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Osinbajo can act indefinitely as President, take critical decisions – Lawyers justify

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Following President Muhammadu Buhari’s unresolved health issue which has informed his indefinite medical vacation in the United Kingdom, the onus has, however, fallen on his vice, Professor Yemi Osinbajo (SAN) to take over the mantle of leadership of the country in acting capacity, pending the time Buhari is certified fit by his doctors to resume obligations as Commander-In-Chief of the Federal Republic of Nigeria.

However, the issue of how long Osinbajo can act on behalf of Buhari has always been a subject of national discourse since his first medical trip in January this year. Now, he has unavoidably proceeded on another one and no one knows exactly when he will return to Nigeria.

And since he travelled to the UK again for medicare, Osinbajo has taken charge and has been performing presidential functions.

ENCOMIUM Weekly sought the views of few legal practitioners who shed light on the heated debate in some quarters on how long Osinbajo can rule as Acting President and whether he is allowed constitutionally to take some critical decisions on behalf of his boss who is still battling health issues.

Human rights lawyer, Mohammed Fawehinmi stated unequivocally that Osinbajo can act  as president until the expiration of their joint term in office.

“By virtue of section 14 of the constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010, having complied with the substituted section 145 (1) of the 1999 Constitution (as amended), Acting President Osinbajo (SAN) can continue to act as President until Buhari transmits another letter to the Senate President, Bukola Saraki and the Speaker of the House of Representatives, Yakubu Dogara that he is unable to discharge his functions in accordance with section 146 (1) of the 1999 Constitution (as amended). Professor Osinbajo can function as President until the expiration of his term in office.”

Corroborating Fawehinmi’s submission, Barrister John Itodo also explained elaborately on the issue, saying, “The executive power of the Federal Republic of Nigeria is vested in the President which may be exercised by him directly or through the Vice President and Ministers of the Government of Nigeria in line with the provision of section 5 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). From the provision of the constitution cited above, it is clear on whom the executive powers of the Federal Republic of Nigeria is vested and who exercises it-the president or through the vice president.

‘Where, however, the President proceeds on an annual vacation or is otherwise unable to discharge the functions of his office as we currently have in Nigeria, he shall transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives to that effect “and the Vice President shall perform the functions of the President as Acting President”.

I invite you to see the provision of Section 145 (1) of the Constitution. The Vice President shall continue to perform the functions of the President until he (the president) transmits to the Senate President and Speaker of the House of Representative a contrary written declaration.

 

The net effect of this is that, Prof. Osibanjo can act as Acting President for the rest of Mr. Buhari’s first term tenure, which is till 2019. The provision of Section 145 is so compelling that:

 

  1. President Muhammodu Buhari as a person is now completely stripped of all executive powers as the President of the Federal Republic of Nigeria by virtue of his letter (declaration) to the Senate President and the Speaker of the House of Representatives and same is now vested in the Vice President, Prof. Yemi Osibanjo. Section 145 says and “the Vice President shall perform the functions of the President as Acting President”.

What functions? Let’s return to Section 5(1) for the answer – Executive power of the Federal Republic of Nigeria.

 

  1. The Acting President shall continue in his Acting President ‘position’ even if he (the president) returns to Nigeria today, until he, the President writes a contrary declaration to the Senate President and the Speaker of the House of Representatives. “Until he (the President) transmits to them (Senate President and the Speaker of the House of Representatives) a written declaration TO THE CONTRARY, THE VICE PRESIDENT SHALL PERFORM THE FUNCTIONS OF THE PRESIDENT…” this provision is clear and unambiguous.

 

  1. Bottomline, the Acting President in his capacity as the Acting President is fully in charge, he has taken over the steering wheels, he is on the driver’s seat for now; even the President cannot decide or dictate a thing to the Acting President from his base in London or sign or assent, sack or dismiss anybody, do or undo anything done or yet to be done by the Acting President. There is also no end to the tenure of Acting President. Only 2019 can determine it. There is also no limit to the extent of the decisions, powers and functions he, the Acting President can exercise or perform. He can do ALL that the President can do or would have been capable of doing as prescribed by the Constitution or an Act of the National Assembly.

 

  1. The only limit to the Acting President’s powers to act or continue to act as the Acting Vice President with the power to perform the functions of the President is the provisions of Section 143 (impeachment of the President or himself as the Vice President) and Section 144 (permanent incapacity or death); in which case, if the events envisaged in sections 143 and 144 do not affect him personally (the Vice President, that is), he becomes the substantive president.

 

The Acting President by the community reading of Sections 5 and 145 of the constitution of the Federal Republic of Nigeria can perform the functions of the President until the president writes a contrary declaration that he can now continue to act as the President. That means if it takes the president until 2019 to write a contrary declaration as stipulated in Section 145, Prof Osibanjo will continue to act till 2019.

 

This lacuna, however, calls for the attention of the National Assembly to amend this portion of the constitution and prescribe a time limit within which the President must return to full active capacity or forfeit his powers to so function as the substantive President of the Federal Republic.

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