President Tinubu’s Leave Extension Sparks Reactions

|  Lawyers divided on need to transmit power to vice president

By Jonathan Nda-Isiah, Kunle Olasanmi

President Bola Ahmed Tinubu’s decision to extend his working vacation by a few days has triggered fresh political and legal reactions, with former Vice President Atiku Abubakar questioning the constitutional status of presidential authority during the President’s prolonged absence from the country.

As Tinubu is expected to return to Nigeria at the weekend, the controversy has also drawn divergent interpretations from constitutional lawyers over the provisions of Section 145 of the 1999 Constitution on presidential absence, the transfer of executive functions and the role of the National Assembly.

Presidency Defends Tinubu’s Absence

Meanwhile, the Presidency has dismissed as baseless and irresponsible insinuations surrounding Tinubu’s non-attendance at the 81st United Nations General Assembly (UNGA).

In a statement issued yesterday, the special adviser to the President on Information and Strategy, Bayo Onanuga, said Tinubu would return to Nigeria at the weekend following the extension of his working vacation.

Tinubu left Nigeria on August 30 for London before travelling to Paris, where he met with French President Emmanuel Macron and businessman Vincent Bolloré, whose business interests include Canal+, MultiChoice and Universal Music Group.

While the President has been away, Vice President Kashim Shettima has represented him at official functions, including the ongoing UNGA in New York.

The Presidency said Shettima would deliver Nigeria’s national statement at the global gathering.

Atiku Questions Constitutional Procedure

However, Atiku questioned whether the constitutional procedure for the temporary transfer of presidential functions had been followed.

The former vice president, who is also the presidential candidate of the African Democratic Congress (ADC), cited Section 145 of the 1999 Constitution, arguing that the President is required to transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives when proceeding on vacation or otherwise unable to discharge the functions of his office.

Atiku said Nigerians had not been shown any such letter transferring presidential functions to Shettima.

He further argued that the 21-day period provided for under Section 145(2) had elapsed and called on the Presidency to publish the declaration if one existed.

“If such a letter exists, the presidency should publish it immediately,” he said.

Atiku also asked the National Assembly to explain why it had not activated the constitutional procedure under Section 145(2) if no declaration had been transmitted within the stipulated period.

The former Vice President said the issue was not one of political convenience but of constitutional order.

Shettima Represents Tinubu at UNGA

His concerns came as Shettima travelled to New York to represent Tinubu at the 81st UNGA, with the President’s absence from the annual gathering also attracting political criticism.

Responding to the controversy, the Presidency described insinuations by Atiku and a United States-based lobbying firm headed by an ex-convict concerning Tinubu’s non-attendance at the UNGA as baseless and irresponsible.

Onanuga said the President had continued to keep in touch with developments at home and direct the affairs of the nation during his working vacation.

He cited Tinubu’s order for an independent panel to investigate the deaths of 37 illegal miners in Minna following their detention by the Nigeria Security and Civil Defence Corps, among other actions.

The Presidency also disclosed that the Secretary to the Government of the Federation, Senator George Akume, who had been representing the President at official events, would continue to do so while Shettima attends the UNGA.

The statement added that the Director-General of the Presidential Campaign Council, Senator Abubakar Yari, had been leading notable party leaders in consultations with prominent traditional rulers across the country.

Lawyers React

A Senior Advocate of Nigeria, Mr Abdul Balogun, said the President has the constitutional right and power to go on vacation, provided he hands over power in accordance with the law.

According to him, Section 145(1) of the 1999 Constitution, as amended, provides for such a situation, provided there is no leadership vacuum.

Balogun said the President could extend his vacation as long as he complied with the provisions of the Constitution.

He said the President could remain outside the country for vacation and extend his stay abroad after properly transferring presidential functions to his deputy, as prescribed by the Constitution.

“The reason a sitting President would formally transfer authority is to allow him to travel abroad for private vacations, medical treatment or personal leave without creating a leadership vacuum in the country.

“In fact, he has the right to extend his stay, provided he complies with the provisions of the 1999 Constitution, as amended.”

Constitution Does Not Set a Fixed Number of Days

A Lagos-based constitutional lawyer, Adeyinka Matiluko, said the 1999 Constitution does not specify a particular number of days that a Nigerian President may spend outside the country before transferring presidential functions to the Vice-President.

Matiluko, in his interpretation of the constitutional provisions governing presidential absence, said the relevant provision is Section 145, which deals with situations where the President proceeds on vacation or is otherwise unable to discharge the functions of his office.

He said the Constitution does not stipulate that a President automatically forfeits or transfers his powers merely because he has remained outside Nigeria for a certain period.

According to him, Section 145 provides a mechanism whereby the President may transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives stating that he is proceeding on vacation or is otherwise unable to perform the functions of his office.

Matiluko said that when such a declaration is transmitted, the Vice-President assumes the functions of President as Acting President until the President transmits another declaration that he has resumed those functions.

He emphasised that being physically outside Nigeria should not, by itself, be equated with constitutional incapacity.

“The Constitution does not prescribe a fixed number of days after which a President who is outside the country automatically ceases to exercise presidential powers,” he said.

Section 145 and Presidential Authority

The lawyer noted that the constitutional question therefore extends beyond the President’s physical location and depends on whether he can discharge the functions of his office and whether the procedure contemplated by Section 145 has been activated.

Matiluko also distinguished presidential vacation from permanent incapacity, noting that Section 146 of the Constitution addresses the latter separately.

He said Section 145 does not explicitly impose a criminal sanction or provide that the office of President automatically becomes vacant if the President fails to transmit the required declaration.

“Any argument that failure to transmit the declaration automatically transfers presidential powers to the Vice-President must therefore be based on constitutional interpretation; it is not an automatic consequence expressly stated in Section 145,” he said.

Matiluko said the underlying purpose of Section 145 was to ensure continuity in the exercise of executive powers where the President is on vacation or otherwise unable to perform his official functions.

He added that the Vice-President’s assumption of presidential functions under Section 145 should not be confused with succession to the office of President, as the President remains in office while the Vice-President acts in that capacity.

The 21-Day Provision

Another lawyer, Oladele Joseph, argued that President Tinubu’s prolonged absence from Nigeria raises a constitutional question about whether the National Assembly should activate Vice-President Kashim Shettima in an acting capacity.

Joseph said the matter should be examined under Section 145 of the 1999 Constitution, particularly the 21-day provision in subsection two.

He explained that the Constitution envisages a situation in which a President who is on vacation or otherwise unable to perform his duties does not transmit the required written declaration to the President of the Senate and the Speaker of the House of Representatives.

According to him, Section 145(2) provides that if the President does not transmit such a declaration within 21 days, the National Assembly may, by a simple majority in each chamber, instruct the Vice-President to act as President.

National Assembly’s Role

Matiluko said the provision was intended to prevent a constitutional vacuum when a President remains away for an extended period without formally activating the Vice-President’s role.

He said the expiration of the 21-day period should prompt questions about whether the National Assembly has fulfilled its constitutional responsibility under Section 145(2).

“The key issue isn’t just that the President is outside the country. The Constitution has a specific mechanism for long presidential absences,” Matiluko said.

He added that Section 145(1) requires the President, when proceeding on vacation or otherwise unable to discharge his duties, to transmit a written declaration to the leadership of the National Assembly.

If such a declaration is transmitted, he said, the Vice-President acts as President until the President sends another declaration stating that he has resumed his functions.

“But if the President cannot or fails to send the declaration within 21 days, Section 145(2) requires the National Assembly to instruct the Vice-President to perform the President’s functions as Acting President,” he said.

Shettima Does Not Automatically Become Acting President

He emphasised that this interpretation does not mean Shettima automatically becomes Acting President after 21 days.

“The Constitution doesn’t say the Vice-President automatically assumes Acting President after 21 days. It requires the National Assembly to authorise him to perform as Acting President,” he clarified.

He also pointed out that once the 21-day period expires without the President transmitting the declaration, the National Assembly’s role becomes a key constitutional issue.

“The passing of 21 days triggers the constitutional duty of the National Assembly. The question is whether the Assembly has followed the steps in Section 145(2),” he explained.

The lawyer distinguished this situation from permanent incapacity, which is addressed separately under Section 146 of the Constitution.

He warned against equating physical absence from Nigeria with an automatic loss of presidential powers, noting that the legal consequences depend on the circumstances and the procedures set out in Section 145.