Lawyer urges National Assembly to clarify Tinubu’s absence under Constitution

A legal practitioner and public commentator, Justice Osai Ahiakwo, has called on the National Assembly to clarify the constitutional status of President Bola Tinubu’s prolonged absence from Nigeria, amid the simultaneous absence of Vice-President Kashim Shettima.

Ahiakwo said the 1999 Constitution had already provided a mechanism for dealing with presidential absence and that the matter should be resolved through constitutional provisions rather than political arguments.

President Tinubu left Nigeria on August 30 for a three-week working vacation in Europe but the Presidency later announced that his stay abroad had been extended by a few days, with his return expected at the weekend.

Shettima is currently in New York, where he is representing Nigeria at the 81st United Nations General Assembly.

In a statement, Ahiakwo cited Section 145(1) of the Constitution, which provides that when the President is proceeding on vacation or is otherwise unable to discharge the functions of his office, he shall transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives.

According to him, until such a declaration is revoked or otherwise dealt with constitutionally, the Vice-President is to perform the functions of the President as Acting President.

He said Section 145 was substantially amended in 2010 to provide a clearer constitutional procedure for presidential absence.

Ahiakwo, however, stressed that a President’s physical absence from Nigeria does not amount to a vacancy in the office, noting that Section 146, which deals with succession where the offices of President and Vice-President become vacant, should not be confused with temporary absence.

He also drew attention to Section 145(2), which provides for a situation where the President fails to transmit the required declaration within 21 days.

He said in such circumstances, the National Assembly may, by a simple majority of the votes of each House, mandate the Vice-President to perform the functions of the President as Acting President until the President communicates his availability to resume his functions.

“The constitutional solution is already provided. It is not for the Senate President to become Acting President merely because the President and Vice-President are simultaneously outside Nigeria,” he said.

Ahiakwo argued that the National Assembly should ascertain whether the required written declaration was transmitted by the President.

“If the declaration was transmitted, the constitutional position should be made known,” he said.

“If no such declaration was transmitted within the constitutionally prescribed 21-day period, Section 145(2) provides the constitutional mechanism whereby the National Assembly shall, by a simple majority of the votes of each House, mandate the Vice-President to perform the functions of the office of President as Acting President.”

He said the issue should not be determined by who is physically present at the Presidential Villa, but by the constitutional authority to perform presidential functions during the President’s temporary absence.

Ahiakwo also cited the administration of former President Muhammadu Buhari as an example of the practice of formally transmitting a notice of absence to the National Assembly. The 2010 constitutional amendment replaced the earlier Section 145 arrangement and introduced the current 21-day mechanism.

He further recalled the prolonged absence of the late President Umaru Musa Yar’Adua, which led to the National Assembly’s adoption of the controversial Doctrine of Necessity before the 2010 amendment strengthened Section 145.

According to him, the experience underscores the need to follow the procedure expressly provided by the Constitution rather than resort to political improvisation.

“The Constitution does not require political improvisation here. It has already provided the procedure,” he said.

He added that the President’s ability to communicate with government officials from abroad did not, by itself, resolve the separate question of compliance with Section 145.

Ahiakwo therefore urged the Presidency and the National Assembly to provide Nigerians with a clear explanation of the constitutional position regarding the President’s absence and the authority under which presidential functions are currently being exercised.