Having watched the Vice Presidential Debate and observed the praises from supporters of both Peter Obi and VP Yemi Osinbajo, I felt the need to make Nigerians see that the position of a vice president in Nigeria is valueless and less impactful according to the Nigerian constitution.

Don't be deceived, the REAL decision maker is the President, the vice president is only like a spare tyre. Its usefulness is in the absence of the President. Below is an excerpt from an article written by a law professional.

DUTIES AS ACTING PRESIDENT

The inadequacies and lacunae in our constitution came to light in 2009 when president Yaradua travelled outside the country for treatment without transmitting a letter to the National Assembly apprising them of his trip. There was confusion everywhere in the country because Goodluck was redundant as Vice-president and no one was exercising the powers of the President. Some were suggesting that Jonathan should take over executive powers pending the return of the President while others were opposing the suggestion. There arose the need for constitutional interpretation in order to lay every controversy to rest. Among the questions that agitated minds of the people were: Could vice president discharge the functions of the president in the absence of the president? If the answer is in the affirmative, why? And if no why? Another question was: what was the status of Jonathan at that point in time since Yaradua was outside the country? Was he just a Vice-president or was also an Acting President at the same time?

In Onwueke v A. G, Federation FHC /ABJ/ CS/10 /2010, High Court Abuja held to the effect that Vice President could by section 5(1) and 148(1), in the absence of the sitting president, exercise all the powers vested in the President. He said the exercise of such presidential powers by the Vice President could be queried only by Mr President if he did not permit the Vice President to so perform the presidential functions and that if the president did not complain or challenge the vice president or his ministers over usurpation of his constitutional functions, no one could challenge the exercise of his presidential functions by any member of his cabinet. And that Goodluck was to exercise those powers in his capacity as VICE-PRESIDENT. He could sign anything the President could sign, he could send bills to the National Assembly and he could sign any bill.

The above decision still raised some fundamental questions, I. e. Why was Jonathan not Acting President? Or put it in a different way, who is an Acting President? And what was the extent of the powers of an Acting President? High Court in answering this question reasoned that, by the provisions of the constitution, Acting president is someone who assumes the powers of the President of Nigeria in accordance with section 145 thereof.

The provision of section 145 is as follows:

“Whenever the President transmits to the President of the Senate and 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.”

While interpreting the above section, the Court held that Vice President could perform the functions of the President as Acting President ONLY if a written declaration is transmitted to the National Assembly. And when he transmits, it means the Vice President is no longer exercising the powers of the President on his behalf but exercising the powers in his own right.

Fortunately or unfortunately, seemed not contented with the decision of the court, the Senate invoked the “doctrine of necessity” and declared Jonathan the Acting President of Nigeria to discharge the functions of the president.

It should be noted that section 145 does not, within the words used in the section, make it mandatory for the President to convey to the National Assembly a declaration of his impending inability to discharge the functions of his office. However, when that section is read together with all other relevant provisions of the Constitution, one may be right to say that it becomes incumbent upon the President to do so since in law, whenever any provision of the Constitution is to be interpreted, that provision must be considered in the context of the whole Constitution. This finds support of the Supreme Court in the case of Okulate vs Awosanya [2000] FWLR 1552 -1743 (Part 25) where per Uthman Mohammed, JSC, stated the law at 1695 thus:

“it is settled law that when interpreting the provisions of the constitution, all its provisions must be read together.”

With the above decision as a background and for a proper understanding of section 145, if section 1(2) which provides for governing only in accordance with the provisions of the constitution, is read together with the Seventh Schedule to the Constitution which contains the Oath of Allegiance and the Oath of Office as well as section 5(1) and section 148 of the Constitution, it may be said that the first and paramount duty of any President of the Federal Republic of Nigeria is to ensure the continuity of constitutional government in the country. Consequently, section 145, taken together with the President’s Oath of Allegiance and his Oath of office, compels the President, any time he realizes that he is going to be unable, for any reason whatsoever, to discharge the functions of his office, to take the necessary step to ensure the continuity of constitutional government in the country during his absence. This writer is of the view that but for the faulty draft of the section 145, the above argument as to whether the transmission of letter to the National Assembly is mandatory or not would not have arisen.

Without prejudice to all that has been said above, the position of the law as it is today is that if president leaves the country without transmitting a declaration letter, Vice President would exercise all executive functions on behalf of the president unless the President says otherwise and can be questioned only by the president and no one else. However, if a written declaration is transmitted to the Senate, then the vice’s duty becomes dual, to wit, that of the President and that of his office as vice President. Here he does not act on behalf of the president, he acts as Acting-President as of right and not subject to any inhibitive factor.

Furthermore, whether person is a Vice-president or an Acting President, whether a letter is transmitted to the National Assembly or not, in the absence of the president, Vice President is entitled to exercise all executive functions of the president. “Acting President” is just a matter of nomenclature. Peradventure, the only difference is that in the capacity of Vice-president, executive powers are exercised on behalf of the president while under Acting President, powers are exercised ex debito juticere (as of right)

At this point we would look at those powers of the President the “Acting President” is to exercise. President exercises executive powers and Executive powers generally means execution of laws made by the National Assembly. Section 5(1) of the constitution provides as follows:

Subject to the provisions of this Constitution, the executive powers of the Federation:

(a) shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and

(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

However, a careful perusal of the above provision shows tha, the powers of the President goes beyond execution of laws for three reasons, to wit, the section opens with “Subject to the provisions of this Constitution”. Which means the executive powers of the President as provided in this section is subject to other provisions of the constitution. In other words, there are other powers provided within the constitution. And under sub (a) it makes the powers subject to the Acts of the National Assembly. Lastly, the use of the phrase “extends to” which suggests that there are other powers apart from the ones under section 5.

The other powers of the President are: security powers which is basically anchored on giving directive to the Inspector-General of Police, through the Nigeria Police Council, under section 216, as well as under section 218 of the Constitution, which empowers the President to determine the operational use of the Armed Forces, power to appoint and remove from office. Example, ministers, Special Advisers,ambassadors etc, declaration of state of emergency under section 305, prerogative of mercy under section 175, assent to bills under section 58 reading together with section 2 of Interpretation Act, 2004 and many other powers.

In the absence of the president, the Vice 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.

FALLACY IN THE POWERS OF NIGERIA’S VICE-PRESIDENT

The Nigerian Constitution, like the American presidential system, envisages single executive for which the President is the head and in whom the executive powers are vested. Article 11 of the Constitution of the United States, just like section 5(1) of our Constitution, provides that “the executive power shall be vested in a President of the United State.” The principle implies the preclusion of vesting of the executive powers in two or more persons of equal authority.

In Zimbabwe, it is mandatory for the president, subject to certain exceptions, to act upon the advice of the cabinet. This model underlines the importance of participatory decision-making process unlike the Nigeria’s which allows for presidential dictatorship.

The Nigerian constitution gives the vice-president the power to advise the president under section 148 thereof but it does not make it mandatory for the president to accept the advice. In Governor of Kaduna State v Kagoma (1982) All N.L.R 160 Nnamani J. S. C. said:

“although it is mandatory that he holds regular meetings with his Commissioners, it is clear that the content of what is to be discussed in such meetings is in his discretion; …the Governor is not obliged to accept any advice tendered at such meetings. …The Governor of a State is therefore… the repository of the executive power of that state. He is the Chief Executive of that State.”

The Vice president also does only what the President assigns him to do, nothing more. Making the Vice President relevant only in the absence of the President leaves many questions than answers. Vice President does not exercise real executive powers. This explains why in practice vice-president turns to be an errand boy or excessively loyal in order to maintain relevance by being assigned duties by the President. This goes to show that if vice-president is stubborn or has acrimonious relationship with the President, he will remain redundant.

The Vice-President is only a deputy chairman; his powers would again depend to a very large extent on his relationship with the President. If there is cordial relationship between them, the President may always stay away from meetings and allow the Vice-President chair them, thus making the Vice-President functional. If the relationship is not cordial then the President would ensure that meetings come-up only when he has the time to chair, not when he would not attend.

One is constrained at this point to ask: do we actually need the office of the vice-president? If the answer is yes then why? One wonders what the framers of the constitution intended the kind of a national officer the Vice-President should be. Could it be that they envisaged a powerless second citizen who would only be seen but not heard? Or a Vice-President who is only at the mercy of the President? He is a national Officer who does not have constitutional powers of his own except as granted at the whims and caprices of the President. He is of less constitutional value and of less political relevance. The makers of our Constitution appear not to have thought of the office as being of any serious significance except in the event of vacancy in the office of the President.

It is on this note that a writer, Nat OFO (in his article Rethinking the Leadership Role of the Vice-President of Nigeria) described vice-president as “a spare president” (Akin to a spare tyre that is only relevant and put into use when any of the main tyres are unusable, defective or damaged)

CONCLUDING REMARKS.

A dispassionate and careful consideration of some of the provisions of the Constitution has shown some lacunae existing in the constitution. Now in view of the current commitment the National Assembly has shown in amending the Constitution, it is desirable for this writer to proffer precise recommendations toward the amendment of the 1999 Constitution to make it wholesome, relevant and suitable to deal with leadership challenges at the topmost executive level of government.

The areas requiring constitutional amendment are: the express stipulation of specific executive roles for the Vice-President in the Constitution under section 5(1) and 148(1), temporary absence of the President under section 145, and the Vice-President succeeding the President under section 146(1)

It is hereby suggested that the constitution should stipulate a specific functional role for the Vice-President. It can be a ministry or a particular government department without making it subject to the President or anybody’s approval. It should be a matter of right as the vice-president of Nigeria.

This will ensure that the Vice-President plays a definite, certain and more active role in the administration. A situation of having a top-ranking number two citizen who is almost entirely redundant will be eliminated. If this recommendation is acceped, the Vice-President will cease to be a mere spare President, waiting President or a figure-head and/or the President’s errand boy. He would be a more active and responsible State official vested with specific executive function(s). The turbulent relationship between President Obasanjo and Vice President Atiku would not replicate itself. This writer should not be misconstrued as suggesting a parliamentary system of government since he is not advocating that one should be Head of State and the other should be Head of government. Perhaps one would be correct to say that the single executive for which the President is the head and in whom the executive powers are vested is because of the Presidential system we are practicing. It is strongly submitted that there are no hard-and-fast rules about a system of government a country should adopt. Nigeria as a sovereign state has the carte blanche to adopt any system with such modification as its peculiar political experiences, exigencies and the political future may demand. It has the right by its grundnorm (constitution) to arrogate an executive power to Vice President. Office of Vice-President should be like a training field for those eyeing the presidency. Because while serving as the Vice-President, he will be exposed to the rudiments of state administration.

Section 135(2)(b) needs amendment. The word “elected”, which the court in Good luck’s case made heavy weather of and misdirect itself, should be expunged. It should now read as follows:

135(2) “Subject to the provisions of subsection (1) of this section, the governor shall vacate his office at the expiration of a period of four (4) years commencing from the date when:-

…

(b) The person who last held that office took the Oath of Allegiance and Oath of Office or would, but for his death, have taken that oaths.”

Section 145 of the constitution also needs redrafting. To avoid a situation where president would one day leave this country without transmitting a letter to the National Assembly. Preferably, the section 145 should be drafted in a commanding tone as follows:

“Whenever the President is proceeding on vacation, or is for any other

reason unable to perform the functions of his office, he shall transmit to the President of the Senate and the Speaker of the House of Representatives a declaration that he would be unable to discharge the functions of his office and until he transmits to them a written declaration to the contrary, such functions shall be discharged by the Vice-President as Acting President“

Section 146 which gives various conditions under which the vice-president shall assume the office of the President should also be amended to specifically mention that if Vice finishes the tenure of the president on the ground of death or for whatever reason, he will be entitled to contest for the office of the President not more than once.

CHUKKOL
email – oliverchukkol@gmail.com

nice narrative

If u hv a Team not a selection as President and vice , then u will understand that the Vice is a Major player!

Have a look at
Trump/pence!
Obj/ Atiku in the first 4 years
Now
Atiku/ Obi!

Nigeria will be Great Again!

Pmb/Osinbajo is more of a forced alliance! The reason why their sooo much gap in governance

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