In his characteristic manner, the eminent constitutional lawyer Professor Ben Nwabueze in an article titled "The President's Vacation" published in the Guardian, 3rd February 2009, clinically sought to dissect the ongoing argument on whether the president has an obligation to inform the National Assembly before proceeding on leave and whether the Vice-President can execute the functions of the president with or without such information - proceeding on leave - being transmitted to the National Assembly. Professor Ben Nwabueze concluded that given the principle of co-equality between the executive and the legislative arm of government, that "he (the president) is not obliged to do so" however the Vice-President or another person cannot function on-behalf of the President without "such written declaration being transmitted to the National Assembly."
Professor Ben Nwabueze in his attempt to analyse Section 145 of the constitution, in my view, conflated different issues that must be dealt separately. His article left part of the story that needs to be told. It is quite obvious that the right of the President to go on vacation is not the issue, the President like any other civil-servant is entitled to some form of leave - annual, weekly or bi-annually. The President writing to seek permission from the National Assembly will violate the principle of co-equality as professor Ben Nwabueze rightly pointed out. In essence, this is not only applicable to the President, but to all elected officials. The equality of the National Assembly and the Presidency stems from the fact that their occupants were elected to such offices and not appointed. So there is an equality of office of all elected officers, though some Governors seek to abolish or choose when to conduct Local Government elections.
It then follows, as Professor Ben Nwabueze rightly pointed out, that following section 145 of the Nigerian constitution that the president does not write to seek permission - permission is only given from a superior to an inferior. However, it is wrong for Professor Ben Nwabueze to conclude that the President has no obligation to notify the National Assembly. Professor Ben reads the "whenever" of section 145 as a case of choice for the President, that is, "he may or may not." The problem stems from his allusion to the principle of co-equality. It should be noted that the operative principle here is not that of co-equality rather that of accountability and communication.
The President is obliged to inform the people who will discharge his functions during his off-days. The citizens ought to know who will discharge the functions of the President since the President in person will be on leave and not his functions. The functions of the President is so important to the state and the people that they cannot wait till the President as a person comes back, not to talk of a clear situation of global economic melt-down. The President is therefore accountable to the people and this accountability cannot be rendered without communication. As the Jurisprudent, Lon Fuller puts it "communication is more than a means of staying alive, it is a way of being alive." (Cf., The Morality of Law, Yale:Yale University Press, 1964, p.186). Communicating to the people about his functions is not only a means for the presidency, it is a way of the presidency.
It is based on this principle that the "whenever" that opened the wordings of section 145 should be read, not as when the President chooses, rather "as at" the time the President communicates to us. His communicating to us cannot be through an informal way, he cannot go to Dugbe Market or Ochanja or Eke-Ukwu Owerri or either by his spokesman, through the dailies or by way of orality. Officiality and the need for documentation requires him to write to the people officially. Now, the basic question to be asked is where is the office of the people, their headquarters? The people have no office, except the office of their representatives - the National Assembly. Following this line, Professor Ben Nwabueze was right to say that the announcement of the secretary of the federation or any other spokesman that the Vice-President becomes the acting President is null and void. Null and void since it fails the test of procedural due process.
The point of the whole argument is that the President cannot purport to be going or have gone on leave without informing the National Assembly. If he does so, he is playing AWOL and absconding from his job. Following this argument , Professor Ben Nwabueze engaged in a non-sequitor when he argued that "If, when going on vacation, he does not want the Vice-President to discharge the functions of his office as acting President because the two of them are in hostile or antagonistic relations, then, he should not transmit to the two presiding officers of the National Assembly the written declaration specified in section 145. He can give the kind of direction issued by Governor Ambrose Ali of Bendel State in 1981 but with the omission of the direction that the deputy governor was to represent him at functions at which he was expected to be present in his official capacity. The President can certainly issue a public announcement that he is taking a vacation, so long as the question of an acting President is not mentioned in the public announcement."
The question of acting-president does not arise in the whole argument since to quote the American President Barrack Obama "there can only be one president at a time" even if he is on leave or not. But he cannot be on leave without informing the National Assembly. A minor and unnecessary question that arises here is if the President can be on leave and direct another person that is not the Vice-president to discharge his functions? Professor Ben Nwabueze referring to the earlier 1979 constitution argues that "It is inconceivable that the section could have intended to make it obligatory for the President, when going on vacation, to allow the functions of his office to be discharged in an acting capacity by a Vice-President who is disloyal, antagonistic, a bitter enemy or who is otherwise in hostile relations with him,â€¦ That would be like asking the President to commit political suicide by putting himself and his government in the hands of an enemy."
It is worthy to note that human relationship is fraught with frictions and the president and Vice-President can have a field day in it, but in the eyes of the constitution and law, such antagonism does not count. The President and the Vice-President were both elected on the same ticket based on their unitary vision for the state and promised fidelity to the constitution. This is the only relationship that exists between them in the eyes of the people and the constitution. Infidelity on the part of one - either the President or the Vice-President is what can hinder one from performing a duty under law. And such infidelity must be taken up immediately by the National Assembly as grounds for impeachment. This means that the President does not have the luxury of doing anything contrary to the constitution just because he hates how the Vice-President's nose is or how fat his tummy is. Political suicide is immaterial since from the day of swearing in, politics stops and governance follows. The requirement of governance supersedes that of politics. Also, government cannot be viewed as a personal property of the President rather as a temporary mandate from the people. Professor Ben Nwabueze is therefore wrong to make such assertion that gives the president the freedom to notify or not to notify the National Assembly just because of antagonism.
In conclusion, the president is obliged to inform us, through the National Assembly, that he is going on leave, not necessarily to seek permission because that has already been given in advance, rather to inform us of who will execute his functions in his absence thereby bringing to bear the inherent force of section 145. It is really a pity that our leaders do not know the principles of democracy. In UMYA's case, the question is does he really care? After all we did not elect him.