The Constitution And President’s Vacation

A basic principle of Nigeria’s constitutional democracy is that  no one, including the President, is above the Constitution.

That principle is now being tested by President Bola Ahmed Tinubu’s prolonged absence from Nigeria and the failure to comply with Section 145 of the 1999 Constitution.

As is publicly known, President Tinubu left Nigeria on August 30 for what the Presidency described as a three-week working vacation. On September 21, the Presidency announced that the vacation had been extended by a few days. By September 28, the President had still not returned, while the Presidency maintained that he remained in contact with officials and continued directing government affairs from abroad.

However, the key constitutional question is not whether President Tinubu can work from abroad; it is whether he has complied with the Constitution.

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Section 145(1) provides that whenever the President proceeds 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.

Section 145(2) further provides a mechanism for the National Assembly to mandate the vice-president to perform the functions of president as acting president where the president fails to transmit the declaration within the prescribed period.

That provision cannot simply be glibly explained away by describing the absence as a “working vacation.” Such a term is unknown to law.

The Presidency may argue that President Tinubu remains fully engaged, receives briefings, communicates with officials and continues to issue directives. All of that may be factually true. But none of it answers the constitutional question of whether the procedure prescribed by Section 145 has been followed.

The prolonged absence of the late President Umaru Musa Yar’Adua created a serious constitutional crisis because there was no formal transfer of presidential authority to Vice-President Goodluck Jonathan. In February 2010, the National Assembly invoked the Doctrine of Necessity to recognise Jonathan as acting president. That conatitutional lacuna prompted the then National Assembly to amend the constitution, giving the National Assembly the duty to empower the vice president to assume duty as acting president if such a scenario occurred. That removed the official tranafer of presidential authority from the realm of personal choice and convenience to that of a constitutional requirement.

The administration of the late President Muhammadu Buhari complied with this law when he transmitted authority to Vice President Yemi Osinbajo during one of his medical vacations.

It would therefore be deeply unfortunate if Nigeria now found itself debating essentially the same constitutional problem that the amendment had already addressed.

As a newspaper, we do not subscribe to the argument that modern technology enables the President to govern Nigeria from anywhere in the world. While technology can make governing from abroad possible, it cannot, however, rewrite the Constitution,  but constitutional authority is governed by law, not by technological convenience.

As president, Tinubu took an oath to uphold the Constitution. He should therefore ensure that every constitutional requirement concerning his office is observed, particularly one dealing directly with the exercise of presidential power.

But where he failed to do so, the section of the constitution empowers the National Assembly to act as a check and balance to the abuse of executive authority.

As a newspaper we are appalled that the leadership of the Senate and House of Representatives have remained apathetic to this apparent breach and unwilling to perform this function demanded by law.

As a newspaper, we wish to remind them that their responsibility is to defend the Constitution and provide the checks and balances necessary in a presidential democracy.

Their response to this controversy should therefore not be determined by party loyalty or political convenience.

The National Assembly must equally remember that its constitutional duty is not to protect the comfort of the executive but to protect the Constitution. If the constitutional threshold has been breached, the National Assembly must act. If the lawmakers do not act, then they too are in breach of the constitution.

It is important to point out that it is bigger than President Tinubu and bigger than the ruling All Progressives Congress. The precedent established today will remain available to future presidents and future legislatures.

The danger with the current situation is that the populace are aware of this presidential breach and failure of the Legislature to do the needful. This is setting a bad example by those at the top leadership of the  country.

It is good that the African Action Congress (AAC) has taken the matter to the courts of the land. We urge other public spirited groups and individuals to join them in demanding accountability from the two arms of government.