Also, the debate forecloses the effort to get the appointment of the Acting Chief Justice of Nigeria (CJN), Walter Onnoghen confirmed by the Senate, since there is no one, ‘legally’ speaking, that would forward his name to the upper chamber.
Section 145 of the 1999 Constitution says: “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.”
Lagos lawyer and human rights activist, Ebun Olu-Adegboruwa, says that since the president did not return on February 6 as he promised and the letter he ‘purportedly’ transmitted to the National Assembly informing of his extended vacation on ground of ill health has not been read on the floor of the Senate to form its votes and proceedings, the legal capacity of Osinbajo ended midnight February 6, 2017.
He said: “That ‘letter’ has not been seen by anyone, in order to determine its authenticity and its real author. When travelling in January, President Buhari personally transmitted a letter to the National Assembly, notifying them of a specific 10-day vacation, which ended on February 6, 2017. This letter was duly read and became part and parcel of the votes and proceedings of the National Assembly.
“The new ‘letter’ has not been read on the floors of either chambers of the National Assembly, to make it part of its votes and proceedings. Somehow, as if acting out a clever script, the Senate had hurriedly adjourned its sitting to February 24, ever before the ‘letter’ for an extended vacation arrived. So legally, the ‘letter’ is cooling somewhere in the National Assembly, just another letter, without any force of law. A letter transmitted to the National Assembly must be read at the plenary session to become binding.”
According to the lawyer, the implication is that there is neither president nor acting president at the moment, and since the acting president did not forward the name of Justice Onnoghen to the Senate before February 6, there is no one to do so anymore, even if the National Judicial Council (NJC) re-nominates him for the office in compliance with section 231(5) of the 1999 constitution.
“The tenure of the acting CJN will lapse on February 10, 2017. As of this night, the NJC has not met to consider recommending Onnoghen for renewal as acting CJN. The NJC cannot do this after February 6, 2017, as there will be no president or acting president, to receive such recommendation,” Adegboruwa insisted.
If this remains the true state of affairs, it means until the president resumes or the Senate breaks off from its vacation on February 24 to read the president’s second letter transmitting power to his deputy, the country shall run without either acting or substantive head of state. Also, at the expiration of the acting tenure of Justice Onnoghen on February 10, the judiciary shall remain without a clear leadership, leaving the legislature as the only legally functional of the three arms of government.
But the former Attorney General and Commissioner for Justice in Abia State, Awa Kalu (SAN) disagreed. According to him, there is no vacuum because the tenure of the acting president still subsists.
Kalu said: “Only the Senate president or his spokesman duly recognised by the Senate can comment that they don’t have an authentic letter from the president. The Senate is an institution which has an office and secretariat. It is not a house where you can lock and go away. The information we have is that the president has extended his vacation and has informed the Senate accordingly. So, I don’t have a contrary opinion. Section 145 of the 1999 constitution does not say it must be read on the floor of the house.”
Also, former president of the Nigeria Bar Association (NBA), Mr. Austin Alegeh (SAN) agreed with Kalu. He said the president had extended the time he would be out of the country and by implication had extended the time his vice would act.
“What the law requires is a notification that he is not going to be around and that somebody would be acting on his behalf. And once that letter has been transmitted, he has complied with the law,” he stated.
Lagos lawyer, Festus Keyamo, in the same vein maintained that the letter doesn’t have to be read to take effect. “It doesn’t need the approval of the Senate. All the law requires is that he transmits a letter to the Senate and once he does that, it is alright,” Keyamo declared.
Meanwhile, the Senate has confirmed that the letter through which Buhari extended his leave is in the custody of the Senate President Bukola Saraki.
At a press conference in Abuja yesterday, the spokesman of the upper chamber, Aliu Saabi Abdullahi said the letter was in compliance with the dictates of the law and the constitution of Nigeria.
But a question on who signed the letter threw Abdullahi into a fit of anger as he condemned what he called an insinuation that the Senate was not truthful about its declaration that the letter was in its custody.
He said: “With due respect, I found the last comment very uncomplimentary to the president. I have no apology for that. If he’s there, can’t he write a letter and forward it to the Senate by DHL?
“If at this level we cannot trust ourselves to do certain basic things, then why should I trust you? I think it’s important we give ourselves some level of respect and trust. We are telling you a letter has been signed and sent to us. Are you saying that the Senate is not an institution of the Federal Republic of Nigeria? I am speaking to you here on behalf of the Senate of the Federal Republic of Nigeria.
“This is not the first letter Mr. President will be communicating to us. Are you saying that if we received a letter from Mr. President and we say we received a letter from him we don’t know what we are saying?”
When asked about the return date of the president, Abdullahi said: “The letter didn’t say that the leave is indefinite because the word ‘indefinite’ is taking the matter out of context, but then the president said he’s extending the leave beyond the 10 days he had asked for.”
The Senate spokesman said the decision on when President Buhari would return to Nigeria “is not in my hands but in the hands of the doctors. That is why the president is not giving us a date.”
On when the letter was received, Abdullahi said: “The letter was received by Saraki and I was briefed today (Tuesday). It was either yesterday or today they received it.”
Also yesterday, Minister of Information and Culture, Lai Mohammed, said there was no basis for comparison between the on-going situation over Buhari’s leave and what took place when the late President Umaru Musa Yar’Adua was ill and flown abroad for treatment. He insisted that Buhari was well.
Mohammed was reacting to a trending report on social media where a comment he made in December 2009 has become the butt of comments and jokes.
“Yes, I issued a statement on the 22nd of December (2009), but the circumstances are vastly different. Mr. President is not ill; Mr. President did not go for treatment; Mr. President went on leave and did the proper thing according to the constitution.”
In a statement issued as National Publicity Secretary of the Action Congress (AC), Alhaji Lai Mohammed had said the situation then where ministers and aides of the president gave out uncoordinated information on his health, was doing more harm than good. He urged that the citizens should be given a daily update on the health of Yar’Adua.