Senate Position On Buhari’s Health Matter is Correct
Acting President: Unification of Offices of President and VP
In the instant scenario, the President transmitted a written declaration, citing both scenarios of vacation and temporary medical incapacity. The relevant recourse is therefore, to subsection (1). It is self executory by operation of law . The VP assumes the position of Acting President. The Constitution reserved exclusively the office of Acting President for a siting Vice President. That office is sui generis: it is not the same as that of President or Vice President . But it cannot coexist with Vice President and President . It's unified both in one single functionary once it's occupied . It is therefore, an extraordinary office, which appropriates and unifies the two offices at the same time, in one person. In that sense, an Acting President is far more powerful than a sitting substantive President. He acts without a deputy.
President's Misstatement That is why the misstatement in the President's letter referencing "coordinator "as the status of the Vice President when he is proceeding on vacation, is unknown to our Constitution. It's a surplussage in the letter . If no other , the qualification to exercise of power of Acting President in that letter is ultra vires . The Constitution made a complete provision for incident of assumption of office as Acting President. For that reason no executive administrative or legislative modifications ; embellishment or qualification to that express provision is permitted in law. AG ABIA v AG FEDERATION. In other words, the office of Acting President is neither by delegation or donation by the President to the Vice President . It is a vested office by the fiat and imprimatur of the Constitution itself . It is to be contrasted with performance of function of President by Vice President when the provision of section 145(1) has not been activated by the President .
To make this position clearer, we can contrast two recent instances - when President was on medical vacation in the UK earlier in this year ; and when he returned later and communicated that fact to the National Assembly leadership. The actions of Vice President before the President returned, was exercised qua his status as Acting President. In that regard, he signed a number of bills into law by assenting thereto. When on the other hand, the President upon his return from the last medical vacation, asked the Vice President to continue to hold for him; that was a legitimate case of delegation of Presidential power . To be valid however, it must be specific and not at large, or else it becomes an abdication of power, rather than delegation . It is for that reason, that it was usually on the morning of every Federal Executive Council meeting that the Vice President chaired, after receiving authority of the President to proceed.
However, from the moment the President made a fresh recourse to section 145(1) as happened last week, he loses albeit temporarily, the power to exercise or delegate his executive powers to any other functionary of government. He no longer possesses any such powers which stand frozen and merged in the office of Acting President, without any diminution or qualification save as may be stipulated by the Constitution itself . I am not aware of such derogation .
National Assembly's Role The President's role therefore, is limited to writing the declaration of his absence by reason of vacation or temporary incapacity. It is the acknowledgment of the letter by both the President of the Senate and Speaker of House of Representatives, that serve to activate the assumption of office of Acting President by the Vice President. While I am not aware that the Speaker has tabled the letter before the House, one is comforted that the law presumes that all the prerequisites for acting in a public office, have been satisfied when the occupier of the office so acts. Thence from, it is for those who contend the contrary, who have the burden of proof .
In this case, the Senate President's confirmation on the floor of the Senate, that he was in receipt of the letter, contents of which with relevant reference numbers was read to members (without more), validates the fact that we now have only an acting President.
The legislative history behind the amendment to section 145 of the Constitution, must never be taken for granted; in offering a construction of the section. The mischief sought to be cured by that section (previously addressed by a Dubious doctrine of necessity during the transition from President Yar Adua to Acting President Goodluck Jonathan in 2010), was to avoid lacunae in situating the locus for exercise of presidential power, when it is obvious and notoriously incontestable that, at any point in time, the President as the sovereign head and symbol of governmental power, is not de facto able to execute the office ; and to thus, prevent a temporary succession crisis, by expressly prescribing the manner of transmission of that power and the recipient of the power albeit in the interim, until the happening of some ascertainable future events. Those events are more elaborately set out under section 146 of the Constitution, dealing with events that constitute permanent vacancy in the office of President, such as death, resignation or removal or permanent incapacity.
In conclusion, my humble view is that, the office of Acting President in the context of section 145(1) of the Constitution is vested by operation on a Vice President - it is not delegated donated or liable to diminution by the President or Parliament once it vests until it is lawfully divested by a contra written declaration to be communicated to leadership of National Assembly by the President. Any limitations to the full exercise of the office by the Acting President once vested, is inconsistent with the Constitution and sounds in nullity. Being a surplussage however ; the 'blue pencil rule' of construction will save the declaration that is effectual in all material respects.
Abiodun Jelili Owonikoko, Senior Advocate of Nigeria