Buhari’s Failure To Handover To Osinbajo Violates Constitution –Lawyers

Buhari’s Failure To Handover To Osinbajo Violates Constitution

Some senior lawyers have described the failure of President Muhammadu Buhari to handover power to Vice- President Yemi Osinbajo while leaving the country for medical trip abroad as a breach of the Constitution. The lawyers while baring their minds on the issue with Saturday Telegraph faulted the views expressed by a presidential aide, Garba Shehu, while trying to justify the president’s action. Shehu had said that since the president will only be away for three weeks, he did not need to handover to Osinbajo.

It will be recalled that President Muhammadu Buhari proceeded on a two-week medical trip to the United Kingdom (UK) Tuesday, as contained in a statement released by his Special Adviser on Media and Publicity, Femi Adesina. According to the statement, President Buhari is expected back in the country in the second week of April.

It was later stated that the president did not handover power to Osinbajo and that he would be ruling the country from his base in the UK. However, the lawyers while faulting this position said the president’s aide was wrong in his interpretation of the Constitution.

Speaking on the issue, a Senior Advocate of Nigeria (SAN), Mr. Olukayode Enitan, said there was no where in the Constitution where it is recorded that the president can travel for three weeks without handing over power to his Deputy. He said: “I do not share Mr. Garba Shehu’s view at all. Section 145 of the 1999 Constitution which provides for when there should be an Acting President during temporary absence of the President has no provision for number of days or weeks or how long the absence of the President from the country should be but provides for whenever the President will be on vacation or unable to discharge the functions of his office.

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“This clearly shows that there are two separate situations that are to trigger the transmission of a letter, i.e. vacation which could be medical as in the present circumstance or any form of inability to discharge the functions of the office. “It is unfortunate that everything is seen from the prism of a power grab in this country.

“Of course, the President is meant to trigger the Acting Presidency by transmitting a letter to the Senate President and Speaker of the House of Reps that he’s going away but rather than doing this we see Mr. Adesina informing Nigerians that the President is going abroad to see his doctors for two weeks. This does not meet with the intent of the Constitution in my humble view.” Enitan was echoed by a former Vice-President of the Nigerian Bar Association (NBA), Mr. Monday Ubani, who also faulted Shehu’s interpretation of the Constitution.

“The presidential aide, Shehu Garba, does not understand the provision of Section 145 of the Constitution of 1999. The three weeks he was talking about applies only when the president fails to transmit power which necessitates the legislature to empower the Vice-President to act as the president of the country. Garba Shehu is misinterpretung the constitution of Nigeria and he should be told to desist from so doing.

“For God’s sake, the moment the president is proceeding on leave, medical or otherwise, he ought to transmit to his Vice. The three weeks come into operation when after that time, the House will pass a resolution empowering the Vice-President to start to act. Garba Shehu should stop provoking Nigerians with his wrong interpretation of the Constitution,” Ubani said.

The human rights activist/ lawyer said that the 1999 Constitution of the Federal Republic of Nigeria was being misinterpreted by those who believe that the president could only be compelled to hand over power to his vice if he is absent for more than 21 days. Ubani, who is also a former Chairman of the Ikeja Branch of the Nigerian Bar Association (NBA) said in an interview with Saturday Telegraph that he was going to appeal against the judgment that stated that the President could decide not to hand over power to the Vice President if he would be away for less than 21 days, adding that there was no such provision in the Nigerian Constitution.

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“The constitution is saying that ordinarily if the president is going on vacation or for medical care abroad he should hand over power to his vice and that if he fails to do so, after 21 days the National Assembly can pass a resolution to empower the Vice President to act as the President,’ he said.

It will be recalled that after amendment, Section 145 subsections 1 and 2 of the 1999 Constitution reads: “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.

“In the event that the president is unable or fails to transmit the written declaration mentioned in sub-Section 1 of this section within 14 days, the National Assembly shall by a resolution made by a simple majority of the vote of each House of the National Assembly, mandate the Vice President to perform the functions of the office of the President, as Acting President, until the president transmits a letter to the President of the Senate and Speaker of the House of Representatives, that he is now available to resume his functions as President.”

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“There was no time the constitution state that the president has to be outside the country for 21 days before he hands over power to his vice. That is not the provision of the constitution. “The constitution is saying that ordinarily if the president is going on vacation or for medical care abroad he should hand over power to his vice and that if he fails to do so, after 21 days the National Assembly can pass a resolution to empower the Vice President to act as the President,’ Ubani said. Speaking in the same vein, Dr. Fassy Yusuf, also expressed deep concern about the lacuna being created by the president’s failure to handover power to Osinbajo.

He said: “As a lawyer, I am embarrassed with the lacuna being created by the president. After telling the whole world that he is going for a medical check-up, why is it impossible for him to handover to his vice for him to act in his absence? It is so sad and I cannot decipher why this should happen. “The president should have done the needful but he failed to do it. I want to know from the Presidency what is now expected of the Vice-President in the absence of the President. Should the Vice-President just watch as events unfold or he should just concentrate on his activities as the Vice-President and allow the President to rule from United Kingdom or wherever he goes? I want those in authority to know that the country is greater than anybody”.

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