Lawyer Queries The Legality Of Buhari Not Handing Over Power To Osibanjo In His Absence

A lagos based lawyer, Mr. K. K. Ajiboye has taken a swipe against the assertion of Buhari Media Aid, Mr. Garba Shehu that the failure of his boss to hand over power to Osibanjo is as a result of constitutional provision, allowing  such practice to prevail.

But the senior lawyer in an article pen below beg to differ from such unrefined, illegal; and insensitive assertion from a government spokesman who ought to know.

See his views below:

Does the President needto wait until 21 days before he is obliged to transmit power to his Vice whenever he goes on vacation?
In this note, I will attempt to xtray the constitutional provisions on this national issue which has caused brohuha and outrages among Nigerians.
On Tuesday, 30th January, 2021 President Muhammadu Buhari travelled to the United Kingdom for a “routine medical check up “. Expectedly, the news generated controversies and outrages. Even within legal family, there were cacophonies of opinions, as to the illegality and the otherwise of the President action.
By virtue of Section 145 of the 1999 Constitution of the Federal Republic of Nigeria 2011 (as amended) , the President is under constitutional duty and obligation to always transmit power WHENEVER he embarks on medical vacation or any form of vacation whatsoever.
Section 145 (1) and (2) provides thus :
” (1) WHENEVER the President is proceeding
on vacation or is otherwise unable to disch-
arge the functions of his office, he SHALL
transmit a written declaration to the Presi-
dent of the Senate and the Speaker of the
House of Representatives to the effect, and
until he transmits to them a written decla-
ration to the contrary, the Vice President
shall perform the functions of the Presid-
ent as Acting President ”
“(2) In the event that the President is unable
or fails to transmit the written declaration
mentioned in subsection (1) of this sect-
ion within 21 days, the National Assembly
shall, by a resolution made a simple majo-
ority of the vote of each House of Nation-
al Assembly, mandate the Vice President
to perform the functions of the office of
the President as Acting President until the
transmits a letter to the President of Sen-
ate and the Speaker of the House of Rep-
sentative that he is now available to resu-
me his functions as President ”
From the above constitutional provisions its wordings are clear and unambiguous. It does not require any aid for interpretation. In SKYE BANK VS IWU (2017) LPELR-42595(SC) the Supreme Court per Kekere Ekun JSC held that “the general rule of interpretation of constitutional provisions is that where words used are clear and ambiguous, they must be given a literal interpretation, i. e they must be given their ordinary and grammatical meaning”.
The Longman Dictionary of Contemporary English (7th) defines “whenever “as every time that a particular thing happens”
Going by literal interpretation of Section 145 stated hereof, the President is under constitutional compulsion to transmit power to his Vice whenever is on medical vacation or any form of vacation. It is sheer wrong conception of law by the President’ s spoke person, Malls Garba Shehu that the President is not constitutional obliged to transmit power whenever he embarks on vacation until after 21 days. In clear term, expiration of 21 days is not the yardstick or the condition precedent before the President can transmit power to his his Vice. Subsection (2) is a rider to the effect that, failure of the President to comply with the subsection (1) within 21 days the National Assembly shall by resolution of simple majority manadate the Vice President to perform the functions of the office of the President. In Military Governor and Others Vs Ojukwu and Another (1986) LPELR -3186(SC), the Supreme Court emphasized the need for the government to conduct itself within the precinct of the law and the constitution and that is the only way constitutional democracy can work smoothly and effectively.
A President who took an Oath under the 7th Schedule of the Constitution to defend and respect the Constitution should not be caught making exculpatory rhetorics in defence of shameful constitutional abuses and Executive lawlessness.
The pertinent question crying for an answer is is that if the President can transmit power to the Vice President when he embarked on 10 days vacation in 2017,what stops him from doing the same thing? What has changed between 2017 and 2021?
In conclusion, our office political holders especially the Executive arm of the government should learn how to respect the Constitution. It also behoves on those who surround Mr. President to always tell him the truth and advise him accordingly. This Executive brigandage and lawlessness should stop forthwith.