The symbolic event of Friday, May 11, 2017, had occupied my mind for some time: the day multitudes of Nigerian political heavyweights and pretenders, with their allies in the business world, assembled in Minna, the capital of Niger State, under the subterfuge of a wedding — the wedding of the second daughter of General Ibrahim Badamasi Babangida (IBB), who ruled Nigeria as a military dictator between August 27, 1985, and August 26, 1993. Egged on by the rumours in the streets, I had considered lifting the veil off that Minna Sanhedrin — the gathering of men who believe that God has given them full authority over the people of Nigeria, who are commanded by God to obey every order they give and every wish they express — and exposing the true motives of the guests of that wedding. Of course, Auwal Abdullahi, the Sarkin Sudan Gombe, a successful businessman, needed not the image and standing of IBB to attract the crème de la crème of the society to his function. I am certain that he and his close friends must have accounted for some of the 30 or so private jets that were recorded to have landed in Minna for the wedding. But many believe that the actual purpose of that assembly was political, especially as it was preceded by a closed-door meeting at IBB’s Hilltop home by Generals Olusegun Obasanjo, Abdulsalami Abubakar and IBB himself — all past heads of state. There is an account that suggests that the political class — particularly desperate wannabes, unsettled by President Muhammadu Buhari’s health challenges, are already working on political permutations. Besides those angling to be Vice-President to Prof. Yemi Osinbajo, some are entertaining the odious and ungodly thought that Osinbajo could be forced to resign.
I decided to jettison the idea of writing about that Sanhedrin for two reasons. First, as I have said in an earlier article, it is never above or outside the infinite and absolute powers of God who created and gave power to President Buhari to restore him to his full health and guide him through his tenure and even beyond. He may as well have miracles for him to shame all the greedy vultures who want him dead. It is also not impossible for those who are wishing him dead to die before him. Again, as I said in an earlier piece, many across the continents have died of mere headaches, and many have slept and never woke up. The ways of God are beyond us and beyond our comprehension. Secondly, I feel it is more important and more beneficial for me to intervene in two issues that have been agitating the minds of commentators and legal experts. The first is whether or not Osinbajo is the Acting President of the Federal Republic of Nigeria or a Coordinator of Government business. The second is whether Osinbajo’s position that the President does not require the Senate confirmation of Magu’s appointment is founded or tenable.
While returning to London for a scheduled medical follow-up with his doctors, President Buhari reportedly transmitted a written declaration to that effect to the President of the Senate and the Speaker of the House of Representatives in compliance with section 145 of the 1999 Constitution of the Federal Republic of Nigeria. The declaration transmitted to the Senate is contained in a letter that reads as follows: “In compliance with Section 145(1) of the 1999 Constitution (as amended), I wish to inform the Distinguished Senate that I will be away for a scheduled medical follow-up with my doctors in London. The length of my stay will be determined by the doctors’ advice. While I am away, the Vice President will coordinate the activities of the Government.”(Emphasis mine).
The controversy generated by the last sentence of the above reference was kick-started by the Peoples’ Democratic Party’s 59-year-old Senator Mao Ohuabunwa, representing Abia North Federal Constituency in the Senate of the Federal Republic of Nigeria. The crux of Ohaubunwa’s query, which is, by the way, founded and commendable, is that there is no position of Coordinating President in the constitution, and that Osinbajo should have been duly addressed as Acting President. My guess is that the framers of the declaration were trying to be clever by half, as Section 145 of the 1999 Constitution (the Constitution) prescribes as follows:
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.
Unlike the first declaration that was premised on the President’s vacation, this time around, it could only be anchored on his otherwise inability to discharge the functions of his office. The authors needlessly tried to avoid the admission that the President would be out of the country for an indefinite time and, accordingly, would not be able to discharge the functions of his office. Common sense entails that Mr President cannot be outside the country for a considerable length of time and at the same time be able to discharge the functions of his office. In any case, Nigerians have come to terms with Mr President’s situation and are, with the exception of a mischievous few, praying for his quick recovery. Many have, in fact, advised him to take a long rest to fast track his recuperation.
I, therefore, do not see any sense in the hesitation to describe Professor Yemi Osinbajo as Acting President; and I firmly believe that President Buhari has no misgivings about Osinbajo’s acting capacity or loyalty.
Public authorities and functionaries need to guard against the fruitless, ungainful attempt to be innovative or creative about constitutional provisions. The Constitution forbids the transgression of any of its provisions by imposing or commanding absolute obedience and demanding that all or any claim to the exercise of lawful authority must rest with — or be traceable to — a power allocated by the Constitution, and can come from no other source. Section 145 is a command, and it imposes an absolute duty on the President to transmit a declaration to the leadership of the National Assembly about his vacation or inability to discharge the functions of his office.
The Constitution allows the President two instances in which he can temporarily cede his functions of his office or be excused from performing the functions of his office. The two instances are a vacation or inability to perform the functions of his office. As I have indicated, being outside the shores of Nigeria on account of medical follow-up or advice is accommodated in the limb of inability to perform the functions of his office. It is instructive to note that inability to discharge the functions of his office is remarkably different from incapability to perform the functions of the office envisaged in section 144 of the Constitution. There is, therefore, no basis to shy away from using the expression in the declaration transmitted to the National Assembly.
It is also noteworthy that it is not the form or content of the declaration that makes the Vice President an Acting President. It is the transmission that makes him an Acting President. Professor Osinbajo became Nigeria’s Acting President the moment that declaration or information was transmitted to the President of the Senate and Speaker of the House of Representatives; that is, the moment the declaration was received by the President of the Senate and the Speaker of the House of Representatives. It is, therefore, preposterous for anyone to argue that Osinbajo’s acting capacity can be challenged in court on account of the form or content of the letter transmitted to the National Assembly. With no apology to anyone, I declare that Prof Yemi Osinbajo is the Acting President of the Federal Republic of Nigeria, and until President Buhari transmits to the National Assembly a written declaration to the contrary, the Vice-President shall perform the functions of the President as Acting President.
My intervention on the second issue was provoked by Chris Akiri, whom the Guardian of Monday, May 15, 2015, described as a Lagos-based lawyer. In his article titled “Osinbajo’s interpretation of Section 171 of the constitution”, Akiri made some conclusions that epitomize the obfuscation of the issue of whether or not the appointment of Ibrahim Magu by Mr President as the Chairman of the Economic and Financial Crimes Commission (EFCC) requires the confirmation of the Senate by persons who pretend to be constitutional experts. Akiri’s first conclusion that requires interrogation is that since Section 171 does not specifically mention the EFCC, “it is an anathema to smuggle any extraneous matter into the Constitution, the grand norm of the Nigerian legal system.” While I agree with the proposition that if the Supreme Court holds that the EFCC is not an extra-ministerial department, the foundation of Prof Osinbajo’s claim may be weakened, I do not agree with Akiri’s simplistic distinguishment of the EFCC from an extra-ministerial department.
The foundation of Section 171 is Section 5(1)of the Constitution which provides as follows: “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 (b) shall extend to the execution and maintenance of this Constitution all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.”
By the tenor of Section 5(1) of the Constitution, no body or authority can exercise executive powers independent of the President as all executive bodies and authorities exercise executive functions for and on behalf of the President. If the Constitution had envisaged a fourth arm of Government to share executive powers of the President, it would have made it clear.
On the argument that the appointment of Ibrahim Magu as Chairman of the EFCC is premised on the tenor of Section 171 of the Constitution; it is pertinent to note that after vesting in the President the power to appoint persons to serve or act as:
- Secretary to the Government of the Federation;
- Head of the Civil Service of the Federation;
- Ambassador, High Commissioner or other Principal Representative of Nigeria abroad;
- Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and
- any office on the personal staff of the President, that section went ahead to specify or isolate the appointments that require the confirmation of the Senate. In constitutional law and practice, any law made by the National Assembly that is inconsistent with Sections 5 and 171, or any other provision of the Constitution for that matter, shall be null and void to the extent of its inconsistency.This principle of the supremacy of the Constitution is clearly embedded in Section 1 of the 1999 Constitution. Section 1 of the 1999 Constitution of the Federal Republic of Nigeria that deals with the supremacy of the Constitution provides that:
- This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
- 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.
- If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
Section 1 of the Constitution clearly and unequivocally confers the highest authority in Nigeria’s legal system on the Constitution (see MARWA & ORS. v. NYAKO & ORS: [2012] LPELR-7837[SC]. The section subordinates all authorities and persons, including the organs of Government, to the Constitution. The appellate courts have, in many Constitutional cases, interpreted Section 1 of the Constitution to also mean that all the actions of the Government of Nigeria are governed by the Constitution, and it is the Constitution as the organic law of the country that declares in a formal, corporate and binding principle the rights, liberties, powers and responsibilities of the people, both the government and the governed (see A.G. Abia State v. A.G. Federation [2002] 6 NWLR Pt. 763 Page 264 [No.2]; Federal Republic of Nigeria v. Ifegwu [2003] 15 NWLR Pt. 842 page113; Nafiu Rabiu v. State [1980] 8-11 SC 130: Balewa v. Doherty [1963] 2 SCNLR 155).
Section 1(3) of the Constitution curtails the lawmaking freedom of the National Assembly by ceding it to the requirements and prescriptions of the Constitution. If any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void (see OBAYUWANA v. GOVERNOR, BENDEL STATE & ANOR [1982] 12 S.C. [REPRINT] 67; [1982] LPELR-2160[SC]; F.R.N. v. Osahon [2006] 5 NWLR [Pt. 973] 361; [2006] 2 S.C. [Pt. II] 1)
The Constitution forbids the transgression of any of its provisions by imposing or commanding absolute obedience (see EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS: [2016] LPELR-40053[SC]), and demanding that all or any claim to the exercise of lawful authority must rest with or be traceable to a power allocated by the Constitution, and can come from no other source (see Abacha v. Fawehinmi [2000] 6 NWLR [pt.660] 228; P.D.P. v. C.P.C. [2011] 17 NWLR [Pt. 1277] 485 Per KEKERE-EKUN, J.S.C. [P. 109, Paras. A-D]; SARAKI v. FRN CITATION: [2016] LPELR-40013[SC]. See INEC v. Musa (2003) 3 NWLR (Pt.806)72 where the Supreme Court adumbrated on the supremacy of the Constitution in the following words:
“…the acknowledged supremacy of the Constitution and by which the validity of the impugned provisions will be tested. First, all powers, legislative, executive and judicial, must ultimately be traced to the Constitution. Secondly, the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Where it is so exercised it is invalid to the extent of such inconsistency. Thirdly, where the Constitution has enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution had enacted must show that it has derived the legislative authority to do so from the Constitution. Fourthly, where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those Conditions in any way, directly or indirectly, unless, of course, the Constitution itself as an attribute of its supremacy expressly so authorised.” Per AYOOLA, J.S.C. (Pp.35-36, Paras. C-A)
Constitutional supremacy does not only entail the lower ranking of the legislator and its laws under Section 1(3) but also concerns the structure of the Nigerian state. 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. In MARWA & ORS. v. NYAKO & ORSCITATION: (2012) LPELR-7837(SC)(CON), the Supreme Court emphasized this point when it said:
This Court had given recognition to this supremacy and had expatiated on the Constitution through various judgments in its interpretative jurisdiction. The Constitution is described as the grundnorm and the fundamental law of the land. All other legislations in this country take their hierarchy from the provisions of the Constitution. It is not a mere common legal document. It is an organic instrument which confers powers and also creates rights and limitations. It regulates the affairs of the nation-state and defines the powers of the different components of government as well as regulating the relationship between the citizens and the state. Once the powers, rights and limitations under the constitution are identified as having been created, their existence cannot be disputed in a court of law.
But the extent and implications may be sought to be interpreted and explained by the court. The provisions of the constitution take precedence over any law enacted by the National Assembly even though the National Assembly has the power to amend the constitution itself. A-G Ondo State v. A-G Federation (2002) 1 NWLR (Pt.772) pg.222.A-G Abia State v. A-G Federation (2002) 6 NWLR (Pt.763) pg.204.Abacha v. Fawehinmi (2000) 4 SC (pt.11) pg.1.Balonwu v. Gov. Anambra State (2009) 18 NWLR (Pt.1172) pg.13.” Per ADEKEYE, J.S.C.(Pp. 123-124, paras. E-G).
The consistency of Section 2(3) of the EFCC (Establishment) Act can also be tested or interrogated by considering the fact that while section 171 of the Constitution confers unfettered rights and/or privilege to Mr President to appoint the heads of extra-ministerial departments of the Federation howsoever designated, Section 2(3) of the EFCC Act is subjecting that right and/or privilege to the confirmation of the Senate. Even though Mr President can waive that right and/or privilege, the fact still remains that Section 2(3) is contradictory, incompatible, conflicting and not capable of being put together with Section 171 of the Constitution.
Akiri’s reasoning on Sections 153 and 154 of the Constitution is very worrisome. It also betrays a misunderstanding of the principle of covering the field. Section 153 established 14 Executive bodies and subjects the appointments of the Chairmen and members of 11 of those bodies to the confirmation of the Senate under Section 154. That does not take away from the argument that the Constitution has vested in the President the power to appoint Heads of Extra-Ministerial Departments without the confirmation of the Senate. The Constitution has in its own wisdom listed the appointments that are subject to the confirmation of Senate. It is a well-settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expressio unius est exclusio alterius. This is, that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue (see Udoh v. O.H.M.B. [1993] NWLR [Pt.304]139).
The position of Prof Osinbajo that Magu’s appointment is not subject to Senate confirmation cannot, therefore, be said to be a recipe for authoritarianism as claimed by Akiri. As I have stated, that position can only be faulted if the Supreme Court holds that the EFCC is not an extra-ministerial department.
