The Place of the President and Vice President Under the Nigerian and American Constitutions (1) – Mike Ozekhome, SAN

Mike Ozekhome SAN


 This issue has become quite topical and urgent because of the present rumblings (or, may I say, loud silence) regarding the cold relationship between Vice – President Yemi Osibanjo, SAN, and his boss, the President, Muhammadu Buhari, GCFR. Most Nigerians point accusing fingers at a very powerful, but “faceless” “cabal” within the presidency, which even Aisha Buhari, the president’s wife, had also specifically and openly complained about in the public. Is the Vice President a disposable “spare tyre”, as many prefers to refer to Vice Presidents or Deputy Governors, or is he an indispensable gum that inexorably binds the government together? We shall discover answers to these nagging questions in the course of our luminous discourse of this vexed national issue.


Ordinarily, the word “vice” means corruption, iniquity, debauchery, depravity, perversion, debasement, degeneracy, lechery, immorality, indecency, etc. however, “vice”, when used as the next person to a leader or Head of a group means Deputy, backup, replacement, second-in-command, regent, substitute, lieutenant and subordinate. It is in this position of “Vice President” is used.


The Vice President of the United States, also known as VPOTUS or Veep, is an important position in the executive branch of the federal government in America. The Vice President is probably best known as being “a heartbeat away from the presidency”, meaning that if a sitting President dies or is impeached, or is indisposed, the Vice President takes over.

Hitherto, where the office of the Vice-President became vacant by reason of death, resignation or other permanent incapacity, it would remain so vacant until the next elections were held and a new President and Vice-President were sworn in for a fresh term of office. However, since the coming into force of the Twenty-Fifth Amendment (which was ratified in 1967), where the office of Vice-President becomes vacant, the POTUS has power to appoint a new Vice-President, subject to the ratification by the Congress.

Unlike his Nigerian counterpart, the VPOTUS empowered by the U.S. Constitution to perform far more expansive duties and responsibilities – extending beyond even Executive arm of Government.

The Constitution of America does not expressly assign the Vice Presidency to any one branch, causing a dispute among scholars about which branch of government the office belongs to: whether the executive branch or the legislative branch.

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However, constitutionally, the main responsibility of the Vice President is the role of President of the Senate. Under Article 1 Section 3 of the US constitution:

“The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

The Vice President of America as the Senate President

As head of the Upper House of congress, the Vice President votes on legislation or other motions only when Senators are deadlocked 50-50. This has occurred 243 times and involved 35 different Vice Presidents. Whilst in the past the Vice President would actively preside over Senate proceedings, nowadays it is customary that they only get involved in order to break a tie.

In practice, the number of times vice presidents have exercised this right has varied greatly. John C. Calhoun holds the record at 31 votes, followed closely by John Adams with 29.During his first year in office (through January 24, 2018), Mike Pence cast eight tie breaking votes; his predecessor, Joe Biden, did not cast any during his eight years in office.

As the framers of the Constitution anticipated that the vice president would not always be available to fulfil this responsibility, the Constitution provides that the Senate may elect a president pro tempore (or “president for a time“) in order to maintain the proper ordering of the legislative process. In practice, since the early 20th century, the president of the Senate rarely presides, nor does the President pro tempore. Instead, the president pro tempore regularly delegates the task to other Senate members. Rule XIX, which governs debate, does not authorize the vice president to participate in debate, and grants only to members of the Senate (and, upon appropriate notice, former presidents of the United States) the privilege of addressing the Senate, without granting a similar privilege to the sitting vice president. Thus, Time magazine wrote in 1925, during the tenure of Vice President Charles G. Dawes, “once in four years the Vice President can make a little speech, and then he is done. For four years he then has to sit in the seat of the silent, attending to speeches ponderous or otherwise, of deliberation or humor.”

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As president of the Senate he may also preside over most of the impeachment trials of federal officers. However, whenever the president of the United States is on trial, the Constitution requires that the Chief Justice of the United States must preside. This stipulation was designed to avoid the possible conflict of interest in having the vice president preside over the trial for the removal of the one official standing between him and the presidency. Curiously, the framers made no mention of who would preside in the instance where the vice president is the officer impeached; thus leaving a loophole whereby a vice president, as president of the Senate, could preside at their own impeachment trial.


The Twelfth Amendment, like the superseded Article II clause, provides that the Vice President, in his capacity as President of the Senate, also presides over counting and presentation of the votes of the Electoral College. This process occurs during a joint session of Congress held, as prescribed by federal statute, on January 6 of the year following the presidential election. It will next take place following the 2020 presidential election, on January 6, 2021 (unless Congress sets a different date by law). In this capacity, four Vice Presidents have been able to announce their own election to the presidency: John AdamsThomas JeffersonMartin Van Buren, and George H. W. Bush. Conversely, John C. Breckinridge, in 1861. Richard Nixon, in 1961, and Al Gore, in 2001, all had to announce their opponent’s election. In 1969, Vice President Hubert Humphrey would have done so as well, following his 1968 loss to Richard Nixon; however, on the date of the Congressional joint session, Humphrey was in Norway attending the funeral of Trygve Lie, the first elected Secretary-General of the United Nations. The president pro tempore presided in his absence.

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On February 8, 1933, Vice President Charles Curtis announced the election of his successor, House Speaker John Nance Garner, while Garner was seated next to him on the House dais.



Article II, Section 1, Clause 6 stipulates that the vice president takes over the “powers and duties” of the presidency in the event of a president’s removal, death, resignation, or inability. Even so, it does not clearly state whether the vice president became President of the United States or simply acted as president in a case of succession. Debate records from the 1787 Constitutional Convention, along with various participants’ later writings on the subject, show that the framers of the Constitution intended that the vice president would temporarily exercise the powers and duties of the office in the event of a president’s death, disability or removal, but not actually become President of the United States in their own right.


This understanding was first tested in 1841, following the death of President William Henry Harrison, only 31 days into his term. Harrison’s vice president, John Tyler, asserted that he had succeeded to the office of president, not just to its powers and duties. He took the presidential oath of office, and declined to acknowledge documents referring to him as “Acting President.” Although some in Congress denounced Tyler’s claim as a violation of the Constitution, he adhered to his position. Tyler’s view ultimately prevailed when the Senate and House voted to acknowledge him as president, setting a momentous precedent for an orderly transfer of presidential power following a president’s death, one made explicit by Section 1 of the Twenty-fifth Amendment in 1967. In total, nine vice presidents have succeeded to the presidency intra-term. In addition to Tyler, they are Millard FillmoreAndrew JohnsonChester A. ArthurTheodore RooseveltCalvin CoolidgeHarry S. TrumanLyndon B. Johnson, and Gerald Ford.

(To be continued).


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