‘President cannot exercise official duties abroad while on private visit when there is a VP’
Last week, there were heated debates about the legality or otherwise of signing a bill in London, United Kingdom (U.K,) by President Muhammadu Buhari, who is in that country on a private visit. In this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, the Principal Counsel, The Law House, Lagos, Mr. Theophilus Orumor, says section 145 of the 1999 constitution needs to be amended to allow vice president automatically take over power in absence of the president. He also examined the proposed law to regulate social media and the criminal abduction of judicial officers among other topical issues.
There have been arguments about the legality of the president signing official documents abroad when he is on a private visit. What is your view on that?
The pertinent questions are is the President on official or private or medical leave? If say he on a private visit, then it means he is on official leave. Next, was power transmitted to the next in command? To enable the next in command act appropriately? The implication of not transmitting power and signing of a bill in the UK is that he is not on official leave or private visit. I think the presidency should correct the notion that he is on a private visit.
Another side of the argument is that the law mandates the president to transmit power to his deputy if he is going to be away for 21 days but he didn’t do so, since he will effectively be away for 21 days if his days in Saudi Arabia are added. What do you make of that?
The implication of all these are clear. I do not want to believe that the presidency do not know what they are doing. To think that they do not know what they are doing will be clearly preposterous. The best bet is not to add the trip to Saudi Arabia to the number of days he will be absent. These are very elementary issues, and the implications are very clear. Those managing the presidency know these elementary issues and the implications thereof. It should not really be a source of worry except there is a deliberate effort to sideline the constitutional Provisions of the 1999 Constitution
Will you agree with the suggestions that we need to amend the constitution to say that once the president travels out of the country for a private visit or vacation, the deputy automatically acts on his behalf?
By implication, this should ordinarily be the situation. It is logical. This is commonsensical. I do not see any reason why the president would be on a private visit outside Nigeria, whether leave or vacation and yet still purport to exercise official duties from the foreign territory he may be, when there is a vice president under the constitutional arrangement. What I think calls for amendment is section 145 of the constitution. What is all that rigorous requirements for? Does the constitution create the position of an acting president or the vice president? Are there two offices? No. So why go through all those processes before you act as a president when the president is unable to discharge the functions of his office under the provisions of the constitution? The implication of section 145 of the constitution is that the procedure under that section must be followed before a vice president can act as an acting president. This cumbersome lacuna should be amended.
A lawmaker was quoted to say that the office of chief of staff is more powerful than that of the vice president in a presidential system. What is your view on this?
My hope is that the lawmaker has not been misquoted. If not, I hope the lawmaker realises the implications of his assertion. For me, it has never been the case that the office of chief of staff is more powerful than that of the vice president in a presidential system. Section 141 of the Constitution of the Federal Republic of Nigeria specifically establishes the office of the vice president of the federation, unlike that of the Chief of Staff, which is not specifically named in Section 151(1) or Section 171. Constitutionally speaking, instances, where the vice president can act as the defacto president, are specifically provided for in section 145 and 146. What the lawmaker is saying is clearly preposterous. Assuming that the vice president is functioning under Section 145 and 146, can the lawmaker assert that the office of the Chief of Staff is more powerful than that of the Chief of Staff of the president? People should watch their statement and generally refrain from making statements that could heat up the polity. People are tensed right now battling with the state of the economy, the appalling security situation and the poor state of infrastructure, especially roads networks.
The government is planning to enact a law to regulate social media through the national assembly. What do you think of the move?
What differentiates social media from other forms of media is that it is easily accessible by everyone, irrespective of class, race and creed and position in the society. So one thing social media has attained, to the utter consternation of some elites, is that everyone now has a voice at a next to nothing financial cost implication. Some have contended that the speculated attempt to regulate social media is a class war. I am tempted to agree. I think the elites, the rulers and the capitalists, etc are not too happy about the easy access to social media by everyone, especially the proletariat. So I am not surprised by what is happening. If I remember very well, an attempt was made in this light in the past, but it died a natural death. Social media regulation has so many issues tied to it. It is not an easy road to pass through in view of the fact that social media is hosted on the World Wide Web.
Again, how many of the social media hosts are Nigeria companies? Facebook, Twitter and Whatsapp and many others, with lots of Nigerian users, are not Nigerian entities. These are mostly American companies. How do you regulate their users based outside Nigeria? How is our government going to regulate Nigerian users outside of Nigeria? There would certainly be issues of conflict of law. Section 39(1) of the constitution guarantees freedom of expression without interference. This right is not absolute in the sense that the subsections under that section make several qualifications to this right of freedom of expression. For me, the present efforts to regulate the social media are another step in the wrong direction. This effort is clearly needless. There are already in existence, extant laws to deal with abuse of the freedom of expression. There are laws on defamation even under the already existing criminal laws. There are laws on criminal defamation. There are existing laws regulating the use of cyberspace and cybercrime. There are existing laws on sedition. There are laws for the protection of official secrets of government. I know that some jurisdictions like India regulate social media. But as I said earlier, this attempts to regulate social media is preposterous in view of the already existing laws some of which are referred to above. There must be an end to unnecessary duplication of laws in the country. Let us channel our efforts towards enforcing existing laws and not go on gargantuan formulations of laws to generate sensationalism and attempt gauging freedom of expression of individuals
The sub sections you refer to, do they include criticism of government?
What is criticism of government? One of the defences for defamation is justification and privileged information. A person who states his opinion of a given situation can’t be held to have done any wrong except the opinion exceeds the stated qualifications under the existing laws. A government that is doing well need not be afraid of criticism. Criticism affords the government an opportunity of receiving feedback. Through criticisms government is able to tell whether its policies are popular or not. The government then decides whether to restrategise or not.
What do you think about the heinous adoption of a justice of the court of appeal?
It is pathetic! Even more so for the innocent police officer that was killed in the line of duty. What this adoption point to is that gradually, insecurity and banditry is creeping to the crescendo in the country. No one is safe again. It can be anybody’s turn the next day. Why our security forces/government have not declared a national emergency on the state of insecurity, adoptions and kidnappings is what beats my imagination. I call for the massive beefing up of security with a view to stemming the situation in the tide. I call for the massive funding of the police and other relevant security agencies. I know that the situation is not beyond the police and other security agencies. They can work if given the right incentives.
In tackling the pervasive insecurity, many believe state police is the way. Do you subscribe to that view?
The issue of state police is a very technical one. We are a country of heterogeneous people. There are issues of nepotism and ethnocentrism everywhere with our multi-nationalities. There are large numbers of people who reside outside their state of origins. To be emphatic, I do not think we should go the way of state police at least not for now. This will certainly cause more harm than good. Where are those who were clamoring for state police today? Did they not, on getting to the centre of power, suddenly become quite about it? That is because the issue is not as easy as it seems, particularly with the nature of our society. The Americans have state police because most of their states existed individually before agreeing to form a federation. Thus our own federalism is different from the American federalism. Let us not copy blindly. The Police structure as presently constituted is okay by me. It has fostered national cohesion. What the police needs to tackle crime comprehensively is massive funding and human capacity development. I do not see any reason why our police don’t conduct aerial patrol of crime prone areas. The police also need to set up operational synergies with the armed forces, like the days of operation sweep in Lagos.
The argument is that community policing will tackle the issue of insecurity, since most members of our national police officers are usually posted to locations they are not familiar with in terms of culture, language and terrain?
Yes! From recent newspaper reports, I believe the Police adopted this method of policing with a western socio cultural youth group. The essential focus of community policing is the Police’s proactive engagement with the community and the end users of the police services. In community policing, the police form partnership with the people groups and or socio cultural groups with the aim of nipping a particular crime in the bud. Community Policing is certainly better than the issue of state police for now. The issue of even community policing has its own challenges.
Your colleagues are agitating that police should be removed from prosecuting cases because of the shoddy jobs they do some times. Do you think, removing the police in prosecutorial assignment will enhance criminal justice administration?
A way out is for police force to recruit more lawyers into their midst for the purpose of prosecuting their cases. The problem of unsuccessful prosecution of cases goes beyond the police prosecutors. One problem is the inability of the prosecution team to gather its witnesses. Most IPOs are usually transferred out of jurisdiction before they finish giving evidence in their matters. There is need for massive human and manpower development of the prosecution team.
Do you think the Nigerian Bar Association (NBA) as the mouthpiece of lawyers is doing enough to protect the interest of the Bar and Bench?
To be honest with you, deep down in me I don’t sincerely think so. Lots of lawyers don’t share that sense of belonging. You certainly can’t compare the present NBA with that of the era of Alao Aka-Bashorun and other leaders of the like. Yes, the present crop of leaders of the Association hold glistering conferences, make statements, sign detailed communiqués and what have you, yet I still think enough is not been done by them. There seems to be a lot of jamboree seeking persons in the fold. Commercialism seems to be the major interest of some. No doubt, some of the branches must be singled out as vibrant, for example, Ikeja, Ota, Owerri, Onitsha, Benin and Port Harcourt branches. I must specifically commend the Ota branch for their recent drawing of the attention of the relevant government agencies to the state of roads in their environment. A lawyer is a minister in the temple of justice. A lawyer is a beacon of hope to the defenceless. Lawyers must not in their bid of luxuriating themselves forget the natural mandate on them. Some pertinent questions for the bar are: How committed is the bar to the welfare of its members? Are there discriminations in the way members are treated? For example, whereas in the east and south south, most bar associations would ensure a valedictory court session is held for their deceased members, this is a rear privilege in other branches, where it would seem that such privilege is only reserved for the deceased high and mighty. I also commend the Benin and Owerri Bar for their proposed boycott of court over the adoption of the justice of the court of appeal. A call mate of mine, Mr. Iyke Emelogu of the Port Harcourt bar has been adopted for months. The Bar should come to his aid.
Aside the local branches, what of the national leadership? Are you expecting some more radical approach and what would those be?
In my opinion, the disposition of national bar leaders really depend on which side of the divide they are as practicing. The business/commercial lawyer’s ways are different from that of human right activists background lawyers. Commercial lawyers hardly want to rumple the feather. They tend to be pro-establishment. The lawyers on the other side of the divide are more confrontational and vociferous. So, how a particular bar leader administers the bar depends on their predisposition. I know in the coming years, the vibrancy of the bar would be revived. Some non-silk younger members of the bar are indicating interest in leading the bar. One did in the last election. Other ones are gearing up for next year’s general election. It is my hope that their own period would certainly revive the bar as watchdogs in society.
How can we address the problem of court congestion, which has defiled the introduction of front loading and Case Management Conference (CMC)?
For me, the ways to tackle the problem of congestions in court, for example in Lagos, are as follows: create and build more courts, appoint more magistrates and judges and increase the jurisdictional powers of the magistrates, the Citizens Mediation Centers and the Lagos Multi –Door Court Houses. A state with a population of 22 million people should have more than 100 judges and more than 100 magistrates. The constitution has created uninhibited access to court, especially the High Court of a State. I am not particularly thrilled with the 2019 rules especially with regards to the practice direction requirement of pre-action protocols. I see same as infringing on right to access the court. You can’t stop people from approaching the court except you want chaos in the society.
Some Tiger Bar members made attempts to judicially stop these rules but they were unsuccessful. Further, judges must be made to have at least two or three research assistants. I have been seeing some lawyers sitting in the court registrars’ portion of the court. I hope their functions are not merely clerical. The research assistants would not only research authorities for the judges, but they should be able to prepare draft rulings and judgments for the judges. I am not sure whether judges still take proceedings in long hand. I know recording gadgets were introduced about 15 years ago with so much enthusiasm. The court registries need to be modernized. The present procedure of e-filing along side manual filing should be discontinued. It unnecessarily prolongs the filing process. It is either e-filing is solely adopted or manual filing is solely adopted.
Elections are coming up in Kogi and Bayelsa states and politicians are preparing to unleash violence as usual. Do you think the establishment of electoral offenses tribunal would curb the ugly trend?
This will go a long way in curbing the ugly trend, as these criminals will be prosecuted faster. However, will these courts be created under the Electoral Act or a separate independent Act? So, the time is certainly too short for those. Perhaps, they can be done ahead of the 2023 elections.
Unbundling the Supreme Court was an issue recently when a ministerial aspirant suggested it. Will you agree or disagree with the idea and why?
One of the reasons proffered by my learned senior for his desire of unbundling of the Supreme Court was due to over congestion of the current Supreme Court as a single entity. However, while I agree that the Supreme Court is certainly over congested with cases, I do not think unbundling is the solution to the problem. If you unbundle, does that mean we would have six Chief Justices of the Federation for each of the geopolitical zones? Some of my suggestions for getting out of this debacle are to appoint more justices of the Supreme Court so you can have more panels. Delineate matters and make some to end at the Court of Appeal level while only constitutional and exclusive list matters should end at the Supreme Court. Why for instance should land, chieftaincy, matrimonial causes or simple contract cases be allowed to reach the Supreme Court?
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