The Constitutionality Of President Buhari’s ‘Private Visit’ And The Privacy Of A Public Servant By Festus Ogun



It is no longer news that President Mohammadu Buhari has embarked on a 10 day “private visit” to the UK without informing the National Assembly and delegating presidential powers to the Vice President. Expectedly, this matter has since generated serious political and legal controversies. The thrust of this legal opinion, therefore, is to examine the legality of the President’s visit and make an x-ray of his right to privacy — as a public servant.

To start with, the trite position of the law is that the President cannot embark on a vacation without formally informing the National Assembly. Section 145(1)(2) of the 1999 Constitution of the Federal Republic of Nigeria, amended 2011 (herein referred to as “the Constitution” or “1999 Constitution”) provides that: 

(1) 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 the President of the Senate and the Speaker of the House of Representatives to that effect, and until he transmits to them a written declaration to the contrary, the Vice-President shall perform the functions of the President as Acting President.

(2) In the event that the President is unable or fails to transmit the written declaration mentioned in subsection (1) of this section within 21 days, the National Assembly shall, by a resolution made by a simple majority of the vote of each House of the National Assembly, mandate the Vice-President to perform the functions of the office of the President as Acting President until the President transmits a letter to the President of the Senate and Speaker of the House of Representatives that he is now available to resume his functions as President.

The purport of this provision is very clear and has raised no ambiguity of any sort. As subsection 1 provides, it is mandatory for the President to formally inform the National Assembly when he wishes to proceed on vacation or when he is unable to discharge his function. Notably, the provision also wears the Vice President with the Presidential robe once the letter has been transmitted to the National Assembly, regardless of whether the President included it in his letter or not.

The word “shall” used in the section means must.  In John v. Igbo-Ekiti LGA (2013) 7 PT.1352 P.1 at 16, it was held that whenever the word “shall” is used in an enactment, it connotes imperativeness and gives no room for discretion on the part of the person whom the Constitutional duty is imposed. Importantly, the Supreme Court in Rabiu v. State (1981) 2 NCLR 293 held the need for a liberal and purposive approach in constitutional interpretation.

The question that should agitate the mind is whether the 10 days private visit amounts to vacation as captured under section 145(1). Wikipedia defines vacation to mean “a leave of absence from a regular occupation”. The President, leaving his official and constitutional duties for good 10 days cannot be regarded as a “relatively short absence” but a vacation. The unjustifiable absence from office for days cannot be given any other meaning than vacation as used in the section. It is a constitutional infraction for the President to vacate the country – leaving his official duties – to a private mission for more than a week. There is a huge difference between embarking on an official assignment that lasts for days and merely jetting out of the country for reasons best known to him. The former cannot be treated as vacation and no letter is required to the National Assembly. But, in the latter, the letter must be written and constitutes vacation.

From the above, it is clear that the deliberate refusal of the President to  follow due process stipulated by the Constitution before embarking on his trip is a Constitutional violation and gross misconduct. It amounts to a total disregard to the rule of law and a conscious attempt to return Nigeria to anarchy.

Shockingly, the Presidency in justifying the illegal vacation claimed that “the law is only infringed upon when such absence extends to 21 days”. Most respectfully, that exculpatory interpretation given by the Presidency is highly wrong and alien to our jurisprudence. The Presidency has no power whatsoever to make, twist or fabricate laws. They cannot translate their wishes and desires to law. The power to make laws for the peace, order and good governance of Nigeria is vested in the Legislature under Section 4 of the Constitution. 

It is settled that whenever a constitutional provision is to be interpreted, the sections should be read as a whole and not in isolation.  See Chief Odumegu Ojukwu v. Chief Olusegun Obasanjo (1999) 7 SC (Pt. 11) 30. Hence, the interpretation of Section 145(2) cannot be complete without reading it together with Section 145(1), vice versa.  

From the words of Section 145(2), it is seen that the failure of the President to write the National Assembly after 21 days of absence,  shall warrant the National Assembly to mandate the Vice President to carry out the functions of the President and act in capacity as Acting President  by a simple majority vote. The President shall thereafter write the National Assembly whenever he is ready to resume his functions as the President. 

With due respect, the Presidency should be cautioned so as not to crucify our Constitution in the bid to defend the President at all cost. The President is a creation of law and must not act or be treated as though he is above the law. Section 1(1) of the Constitution provides that the Constitution is supreme and Section 1(3) provides that any act done inconsistent with the provision of the Constitution must be declared unconstitutional and illegal. See Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR pt. 18

Sadly, President Buhari is proudly breaching the rule of law despite his Oath of Allegiance “to preserve, protect and defend the Constitution of the Federal Republic of Nigeria” and virtually everyone seems to be comfortable with it. And it is a truism that the consistent subversion of the rule of law by President Buhari is a dangerous precedent that must be averted by all legal means possible.

THE PRESIDENT AND A PUBLIC SERVANT’S RIGHT TO PRIVACY

There are arguments as to whether the President being a public servant can go on a ‘private visit’. Put in another way, being a public official, does the President’s right to privacy extends to going on private missions and ‘vacations’?

The right to private and family life of all citizens are guaranteed under Section 37 of the Constitution. However, public servants and officials are public properties. In this sense, it means that once they assume political offices, they are now public personalities whose lives and activities are matter of public knowledge. Instructively, the critical moves and actions of public officials that are of national importance and relevance are not to be treated personal but public. They no longer just represent themselves but the electorates and their constituencies. So, their lives and activities, especially with regard to the office being held, should not be kept private to the public. 

The learned scholar, N. Dimgba argued that “being public figures, such citizens have freely waived their right to privacy by necessary implication”. Although, there is yet to be any statutory provision to this effect, it is humbly canvassed that public officials should by implication of their status lose their “official” privacy and this does not necessarily open the floodgate for defamatory publications against them.
Matters of public interest should not be kept private and should be seen as a strong defence to an action for breach of privacy. What, then, constitutes public interest? Our courts have made attempts to give a few answers. In Adikwu v. National Assembly (1982) 3 NCLR 398 and Tarka v. Sketch (1978) CCHC 268, the Supreme Court defined public interest to mean issues concerning the government of the day as well as its leaders. See also Nigeria Textile Mills v. Punch (Unreported Suit No. ID/768/84 of 13/61986)

Consequently, it is wrong to conceal information about the President and his activities, especially those of public importance. It is against the spirit of constitutional democracy.

The President’s vacation is not just illegal but also shows a high level of insolence and embarrassment on the persons of Nigerians. President Buhari owes the people of Nigeria explanations about his unauthorized visit since he is carrying about the emblem of the entire citizenry. Additionally, the bills of his travels, accommodation and all incidental costs are footed by our collective resources.  Why then should the vacation be shrouded in secrecy? 

President Buhari owes Nigerians deep apology. This is premised on the ground that the powers of government are delegated by the people through the Constitution. Infact, sovereignty belongs to the people of Nigeria – Section 14(2)(a) of the Constitution. So, the President must treat the citizens with care, dignity and proper regard. 

Let me conclude with the alluring words of the late sage Oputa,  JSC: “the fault is not in our stars but ourselves. It is not in our past constitutions but in our failure to obey law, to respect and revere the most fundamental of all our laws – Our Constitution”.

Festus Ogun, a human rights activist, is a final year Law student of Olabisi Onabanjo University. 09066324982 [email protected] .
 

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