo’s decision should be appreciated by Nigerians.” He added, “There is no doubt that one of the reasons policies and bills in Nigeria never work is due to lack of proper research and the inability of our leaders to understand vividly what they are getting Nigeria into by signing such bills or by implementing such policies. For the sake of clarity and effectiveness, it is only wise that the President understands every word and phrase on all bills before signing them.
“Nigeria is faced with educational backwardness, insecurity, unemployment and lack of basic amenities, among other pressing issues. It will be better if those in power see beyond themselves and come up with better plans and policies that are feasible and not just paper work.”
A law lecturer in the Lagos State University, Dr Gbenga Ojo, said the decision of the acting President should be respected in the interest of Nigerian democracy. He argued, “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: ‘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.’
“There is emphasis on ‘shall perform the functions of 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 Musa 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 f o r m limiting his powers as acting President.”
The Chairman, Presidential Advisory Committee Against Corruption, Prof. Itse Sagay, 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 it is for a 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.” A former Director-General of the Nigerian Law School, Prof. Tahir Mamman, SAN, however differs.
To him, “the 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 a u t h o r i t y 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.
“He will also like 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 be put on hold because the President is away.
Most importantly, the powers will enable the acting 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,” he added. 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.”
To a Lagos-based lawyer, Bamidele Olajire, “There are express provisions in the Constitution, especially 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 and cannot do. This is a big lacuna.
The reason is that, for instance, the Vice President cannot assume the power of appointment of ministers, making board appointments and what have you. “It will amount to a palace coup, if the Vice President starts embarking on such activities within 10 days of the President’s absence.
Therefore, in spite of the fact that the Constitution gives the VP the power to act, it also envisages his limitations. Though, it may not be written, the situation demands that he needs to act and leave when the President resumes.” But in all of these, whose interest is being served in the brawl between the legislature and the executive?
Definitely not the interest of Nigeria’s nascent democracy. As long as the acting President possesses the power to assent to Bills and therefore make such bills to become law, just like the President, he also should reserve the right to withhold his assent to any bill, which he thinks would not serve the best interest of the generality of the Nigerian people.
