What the Constitution Says on the Prolonged Absence of the President - Nigeria





The constitutional crisis which has rocked the nation for over two months now arose because President Yar’Adua went, or was taken, to Saudi Arabia on November 23, 2009 on health grounds without sending to the National Assembly, as envisaged in section 145 of the Constitution, a declaration concerning his impending absence from office.

This has made it constitutionally impossible for the Vice President to be sworn as Acting President. Consequently, Nigeria has had neither a President nor an Acting President for over two months.

Section 145 provides as follows:
“Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary, such functions shall be discharged by the Vice-President as Acting President”.

Taking this provision on its face value, the President, his Ministers and some other people claim that the President had discretion as to whether or not he informed the National Assembly that he was going to be unable to discharge the functions of his office.

Regrettably, many provisions of the Constitution are poorly drafted. In my book, Understanding the Nigerian Constitution 1999: ( Lagos 2000), and in several recent articles titled Improving the Drafting of the Constitution (published in The Nation newspaper and on the Internet), I have noted and commented on many of the ambiguous or otherwise poorly drafted provisions of the Constitution. I noted that such shoddy drafting could lead to serious constitutional crises and even political conflicts. Right now, the procedure set out in section 144 for dealing with the permanent incapacity of the President raises several questions. Also, as I have explained elsewhere, the provision in section 146(1) is quite capable of generating serious controversy leading to conflict and chaos due to the inappropriate use of the word “impeachment” in that provision.

Perhaps, with greater foresight, section 145 could have been put in a commanding tone, thus:

“Whenever the President is proceeding on vacation, .. .. he shall transmit to the President of the Senate and the Speaker of the House of Representatives a declaration that he would be unable to discharge the functions of his office .. .. “

It is true that section 145 does not, within the words used in the section, make it mandatory for the President to convey to the National Assembly a declaration of his impending inability to discharge the functions of his office, that section. However, when tha section is read together with all other relevant provisions of the Constitution, it becomes incumbent upon the President to do so. In law, whenever any provision of the Constitution is to be interpreted, that provision must be considered in the context of the whole Constitution. Thus, in the case of Efuawape Okulate & Ors vs Gbadamosi Awosanya & Ors [2000] FWLR 1552 -1743 (Part 25) the Supreme Court, per Uthman Mohammed, JSC, stated the law at 1695 as follows:

“There is no doubt that it is settled law that when interpreting the provisions of the constitution, all its provisions must be read together.(Adesanya vs President of Federal Republic of Nigeria (1981) 2 NCLR 358 referred to p.1695,(para.C)

Pursuant to the above-stated principle of constitutional interpretation and, specifically, for a proper understanding of section 145, it is necessary to read that section in conjunction with The Seventh Schedule to the Constitution as well as section 1(2), section 5(1) and section 148 of the Constitution. This is because, on assuming office, a President of Nigeria takes and subscribes two Oaths contained in the Seventh Schedule to the Constitution. These are the Oath of Allegiance and the Oath of Office.

In his Oath of Allegiance to the Federal Republic of Nigeria, the President swears “to preserve, protect and defend the Constitution of the Federal Republic of Nigeria.” In particular, and most importantly, the President undertakes a sacred duty to “preserve, protect and defend” subsection (2) of section 1 of the Constitution, which is the very foundation of democratic government in the country. That subsection goes thus:

“(2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.”

. Thus, by his Oath of Allegiance, President Musa Yar!Adua publicly declared -
“ I .. .. ..do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria and that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria. So help me God.”

The second oath is the Oath of Office of President and it goes thus:.
“I .. .. .. do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria, that as President of the Federal Republic of Nigeria I will discharge my duties to the best of my ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law, and always in the interest of the sovereignty, integrity, solidarity well-being, and prosperity of the Federal Republic of Nigeria; .. .. ”

When subsection (2) of section 1 of the Constitution is read together with the above Oaths, it is clear that the first and paramount duty of any President of the Federal Republic of Nigeria is to ensure the continuity of constitutional government in the country. Consequently, section 145, taken together with the President’s Oath of Allegiance and his Oath of office, compels the President, any time he realises that he is going to be unable, for any reason whatsoever, to discharge the functions of his office, to take the necessary step to ensure the continuity of constitutional government in the country during his absence.

In the circumstances, since the President had undertaken a sacred duty to ensure the continuity of constitutional government in the country, he could only have done so by informing the National Assembly of his impending inability to perform the functions of his office so that the Vice-President could be sworn-in as Acting President during his absence. By not doing this, the President failed to discharge the duties he swore to discharge “to the best of my ability, faithfully and in accordance with the constitution of Nigeria and the law.”

What the Vice-President cannot do.

It might be thought that the Vice--President could, by delegation from the President under section 5(1) or 148 of the Constitution, take some executive actions without being sworn-in as Acting President. This, in my considered view, is not correct because the executive powers of the Federation cannot be delegated to anyone else by the President. Section 5 of the Constitution provides:

“5– (1) Subject to the provisions of this Constitution, the executive powers of the Federation –
(a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
…. ”

Section 148 provides thus:
“148 (1) The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation the responsibility for any business of the Government, including the administration of any department of government.”

It is clear from these two provisions that what the President can delegate to the Vice-President and the Ministers are functions, not the executive powers of the Federation. The constitutional status of the Vice-President with respect to the delegation of functions from the President is no higher than that of the ministers. If the President could delegate the executive powers of the Federation to the Vice-President under section 5(1) or under section 148, so also could he, under the same provisions, delegate those powers to any of the Ministers of the Government or even (under section 5(1)) to officers in the service of the Federation.

It must be emphasized that it is only under and by virtue of Section 145 of the Constitution that the executive powers of the Federation, that is, the power to govern the country in all its ramifications, can be transferred to the Vice-President, not by the President, but by the Constitution itself.

The only manner in which the executive powers of the Federation can be transferred or transmitted from the person duly elected for the purpose of exercising those powers to any other person (that is, the VP or a Minister) is through the procedure set out in section 145 of the Constitution. That procedure is that whenever each House of the National Assembly is informed in due and proper form of an impending interruption of constitutional government in the country, then the National Assembly immediately comes under a constitutional duty per section 1(2) of the Constitution to put in motion the formal transfer of the Executive Powers of the Federation to the Vice-President

The enormous powers granted to the President of the Federal Republic of Nigeria under the 1999 Constitution are essential for the protection of the Nation, for good governance and the well-being of the people. The consequence of failing to transfer those powers to the Vice-President in the absence of the President is that many crucial aspects of state power and national interest remain in abeyance. For example, section 130 (2) of the Constitution stipulates that:
“130(2) The President shall be the Head of State, the Chief Executive of the Federation, and Commander-in-Chief of the Armed Forces of the Federation.”

From the above provision, it follows that unless and until he is sworn-in as Acting President, the Vice-President is neither the Head of State, nor the Chief Executive of the Federation nor the Commander-in-Chief of the Armed Forces. He cannot give any lawful orders to the Armed Forces since he is not their Commander-in-Chief.

If foreign powers are making hostile movements in or near Nigeria’s territorial waters, or near our land borders, the Vice-President cannot act. As for the Armed Forces themselves, they have no constitutional power to take any military action that might lead to war with another country, even if that war is essential for the protection of national security and sovereignty. It is therefore obvious that in the present situation, Nigeria is in a very vulnerable position with respect to international security.

It is only the President of the Federal Republic of Nigeria in consultation with the National Defence Council that can deploy Nigerian armed forces outside the country. Section 5(5) provides thus:

(5) Notwithstanding the provisions of subsection (4) of this section, the President, in consultation with the National Defence Council, may deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger.

Not being the President of Nigeria, the Vice-President cannot act under section 305 of the Constitution to proclaim a State of Emergency in any part of the country. Subsection (1) of that section provides as follows:
“305 – (1) Subject to the provisions of this constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part of thereof.”

The powers of the President with respect to national security, both internal and external, are enormous as he is in complete control of the matter. He is the chairman of both the National Security Council and the National Defence Council and he appoints their members except the ex officio members. The totality of the role of the National Defence Council is “to advise the President on matters relating to the defence of the sovereignty and territorial integrity of Nigeria” (para.17, Part I of the Third Schedule to the Constitution) while that of the National Security Council is “to advise the President on matters relating to public security including .. ..” .(para. 26, Part I Third Sch.). The Vice-President cannot perform any of these roles unless he is sworn as Acting President.

The Vice-President cannot act under section 215 (1)(a) of the Constitution to appoint a new Inspector-General of Police “on the advice of the Nigerian Police Council” or to dismiss him under section 216(2). If the position falls vacant now the country will be without an Inspector-General of Police.

The Vice-President cannot appoint Ministers or even nominate people to the Senate for such appointments which are the prerogatives of the President under section 147(2), nor can the Vice-President act under section 154 to appoint the chairmen and members of any of the 14 statutory federal bodies established under section 153 of the Constitution.

The Vice-President cannot exercise the President’s power of the prerogative of mercy under section 175 of the Constitution which provides:

“175- (1) The President may –
(a) grant any person concerned with or convicted of any offence created by an of the National Assembly a pardon, either free or subject to lawful conditions”
The exercise of this power is subject to consultation with the Council of State under subsection (5) of the section.

The Vice-President, not being Nigeria’s Head of State, cannot accept Letters of Credence from the envoys of other countries on behalf of Nigeria. He cannot accredit Nigerian envoys to other countries. The Vice-President is not clothed with the executive powers of the Federal Republic of Nigeria. As will be shown later, his status under the Constitution is no higher than that of any of the Ministers.

It is very important to note that the Vice-President cannot usurp the power of the President by acting under section 58 of the Constitution to assent to any Bills passed by the National Assembly or under section 59 to assent to money Bills (the Budget). The National Assembly cannot avoid the necessity of obtaining the President’s assent to Bills by resorting to section 58(5) or section 59(4) by passing the Bill with a two-thirds majority without reference to the President since they are required in the first place to present the Bill to the President.

It is pertinent here to advert to the position of the Executive Council of the Federation (popularly called the Federal Executive Council or FEC). Under the Constitution, the role of the FEC is purely advisory. Section 148(2) of the Constitution provides that –

“The President shall hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation for the purpose of -
(a) determining the general direction of domestic and foreign policies of the Government of the Federation;
(b) coordinating the activities of the President, the Vice-President and the Ministers of the Government of the Federation in the discharge of their executive responsibilities; and
(c) advising the President generally in the discharge of his executive functions .. ..
Section 144(5) explains that the reference to the “executive council of the Federation” in the above provisions is a reference to “the body of Ministers of the Government of the Federation, howsoever called, established by the President and charged with such responsibilities for the functions of government as the President may direct.

Following from the above, it is my view that the Federal Executive Council cannot advise an absentee President. Most certainly, the FEC cannot legally carry on the government of the country in the absence of the President. Such government would be in direct violation of section 1(2) of the Constitution and would therefore be unconstitutional.

My final conclusion is that the Constitution of Nigeria has been knowingly subverted in fundamental essentials and that the Government of the Federation has been carried on illegally and unconstitutionally from the date President Musa Umaru Yar!Adua left Nigeria for Saudi Arabia.

The Duty of the National Assembly.

By virtue of section 52 (1) and (2) of the Constitution and their Oath of Allegiance and Oath of Office contained in the Seventh Schedule to the Constitution, every Senator and every member of the House of Representatives has a constitutional duty to “preserve, protect and defend the Constitution of the Federal Republic of Nigeria.” In doing so he swore to “discharge my duties to the best of my ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law, and always in the interest of the sovereignty, solidarity, well-being and prosperity of the Federal Republic of Nigeria.. ..”

The most important duty of the Legislators is the welfare of the people, the preservation of the nation from the anarchic situation that now exists. After all, as the Romans taught us, salus populi suprema lex (the safety/welfare of the people is the highest law).

In my opinion, the National Assembly can properly and constitutionally act under section 145 of the Constitution to swear-in a Vice-President as Acting President where an incumbent President is unable, or unwilling or otherwise fails to make a formal declaration as to his incapacity to discharge the functions of his office. The provision in section 145 that “Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office” means no more than that whenever the National Assembly is duly and properly informed that the President is “unable to discharge the functions of his office.” Suppose a President suddenly falls ill and is incapable to send the required written declaration. If the illness were to occur on a public occasion, then the National Assembly and, indeed, the whole nation would be duly informed and apprised of the President’s temporary incapacity. In such a situation it would be absurd to hold that the nation’s constitution becomes inoperative. In my opinion, the Houses of the National Assembly can, in such a situation, pass a Resolution to the effect that they are truly and sufficiently informed of the President’s state of health necessitating the swearing in of the Vice-President as Acting President.

AUTHOR: Hon Justice O Oluwadare Aguda

Copyright O. Oluwadare Aguda
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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