In July 2017, this news report by the Nation Newspapers opined that because “there is no provision in the 1999 Constitution for the impeachment of an Acting President”, the National Assembly cannot remove an Acting President. The newspaper posited that “The National Assembly can only remove a sitting President or Vice President based on Section 143 of the constitution”.
The report also quoted an unnamed source who said that “The Senators plotting the removal of the Acting President are not even aware that they cannot remove an Acting President”. Furthermore, the source said, that “if they are after Prof. Yemi Osinbajo, they should wait till he reverts to his position as the Vice President”. The source is also reported to have said that ‘’The only option the Senators have now is to serve an impeachment notice on President Muhammadu Buhari…”.
We will therefore factcheck the claim that an Acting President cannot be removed, and that the National Assembly must wait for the elected President to resume office if they want to begin an impeachment procedure.
We obtained and reviewed the 1999 Constitution; Sections 143, 145 & 146 of the Constitution are relevant to the claim regarding the Senate’s ability to impeach the Acting President.
The sections are reproduced below:
Section 143 – “Removal of President from Office”
143-(1) The President or Vice-President may be removed from office in accordance with the provisions of this section.
(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the National Assembly—
(a) is presented to the President of the Senate ;
(b) stating that the holder of the office of President or Vice-President is guilty of misconduct in the performance of the functions of his office, detailed particulars of which shall be specified,
the President of the Senate shall within seven days of the receipt of the notice cause a copy thereof to be served on the holder of the office and on each member of the National Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office to be served on each member of the National Assembly.
(3) Within fourteen days of the presentation of the notice to the President of the Senate (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice) each House of the National Assembly shall resolve by motion without any debate whether or not the allegation shall be investigated.
(4) A motion of the National Assembly that the allegation be investigated shall not be declared as having been passed, unless it is supported by the votes of not less than two-thirds majority of all the members of each House of the National Assembly .
(5) Within seven days of passing of a motion under the foregoing provisions, the Chief Justice of Nigeria shall at the request of the President of the Senate appoint a Panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section.
(6) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person or be represented before the Panel by a legal practitioner of his own choice.
(7) A Panel appointed under this section shall—
(a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the National Assembly ; and
(b) within three months of its appointment report its findings to each House of the National Assembly.
(8) Where the Panel reports to each House of the National Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.
(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report, each House of the National assembly shall consider the report, and if by a resolution of each House of the National Assembly supported by not less than two-thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of adoption of the report.
(10) No proceedings or determination of the Panel or of the National Assembly or any matter relating thereto shall be entertained or questioned in any court.
(11) In this section—
“gross misconduct” means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.
Section 144 – “Permanent Incapacity of President or Vice President”
144-(1) The President or Vice-President shall cease to hold office if—
(a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice- President is incapable of discharging the functions of his office ; and
(b) the declaration is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the President of the Senate and the Speaker of the House of Representatives.
(2) Where the medical panel certifies in the report that in its opinion the President or Vice-President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice thereof signed by the President of the Senate and the Speaker of the House of Representatives shall be published in the Gazette of the Government of the Federation.
(3) The President or Vice-President shall cease to hold office as from the date of publication of the notice of the medical report pursuant to subsection (2) of this section.
(4) The medical panel to which this section relates shall be appointed by the President of the Senate, and shall comprise five medical practitioners in Nigeria—
(a) one of whom shall be personal physician of the holder of the office concerned ; and
(b) four other medical practitioners who have, in the opinion of the President of the Senate, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions.
(5) In this section, the reference to “executive council of the Federation” is a reference to the body of Ministers of the Government of the Federation, howsoever called, established by the President and charged with such responsibilities for the functions of government as the President may direct.
Section 145 – “Acting President During Temporary Absence of President”
145-Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them in written declaration to the contrary, such functions shall be discharged by Vice-President as Acting President.
Section 146 – “Discharge of Functions of President”
146-(1) 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 in accordance with section 143 or 144 of this Constitution.
(2)Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of Senate shall hold the office of President for a period of not more than three months, during which there shall be an election of a new President, who shall hold office for the unexpired term of office of the last holder of the office.
(3) Where the office of 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.
The reproduced sections deal extensively with the removal of the President and Vice President, especially on grounds of misconduct and infirmity, but the Constitution is silent on the impeachment of an Acting President.
However, no constitutional limitations exist on the powers of an Acting President, neither are there provisions in the Constitution which only apply to the substantive or elected President but do not apply to an Acting President.
Furthermore, Section11(2) of the Interpretation Act (An Act to provide for the construction and interpretation of Acts of the National Assembly and certain other instruments; and for purposes connected therewith) states that:
“A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be.”
Thus, references in the Constitution to the President’s powers, and specifically to the procedure for removal from office, including through impeachment for misconduct in the performance of the functions of his office, also apply to the Acting President. In other words, an Acting President is subject to the same legal and constitutional provisions as the substantive President. Therefore, the National Assembly can impeach an Acting President.
However, it is the person guilty of misconduct as stipulated in Section 143 who would be so impeached. In the case being fact-checked, it is the substantive Vice President, who is the Acting President as at the time of impeachment that would be thus removed for his misconduct, and not the substantive President.
The absentee President cannot be impeached for the Acting President’s misconduct. The Vice President, who for the time in question is the Acting President, can be removed for his own misconduct in the performance of the functions of the office of the President. Therefore, the impeachment of an Acting President is the impeachment of the person acting in the President’s position.
Following the removal of the Vice President, also the acting President, the substantive President shall then be required to appoint another Vice President, in line with the provisions of Section 146(1) and (3) of the Constitution.
Based on the provisions of sections 143, 145, and 146 of the Constitution of the Federal Republic of Nigeria, together with the stipulations in Section 11(2) of the Interpretation Act, an Acting President, who is the substantive Vice President, can be impeached by the National Assembly.
Therefore, the claim that the National Assembly “cannot remove an Acting President” but must wait for the elected President to resume office if they want to begin impeachment procedure is false.
NB: While it is always a concern for anybody outside of the law courts to pronounce definitively on a constitutional matter, our interpretation is that the Senate CAN impeach Acting President Osinbajo in line with the constitutional provisions for impeachment of the President and Vice President, although this has not been tested in the history Nigeria’s democracy.