Posted in THEY SAY IT BETTER

RE: PRESIDENT APPOINTING THE VEE PEE AS COORDINATOR IS AN IMPEACHABLE OFFENSE – A REJOINDER BY CHARLES ADEKUNLE ESQ.

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photocredit: Nigeriagalleria.com

I have read the statement credited to Lagos based Lawyer and Activist , Mr. Ebun Olu Adegboruwa calling for the impeachment of President Buhari on the ground of gross misconduct.

The gross misconduct according to him was occasioned by the letter transmitted by the President to the National Assembly in which President Buhari purportedly appointed the Vice President, Prof. Yemi Osinbajo SAN, as the Coordinator of government affairs in his absence as he embarks on medical vacation in London.

The full statement is available here.

With all respect due to my learned friend, I think his position is untenable and even against the spirit and letters of the Constitution particularly on the issues of acting presidency and impeachment. It is simply making a mountain out of a molehill.

To start with, I am of the firm view that President Buhari’s letter is in accordance with section 145(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
For purpose of clarity, Section 145 (1) provides that:
“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”.

I am also of the opinion that the President does not even have the power to choose who will become the Acting President in his absence. The Constitution has already taken care of that, hence the ascendancy of Vice President Osinbajo to Acting President Osinbajo is automatic.

To adopt a simplistic approach to a weighty constitutional issue, the President’s choice of words in his letter does not matter, he need not even allude to section 145 in his letter. That President Buhari mentioned the constitutional provision should settle the whole issue.

The President could have just written “Dear Senate President, I write to inform you that I will be travelling to London on medical vacation indefinitely. Thank you.” and it will suffice because the Constitution has already provided that until he transmits another letter indicating his return and readiness to discharge the functions of his office, “the Vice President SHALL perform the functions of the President as Acting President”. The written declaration contemplated by section 145(1) is only to the effect that the President is embarking on vacation or he is otherwise unable to discharge the functions of his office.

It is elementary law and even the Supreme Court has decided in plethora of cases that in interpretation of statutes, especially the Constitution, words should be given their literal meaning except where same will lead to ambiguity. It is submitted that there is no patent or latent ambiguity in Section 145, thus the word “SHALL” must be given its literal and ordinary interpretation as a mandatory provision.

See PEOPLES DEMOCRATIC PARTY V CONGRESS FOR PROGRESSIVE CHANGE (2011) LPELR-SC.272/2011 where the Supreme Court of Nigeria held Per Walter Samuel Nkanu Onnoghen JSC (now CJN) that:

“It is settled law that in interpreting a constitutional provision the court should adopt a broad approach to the process. Also settled is the principle that where the words of the constitution or statute are plain, clear and unambiguous, they must be given their natural, ordinary meanings as there is nothing, in effect to be interpreted.”

It is imperative to note that it is not even the Senate that declares the Vice President as Acting President. All that is required of the National Assembly is to signify that they are in receipt of a letter from the President that he is embarking on medical vacation abroad, and simply allow section 145 to take its course.

Considering the furore that this letter has generated, one is bound to ask, who is the Presidency sef? And what is the primary constitutional function of the President? A community reading of Section 5 and section 130 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) will reveal that the President is the National coordinator of Government’s affairs. Hence, the Acting President who will now perform the President’s function will also be the National Coordinator of government’s affairs.

The allegation of Mr. Ebun Olu Adegboruwa that President Buhari has illegally handed over powers to the cabal is unfounded, as the Constitution has taken great pains to provide for the order of Succession in the Presidency. A careful perusal of sections 135, 136, 143, 144, 145 and 146 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) will reveal that the drafters of the Constitution are abreast of the maxim that “natura abhorret a vacuo” translated as nature abhors vacuum.

This particularly inspired the National Assembly to amend the Constitution and introduce Sub Section (2) to section 145, after the vacuum created during the days of President Yar’adua and the eventual invocation of the Doctrine of Necessity to enable the then Vice President, Dr. Goodluck Jonathan become the Acting President, all in a bid to ensure that there’s no vacuum, and government’s action is in continuum.

On the issue of impeachment for gross misconduct, it is apposite to refer to section 143(11) of the 1999 CFRN (as amended) which defines gross misconduct as “a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct”. The case of Inakoju v Adeleke (2007) 4 NWLR (Pt.1025) 423 is instructive on this point.

I submit that since President Buhari’s letter is in compliance with the provisions of the Constitution and not a breach of same, no gross misconduct whatsoever has been committed. One must also commend Senator Bukola Saraki, the President of the Senate and Chairman of the National Assembly for quickly nipping the matter in the bud and not allowing it to degenerate to a constitutional fiasco. If in the opinion of the National Assembly, President Buhari has not breached the Constitution, then Mr. Ebun Olu Adegboruwa’s call for the President’s impeachment for gross misconduct must, of necessity, go to no issue.

At this point, the noble duty of all Nigerians and friends of Nigeria is to wish President Muhammadu Buhari quick recovery, wisdom to resign if need be, and the grace for Acting President Yemi Osinbajo to lead us to greater heights in the interim.

Charles Adekunle Esq, a Concerned Citizen of the Federal Republic of Nigeria is an Abuja based Legal Practitioner. He is passionate about leadership and blogs at http://www.leadersplanetinc.wordpress.com. He can also be reached at coadekunle@gmail.com

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