Ahamba SAN: Tinubu Working Vacation Lacks Section 145(1) Legality

• President Bola Tinubu's "working vacation" in Europe, which began on August 30 and extended to 30 days, has sparked a constitutional debate.
• Senior lawyers, including Mike Ahamba and Oladele Joseph, assert that the concept of a "working vacation" is not recognized by Nigeria's 1999 Constitution.
• Section 145(1) of the 1999 Constitution mandates that a President on vacation or unable to discharge duties "shall transmit a written declaration" to the Senate President and House Speaker.
• The Presidency extended Tinubu's absence, which coincided with Vice President Kashim Shettima's trip abroad, resulting in both leaders being outside Nigeria simultaneously.
• Opposition parties have accused the National Assembly of failing its constitutional duty by not addressing the President's alleged failure to transmit power after 21 days.

The critical legal provision governing presidential absences is Section 145(1) of the 1999 Constitution, which stipulates that whenever the President is on vacation or otherwise unable to perform official functions, a written declaration 'shall' be transmitted to the President of the Senate and the Speaker of the House of Representatives.

President Bola Tinubu's extended stay outside Nigeria, initially termed a "three-week working vacation" in Europe by the State House, has ignited a significant constitutional discussion. The President departed Abuja on August 30, and his absence ultimately stretched into its 30th day. The Presidency announced an extension on September 21, with his return anticipated for September 30, the same day the National Assembly was scheduled to reconvene.

This prolonged absence coincided with Vice President Kashim Shettima's trip to New York on September 20 to represent Nigeria at the 81st United Nations General Assembly. This created a rare situation where both the President and Vice President were simultaneously out of the country. Despite the dual absence, the Presidency maintained that President Tinubu remained in good health and capable of governing from any location.

However, the situation quickly drew criticism from political opposition. Both the Labour Party (LP) and the New Nigeria Peoples Party (NNPP) accused the National Assembly of neglecting its constitutional duty to uphold the nation's supreme law. Their concerns stemmed from what they described as President Tinubu's failure to formally hand over power after 21 days, as they interpret the law to require. This development has not only rekindled a familiar constitutional debate but also raised questions about governance optics amidst pressing national issues like mounting insecurity and economic challenges.

The concept of a "working vacation" as applied to the President's absence has faced sharp criticism from senior legal figures, who argue it lacks any basis in Nigerian law. Mike Ahamba, a Senior Advocate of Nigeria (SAN), a constitutional lawyer, and former presidential candidate, explicitly stated to LEADERSHIP that the term "working vacation" is not recognized by the Constitution. Ahamba contended that a President is either actively performing official duties or is on vacation, with no constitutional provision for a hybrid status.

Ahamba further dismissed the official explanation that President Tinubu continued to discharge his responsibilities while abroad. He suggested that the terminology was employed to obscure what he perceived as a "dereliction of duty and constitutional responsibilities." This sentiment was echoed by another senior lawyer, Oladele Joseph, who also spoke to LEADERSHIP. Joseph emphasized that the legality of President Tinubu's prolonged absence should be assessed strictly under the provisions of the 1999 Constitution, rather than by whether he maintained communication with officials or issued directives from overseas. Joseph reiterated that "working vacation" is not a constitutional category and therefore cannot, by itself, determine the lawfulness of the President's time away.

At the heart of the legal controversy is Section 145(1) of the 1999 Constitution, which outlines the mandatory procedure for presidential absences. This crucial section stipulates that whenever the President is proceeding on vacation or is otherwise unable to discharge the functions of his office, he "shall transmit a written declaration" to both the President of the Senate and the Speaker of the House of Representatives. Oladele Joseph underscored that this requirement is not discretionary but mandatory, highlighting its critical importance in constitutional governance.

Joseph clarified that the Constitution does not prohibit a President from traveling outside the country, nor does it prevent him from communicating with his officials or performing some official functions while abroad. However, he stressed that there is a specific constitutional consequence and procedure attached to a President proceeding on vacation. Section 145(1) prescribes precisely what must occur in such circumstances.

Therefore, the central legal question is not whether President Tinubu had access to communication tools like telephones or the internet, or to government files, but rather whether the explicit constitutional procedure applicable when the President goes on vacation has been fully complied with. Joseph further submitted that Section 145(1) is particularly important, emphasizing the necessity of transmitting the written declaration as prescribed by law.

The ongoing debate surrounding the legality of President Tinubu's "working vacation" and the interpretation of Section 145(1) carries significant implications for Nigeria's constitutional framework and executive accountability. This situation has reignited a familiar national discussion about the strict interpretation of executive powers and the mandatory requirements for presidential absences, underscoring the importance of adherence to constitutional provisions.

Beyond the legal arguments, the controversy also brings into focus the optics of governance, especially at a time when Nigeria is grappling with severe challenges such as escalating insecurity and economic pressures. The accusations from opposition parties against the National Assembly for allegedly abdicating its constitutional duty to defend the Constitution highlight the broader questions of checks and balances and the role of legislative oversight in ensuring executive compliance with the rule of law. This development underscores the strict interpretation of Section 145(1) of the 1999 Constitution regarding presidential absences and the mandatory requirement for a written declaration.

This development underscores the strict interpretation of Section 145(1) of the 1999 Constitution regarding presidential absences and the mandatory requirement for a written declaration. Lawyers should note the legal challenges to the 'working vacation' concept, which could inform future constitutional litigation or advice on executive power and governance.

Source: Original reporting via LEADERSHIP newspaper