The Place of the President and Vice President Under the Nigerian and American Constitutions (3) Mike Ozekhome, SAN

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Mike Ozekhome SAN

INTRODUCTION

In parts 1 and 2 of this write-up, I strongly discussed the importance of the place of the President and Vice President under the Nigerian and American Constitutions and why the Vice President must never be seen as a mere dispensable spare tyre. This is because the Constitution has specifically assigned definite functions to that office. Today, we shall continue with the specific duties of the Vice President in Nigeria.

SPECIFIC DUTIES OF THE VICE PRESIDENT IN NIGERIA (continues)

A review of the Constitutions of some other countries such as United States of America and India shows that they contain provisions relating to the Vice-President acting as President during the temporary absence of the President.

Actually, section 145 of the 1999 Constitution of Nigeria is nearly in pari materia with Article 3 of the 25th Amendment of the Constitution of the United States of America. This is not surprising as it is an acknowledged fact that our democracy (including our Constitution) is modelled after the American version.

The main differences between the provisions of Section 145 of the 1999 Constitution and Article 3 of the 25th Amendment of the Constitution of the United States of America are that there is no reference to the President’s vacation in the provision in the Constitution of the United States of America unlike the 1999 Constitution and the fact that the officer of the Senate to whom the President’s letter is addressed is the President pro tempore of the Senate unlike in the 1999 Constitution where the letter is addressed to the President simpliciter of the Senate and the Speaker of the House of Representatives. There is a similar provision in the Constitution of India. Accordingly, section 65(2) of the Constitution of India clearly states as follows:

“When the President is unable to discharge his functions owing to absence, illness or any other cause, the Vice-President shall discharge his functions until the date on which the President resumes his duties.”

Section 146(1) of the CFRN is silent on the tenure of the presidency of the Vice-President. It may be reasonable to assume that the tenure of the Vice-President’s presidency under section 146(1) should be for the unexpired period of the tenure of the President who vacated the office. This conclusion can be justified. In the first place, the President and Vice-President are elected on a joint ticket.

Secondly, provisions of Part I of Chapter VI of the 1999 Constitution relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President applies to the Vice-President as if references to the President in those provisions were references to the Vice-President.

Thirdly, and more technically, the use of the expression “shall hold the office of President” in the subsection is definitive. In other words, it connotes a reference to the unexpired tenure of the President being succeeded.

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Indubitably, the 1999 Constitution is predicated on the principle of single executive. This is evident from the vesting of all the executive powers of the Federation on the President by section 5(1)(a). The Vice-President, therefore, has no executive role except as may be assigned to him by the President, and as assigned by the Constitution. Nevertheless, it is indefensible to assert that the Vice-President is an outsider in the government. The 1999 Constitution, unlike the American Constitution, has numerous provisions as we have seen above, which ensure that the Vice-President is carried along in the administration.

THE VICE PRESIDENT IS NEITHER A SERVANT NOR SLAVE OF THE PRESIDENT

The Courts in Nigeria, especially the Court of Appeal have also done a great job in elevating the office of the Vice President beyond that of a mere servant or loyalist of the President who can be removed at the pleasure of the President.

In the case of Atiku Abubakar v. Attorney-General, Fed. (2007) 3NWLR (Pt 1022) 601 at 637 Paras. D – F(CA) the Court reasoned:

“At the stage of nomination for election, the presidential candidate who nominates his associate or colleague or companion can drop his running mate at any stage before the election subject to the relevant provisions of the Electoral Act for any reason. After the election and they are jointly declared elected upon one becoming President and the other Vice-President, the former loses his discretion to remove the latter at will. The removal of the Vice-President will then become subject to other provisions of the Constitution, such as section 143 or 144. “The bond of companionship which compelled them, to remain together during election loosen and they would swim to certain extent, separately. The interest tangible or intangible of the Vice-President vests and could no longer be so easily wished away by either the President or the political party which sponsored them for the election. On his election, he ceases to be Vice Presidential candidate of the sponsoring party and becomes the Vice President of the Federal Republic of Nigeria by the grace of the electorate and no longer of the President who nominated him as his running mate and the party which sponsored both of them. These Vice-Presidential candidates are not always liability, a times they are assets who bring strength to the ticket. Will this bond of friendship prevent him from assuming office in the event of impeachment of the President? Certainly not.” Per.Abdullahi , PCA.

The Court went further to state quite unequivocally:

”Having regard to the Oath of Allegiance and oath of office stipulated in the Seventh Schedule to the 1999 Constitution and requires to be sworn by the Vice President of the Federal Republic of Nigeria, he does not owe a duty of allegiance and loyalty to the President of the Federal Republic of Nigeria or the political party on whose platform he was elected to the office of Vice President. The allegiance of the Vice President of the Federal Republic of Nigeria is to the Federal Republic of Nigeria, and he has an unreserved or unalloyed duty to defend the Constitution of the Federal Republic of Nigeria as required both in his Oath of Office and Oath of Allegiance under the Constitution. “Next to be considered is the question of the Vice President breaching ‘his obligation of one mindedness, loyalty, material trust, confidence and good faith.’ This passage or its variant runs through most of the questions framed for determination of the first defendant’s counter originating summons. This point was strenuously pressed or pursued by the first defendant supported by the second and sixth defendants, the Inspector General of Police and the Independent National Electoral Commission. None of them directed the attention of the court to any authority, statutory or decided case. I, too, do not know of any authority which creates a supine, single-minded Vice President, indeed a robot. It is respectfully, to my mind not the intention of the Constitution to create a Vice President with no mind of his own. I shudder to imagine what would be the fate of the Country in unlikely event of a President dying in office or impeached and the Vice President had to assume office of the President. The only source from which one can glean the person to whom the Vice President, indeed all those who hold their offices under the Constitution owe allegiance and loyalty is the Oaths of Allegiance and the various Oaths of Office contained in Seventh Schedule of the Constitution. ‘ I have painstakingly reproduced both the Oath of Allegiance and Oath of Office of the Vice-President etc and can find nowhere in both Oaths where loyalty and faithfulness and true allegiance is owed to the President of the Federal Republic of Nigeria who in his own right subscribes to the same Oath of Allegiance with the Vice-President and an Oath of office that is essentially identical to that sworn to by the Vice President. I agree that the Vice-President should have an undivided loyalty but that loyalty is due to the Federal Republic of Nigeria and not, I repeat not, to Mr. President not Peoples Democratic Party who in any case is a stranger to the Constitution of the Federal Republic of Nigeria. If the Vice-President were to have undivided loyalty to the President of the Federal Republic of Nigeria as postulated by the defendants, how does he defend the Constitution which he has sworn to defend in event the President’s interest or desire is in conflict with the Constitution?. It is respectfully my view, that the Vice-President’s allegiance is to the Federal Republic of Nigeria and has an unreserved or unalloyed duty to defend the constitution as adumbrated in his Oath of office and the Oath of Allegiance.” Per. Abdullahi P.C.A.

The Nigeria Constitution, like the American presidential system, envisages single executive for which the President is the head and in whom the executive powers are vested. Article 11 of the Constitution of the United States, just like section 5(1) of our Constitution, provides that “the executive power shall be vested in a President of the United State.” The principle implies the preclusion of a current vesting of the executive powers in two or more persons of equal authority. The Principle also has the effect that the legislative organ cannot take away from the President or confer on others, functions of a strictly executive nature: See Myers v. United States 272. US 52; Nowak & Rotunde, Constitutional Law, 6th edition paragraph 7.14, page 298; and Nwabueze, Constitutional Democracy in Africa, (Vol. 4) Forms of Government, page 76.

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One of the implications of the principles of a single executive, as relates to the Vice President, is that although the office of Vice President is, unlike that of a minister under the system, an elective one, he is not voted in a separate election, but by the very same votes by which the President is elected. This is because, as already shown above, a Presidential candidate is required to nominate another candidate to run with him on the same ticket as mate or associate” for the office of Vice President.

I believe that the unity contemplated by the arrangement transcends the election. I also believe and hold that their relationship should be throughout their joint term. The position is as aptly described by Prof. Nwabueze at pages 78 to 79 of his book, cited supra, where he stated as follows:

“It is not intended to suggest that the union (between the President and Vice Present) demands of the Vice that he should be a slave to the President, with no will or opinion of his own. It does not submerge his personality or individuality in that of the President or make them two-in-one…. As the President’s chief adviser, it is his prerogative and duty to discuss freely with him the policies and actions of the government, to point out any defects or errors in them, and the dangers to which they may expose the government. Nevertheless, having done this, the principle of collective responsibility binds him to all government decisions or actions, whether they emanated from the President alone or from the Executive Council…”

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(To the continued).

Read Part 1 here

Read Part 2 here

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