The Place of the President and Vice President Under the Nigerian and American Constitutions (2) Mike Ozekhome, SAN

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Mike Ozekhome SAN

INTRODUCTION

 It was John Tyler that said this Constitution was not made for a day, nor is it composed of such flexible materials as to be warped to the purposes of a casually ascendant influence. On this note, we shall continue our discourse having started with the position of the Vice President in Nigeria, which is provided in section 141 of the 1999 Constitution (as altered).

THE VICE PRESIDENT IN NIGERIA (continues)

To further give weight to the office of the Vice President, the Constitution further provides in section 142 as follows:

142 (1) In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid.

(2) The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President shall apply in relation to the office of Vice-President as if references to President were references to Vice-President.

It can, therefore, be argued that the Vice-President is NOT a “spare President”, because the Constitution has specifically assigned definite functions to him.

The Court of Appeal of Nigeria had an opportunity in the case of Atiku Abubakar v. Attorney-General, Fed. (2007) 3 NWLR (Pt 1022) 601 at 642, to give a thorough explanation as to the status of a Vice President. The Court held Per Abdullahi, PCA as follows:

“The President and the Vice President of the Federal Republic of Nigeria are jointly elected at a general election and the relationship between them is not that of a master and servant. In other words, the vice president is not an employee of the President or of the political party on whose platform they are both elected. In the instant case, the plaintiff not being an employee of the President or the political party on whose platform he was elected, he cannot be impliedly or constructively removed by either of them. “The Vice president, not being an employee cannot be impliedly or constructively removed. Assuming he qualifies as an employee, without, for a moment so deciding, his employer would most manifestly be the people of Nigeria, who elected him to the office, acting through their representatives in the national assembly but certainly not the President of the Federal republic of Nigeria nor the sponsoring political party. This assumption is based on the cliche that the power to hire is the power to fire embedded in Section 11 of the Interpretation Act. See Longe v. First Bank of Nigeria Plc (2005) ALL FWLR (Pt. 260) 65. In other words, this matter is a matter that falls squarely within the contemplation of Section 143 of the Constitution which expressly provides for the removal of the President and Vice President from office.”

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On the strength of the above judicial decision, it is submitted that the relationship between the President and Vice President, is not that of master and servant as each of them is a creation of the Constitution and neither employs the other.

Unlike the Ministers, the President cannot remove the Vice President. The process of removal of the President or the Vice President is provided for in section 143 of the Constitution. It is through the process of impeachment, which is to be conducted by the National Assembly as set out in that section. Section 143(10) of the Constitution specifically ousts interference of the court from the proceedings leading to the impeachment of the holders of the two offices.

Section 143(11) defines what would amount to “gross misconduct.” Section 143 of the Constitution provides as follows:

“143 (1) The President or Vice President may be removed from office in accordance with the provisions of this section.

(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the National Assembly –

(a) is presented to the President of the Senate;

(b) stating that the holder of the office of President or Vice President is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified.

the president of the Senate shall within seven days of the receipt of the notice cause a copy thereof to be served on the holder of the office and on each member of the National Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office to be served on each member of the National Assembly.

(3) Within fourteen days of the presentation of the notice to the President of the Senate (whether or not any statements was made by the holder of the office in reply to the allegation contained in the notice) each House of the National Assembly shall resolve by motion without any debate whether or not the allegation shall be investigated.

(4) A motion of the National Assembly that the allegation be investigated shall not be declared as having been passed, unless it is supported by the votes of not less than two-thirds majority of all the members of each House of the National Assembly.

(5) Within seven days of the passing of a motion under the foregoing provisions, the Chief Justice of Nigeria shall at the request of the President of the Senate appoint a Panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section.

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(6) The holder of an office whose conduct is being investigated under the section shall have the right to defend himself in person and be represented before the Panel by legal practitioners of his own choice.

(7) A Panel appointed under this section shall –

(a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the National Assembly; and

(b) Within three months of its appointment report its findings to each House of the National Assembly; and

(8) Where the Panel reports to each House of the National Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.

(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report, each House of the National Assembly shall consider the report, and if by a resolution of each House the National Assembly supported by not less than two-thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.

(10) No proceedings or determination of the Panel or of the National Assembly or any matter relating thereto shall be entertained or questioned in any court.

(11) In this section-

“gross misconduct” means grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amount in the opinion of the National Assembly to gross misconduct.”

It is clear from the above provisions of section 143 of the Constitution that the process leading to the removal of the President or Vice President is entirely that of the National Assembly. While section 143 (10) ousts the court from entertaining or questioning the proceedings taken under the section, section 143 (11) defines what would constitute “gross misconduct” for which either the President or Vice President could be removed under the section. On the other hand, Section 144 provides for instances in which the President or Vice President would cease to hold office; while section 145 sets out instances when the Vice President could act as President. Section 146 (1) on the other hand, provides that the Vice President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason.

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On other hand, section 146 (3) provides for what should happen in respect of the Vice President’s office becoming vacant. The sub-section provides as follows:

146(3) where the office of the Vice President becomes vacant

(a) by reason of death or resignation, impeachment, permanent incapacity or removal in-accordance with section 143 or 144 of this Constitution;

(b) by his assumption of the office of President in accordance with subsection (1) of this section; or

(c) for any other reason, the President shall nominate and, with the approval of each house of the National Assembly, appoint a new Vice President.’

As I have already stated above, the office of the Vice President is created by the Constitution. His appointment and removal from office are also provided for in the Constitution. Although the President had to nominate him as at the time he wanted to contest for the office of the President, and the Constitution also requires that the person nominated should be from the same political party as the President, I believe that the Constitution assumes that the President and the Vice President should maintain the same relationship throughout their term in office.

SPECIFIC DUTIES OF THE VICE PRESIDENT IN NIGERIA

Though, it can be contended that the role of the Vice-President is not sufficiently defined in the Constitution because it vests the totality of the executive powers of the Federation on the President, there are still some specific responsibilities assigned to the Vice-President under the Constitution.

Some specific responsibilities assigned to the Vice-President qua Vice-President in the 1999 Constitution includes being the agent of the President in his exercise of the executive powers conferred on him by the Constitution; responsibility for any business of the Government of the Federation, including the administration of any department of government previously assigned to him by the President; presiding over the meeting of the National Economic Council; to be the Deputy Chairman of the following Federal Councils established by section 153 of the 1999 Constitution, namely; the Council of State, the National Defence Council and the National Security Council.

The most significant responsibility of the Vice-President stipulated in the Constitution is without doubt that of succeeding the President if the office of the President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 or 144 of the 1999 Constitution. This provision of section 146(1) ensures that there is no vacuum in the leadership of the country should any of the circumstances enumerated under the subsection occur.

He can assume the Presidency only when the elected President is incapable of continuing in office as a result of any of the reasons therein enumerated.

(To be continued).

Part one here

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