The president and vice-president under the Nigerian and American constitutions

It is clear from the 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.

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.

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 parimateria 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.”

• Right virtues make nations great ― Osinbajo

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.

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 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.

• Chief Ozekhome is legal luminary and foremost pro-democracy and human rights activist.