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From Kennedy Emetulu
So much has been said and is still being said about President Muhammadu Buhari’s illness, his absence and the law. Broadly, there are four provisions in our laws that apply to this situation and all of them taken together are clear as par what should happen despite the attempt by some public commentators to give the impression that there is a lacuna or a loophole that renders the applicability of the law as it is impossible or doubtful. Three of these provisions are in the Constitution (sections 144, 145 and 146(1)) and the other is in the Public Service Rules - that is PSR 070316 which stipulates that the maximum aggregate sick leave which can be allowed an officer in public service who is not hospitalized, during any period of 12 months shall be 42 calendar days.
Let’s take a look at the constitutional provisions and see how they apply.
First, section 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 a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President”.
The commonest mistake some public commentators make about this provision is that they overstretch its application to cover a situation where the President is seriously ill when it is not meant to apply in that situation as there are other constitutional provisions for that eventuality - (sections 144 and 146(1)). The above provision applies only in two situations. The first is when the President is going on a vacation and the second is when he is otherwise unable to discharge the functions of his office when the reason for such is not a serious illness likely to render him incapable of discharging such functions.
So, when in June last year, the President proceeded on what the presidency said was a 10-day holiday, with a claim that he would be using the opportunity to treat an ear infection, no one had an issue with that because he did the constitutionally required thing, which was to transmit to the President of the Senate and the Speaker of the House of Representatives a written declaration that he was unable to discharge the functions of his office for that moment because he was proceeding to London briefly for the stated purposes. There was no issue as to when he would return or whether he would return to his post because no one was thinking an ear infection will render him incapable of performing his duty as president. In fact, the three issues of controversy relating to the matter at the time were, one, the fact that he was seeking treatment abroad when he himself has said during the campaign that he was cracking down on medical tourism and the practice of public officials seeking medical treatment abroad; two, the fact that he was travelling to London for such a minor medical issue that Nigerian doctors could have handled easily at home and three, the cost to Nigerian citizens and taxpayers of such treatment. Indeed, we all recall that the presidency actually engaged our own Professor Farooq Kperogi who raised issues over the matter when they claimed through Mallam Garba Shehu that it was only N20 million that was spent on the ear treatment.
Of course, knowing what we know now, it looks like the ear infection story was a cover for something worse. This is because before the President travelled out for that treatment, for weeks he confined himself to the Villa and on a number of occasions cancelled trips scheduled for outside the country and within. The Vice-President, Professor Yemi Osinbajo represented him in some of them. For instance, the Vice-President represented him in Papua New Guinea where the 8th Summit of the African, Caribbean and Pacific Group of States was held and at the 48th Ordinary Summit of Heads of State and Government of the Economic Community of West African States (ECOWAS) which was held in Dakar, Senegal. We also recall that the President had to cancel a well-advertised trip to Lagos to inaugurate some projects executed by Governor Akinwunmi Ambode despite the elaborate preparation made by the Lagos State Government and his party, the APC to receive him as the trip was billed as some kind of platform for re-engagement with the South-West wing of the party after some internal disagreements. However, the most high-profile miss on the domestic front was the fact that he did not attend the much-publicised flag-off of the implementation of the UNEP Report on the cleaning up of Ogoniland and the Niger Delta. I even expressed an opinion then about why his miss was bad public relations for the government. Of course, at the time, we didn’t know he was ill, we only knew he was holed up in the Villa. Nonetheless, he left for that trip on the 6th of June 2016 and returned on the 19th of June 2016. So, constitutionally, everything went well even though Nigerians who questioned his decision to go abroad for such supposedly minor medical issue or the amount spent had a right to do so.
Then came January 2017 and once again the President traveled abroad and this time we were told it was for another 10-day vacation. We recall that even though the President’s letter to the National Assembly stated the vacation was to start on the 23rd of January 2017, the President was evacuated abroad two days earlier on the 21st of January. This lent credence to rumours that this was not a vacation, but a medical-related evacuation. We all were witnesses to how presidential media managers, Femi Adesina and Mallam Shehu Garba and the Minister of Information, Lai Mohammed mismanaged the information about the President’s condition, which led them to even begin to publicly engage with people vociferously over the issue. They kept saying the President was in London on vacation and that he was not in any hospital and he was not ill, even though they had stated that during the vacation he would do some “routine medical check-up”. They insisted he would be back to work by the 1st of February, 2017.
Now, up to this point, the President was still constitutionally in order, even though the lies about his condition were becoming increasingly untenable. In fact, most citizens were mainly concerned with how the President’s spokespersons mishandled information surrounding his absence up to that point. However, shortly before the 1st of February, we were then told that the President would be extending his stay indefinitely because he had to wait for the results of certain medical tests conducted. We could see that they were still building up on the lies. Obviously, because they had lied that he was only on vacation and that he was only using that opportunity of the vacation to do some routine medical tests, it was natural to continue that lie by claiming now that his inability to meet up with the 1st February date was because he had to wait for the test results. Terrible story, but that was what they told Nigerians. It was the excuse they gave for the President’s extended stay.
For the purposes of our analysis, we can see that at this point, even if we accept their excuses for the President extending his stay, the action he undertook under section 145 is no longer enough because we were now straying into medical reasons for his absence. Besides, the Constitution does not provide for the President being absent or being away indefinitely. I mean, one of the things the supporters of the President say is that this situation is different from that of President Umaru Yar’Adua because Buhari transmitted the necessary letter handing over to the Acting President to the National Assembly, but what they are not saying is that they have handled information about the illness itself rather poorly. They cannot continue to refer to the fact that he transmitted a letter as justification for staying away for this long on medical grounds. That letter is only useful where the President is expected back at his duty post shortly after, not in this kind of situation. Of course, if the President or his handlers had been forthcoming with Nigerians about the situation at that point, things would have been different because Nigerians would have given him more time and given him the benefit of the doubt as far as there is hope that he would recover fully and not be incapacitated from performing his duties for an unduly long time.
At any rate, when the President eventually returned on the 10th of March, it was obvious they couldn’t sustain the lies anymore because the President looked severely emaciated and disoriented in the little time the public saw him. More crucially, he himself spoke of how really sick he was, implying he had to take blood transfusions and so on, which altogether clearly points to some serious illness, even though he wasn’t disclosing what this is exactly. He then added ominously that he would soon be returning for more treatment in the UK. Meanwhile, between then and the 7th of May when he returned to the UK, he was hardly seen in public or in office. His handlers said he was working from home. Indeed, the only times Nigerians saw him were when he was scrambled to attend the Aso Rock mosque on Friday, the 5th of May (in order to quell the rumour that he was incapacitated) and when he received the girls freed from Boko Haram captivity on Sunday, the 7th of May. Even then, those watching him with the girls on television could see his condition was dire. A few hours after that he was once again evacuated to London. It’s now almost a hundred days he’s gone in this last instance.
So, clearly, at this point, section 145 of the Constitution is not applicable anymore because the matter is beyond mere vacationing. The President is gravely ill. The Constitution expects that a patriotic citizen occupying the position of the President would know when to resign to go take care of his health because that is indeed a personal decision considering all the circumstances. That is the purpose of the constitutional provision for resignation in section 146 which stipulates resignation as one of the circumstances under which the Vice-President should take over as substantive President in order for there not to be a vacuum in government. But rather than take that opportunity, the President and his handlers have left the Vice-President in an acting, ineffectual capacity while the nation suffers unduly.
Yet, the Constitution recognizes human selfishness and capacity for poor judgment where something is left to their discretion. That is why it vested the power to declare the President “incapable of discharging the functions of his office” in the hands of a collective of people at the highest level, people representative of the plurality of the country because of the way they are constitutionally appointed in line with the Federal Character principle.
Below is the provision of section 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 Official 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 the 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.
We should note that the decision by the executive council of the Federation need not be unanimous, it would be enough if it’s carried by a two-thirds majority vote. We should note also that even though the Vice-President is a member of the executive council of the Federation, he is not included here as part of those to make this decision by virtue of section 144(5). Of course, we should understand why. It would not look seemly for the man who will benefit from the decision of the council (if it declares the president incapable of performing the functions of his office) to be the one organizing a council meeting to vote to bring this outcome about. The Constitution leaves it to the “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”. In other words, it leaves it to people appointed as Ministers from all parts of the federation in line with the Federal Character provision to decide when they feel their appointer does no longer have the capability to perform the role.
We must note also that even though the Constitution gives the executive council of the Federation the power to declare the President incapable of discharging the functions of his office, it did not give it the power to declare him permanently incapable of doing so. All they have to do by their resolution is give an opinion. The fact will be left to be determined by the next stage of the process activated by their resolution. Now, this next stage, which is the appointment of a medical panel by the President of the Senate may not happen if the declaration by the executive council of the Federation is not contested. That is why the Constitution in section 144(1)(b) states that the declaration would be verified only after such medical examination “as may be necessary.…” In other words, if after the declaration the President does not feel he should contest it, he would resign and the whole medical examination will not be necessary.
But in a situation where the President wishes to contest the declaration by the executive council of the Federation, the next stage would be the appointment of a medical panel by the President of the Senate to verify the declaration. The panel shall comprise five medical practitioners in Nigeria one of whom shall be the President’s personal physician and the other four would be “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”. It is this medical panel that has the constitutional power to declare the President permanently incapable of discharging the functions of his office. Once it does that, if it does that, it will issue a report to this effect and the President of the Senate and the Speaker of the House of Representatives will take due notice of this, sign it and it shall then be published in the Official Gazette of the Government of the Federation. The Constitution says from the moment this is published as stated above, the President shall cease to hold office. From that moment also, following the operation of section 146(1), the Vice-President becomes President by reason of the permanent incapacity of the removed President.
Having seen the clear provisions of the Constitution and our laws with regard to our situation, the natural question we need to ask is why haven’t the members of the executive council of the Federation taken this vote to determine if the president is incapable of discharging the functions of his office considering what is obvious to all Nigerians and the whole wide world now, which is that the President is not discharging the functions of his office? Again, we need to emphasize that the issue is not for them to determine if he is permanently incapacitated. The determination of permanence in the President’s incapacity is left for the medical panel. So, why have they not done this constitutionally mandated duty?
For me, I believe the reason members the Federal Executive Council have not made a determination about the president’s capacity to continue in office due to ill health, even when it is obvious to the whole world that the man cannot reasonably continue as President, is because they are selfishly looking at their positions. Here is the thing, the Constitution assumes that the President and members of the Federal Executive Council are patriots who will always put the nation’s interest first and rightly so. I mean, why would we put the affairs of our nation in the hands of scoundrels? That is why it made the provision. First, if the President is a patriot who understands that the nation is bigger than him, he will not drag the nation into the sick bed with him if he realizes that the illness is so grave that he requires a long time for treatment and recuperation. In that case, the Constitution expects him to resign. But where he does not resign for reasons best known to him, the Constitution vests the executive council of the Federation with the power to initiate action that will remove him from office, so that the state is not left in comatose. That is why it says the executive council of the Federation should decide by two-thirds majority that the President is not fit to continue. That in itself is not a conclusive step as we keep repeating. What their declaration does is that it activates the rest of the provisions of section 144 leading up to the medical panel, their report and whatever outcome that results from it based on whether the medical panel declares the President permanently incapacitated or not. But for the sake of the nation, once and if they reach a determination that the President is permanently incapacitated and it’s published in the Official Gazette of the Government of the Federation, that’s it, the Vice-President becomes President and the affairs of state runs smoothly thereafter as expected while the removed President, now relieved of the burden of state administration, quietly goes on to receive the medical attention he needs wherever he chooses for how long he chooses without all the hoopla.
But the cast of characters peopling the executive council of the Federation today are indeed scoundrels who do not have the nation’s interest at heart. They are beholden to a cabal within the presidency that does not want to end their ride on the gravy train. The Ministers are more comfortable with a situation where the President is away indefinitely and where they are not accountable to anybody since the Acting President does not have real or de facto powers to deal with them, because, let’s face it, he cannot be independently sacking any Minister or any top administration official when the substantive President is still in office. We have even gotten an insight into the infighting when we saw the Attorney-General and Minister of Justice, Abubakar Malami openly disagreeing with the Acting President. The Ministers want this situation to continue till 2019, which gives them (especially those interested in elective positions in 2019) the opportunity to steal as much as they can towards that election. With no substantive President in place, they will get away with their heists. But if they activate the provision of section 145 and the Acting President becomes substantive President, they know they would be out of office pronto as the man would want to put his own team in place. They also fear that he might institute a probe into their tenure and possibly use some of them as scapegoats in the fight against corruption and also as a means of endearing himself to the people, especially if he’s looking to seek election to the highest office in 2019.
As for the National Assembly, they are hiding behind a finger. We all read the Senate statement issued on Tuesday, August 8 ostensibly defending the President against the protesters. According to the statement, President Buhari has not violated any law by not returning from medical vacation after 90 days because the President complied with the provisions of the 1999 Constitution, which stipulates that he must handover to the Vice-President and he duly informed the two chambers of the legislature about his medical vacation. Yet, the issue is not about any violation of the law by the President, but the non-exercise of a necessary mandate by the executive council of the Federation where the President is not exercising his discretion to resign in the interest of the nation. Sure, the President has the discretion to resign in the circumstances of grave illness, so he can go take care of his health; but where he is not doing that, the Constitution gives the executive council of the Federation the power to kick-start a process to return stability to the system by removing him. Buhari breaking a law or not is not the issue.
Of course, the reason the Senate isn't issuing such a mealy-mouthed statement is equally selfish. We know that the biggest opposition to the Acting President is coming in the form of the Senate President, Bukola Saraki who, apart from his personal ambition to be President, is being used as a bulwark against the Acting President. It even got so bad that one senator on the floor of the Senate wanted the Senate President to be declared Acting President just because the Acting President was out of the country for a few hours. Saraki and his minions are very much interested in the status quo remaining because that way they keep the Acting President from assuming full presidential powers and stop him from solidifying his position before 2019 which he could do going into 2019 as a substantive incumbent. It is their belief that if this situation continues until 2019 with Buhari not likely to seek a second term, they are in a better position to defeat the Acting President (if he seeks to contest) or any other competitor for the APC presidential ticket.
Sure, a lot of discerning Nigerians understand the dark arts of politics and are really not against anyone scheming for higher office or scheming to keep anyone from taking higher office. Where we have issues is when people sacrifice our national integrity for selfish personal gains. Today, we have become a laughing stock around the world. There is no reason keeping President Buhari in a position where he cannot practically act because of illness. The charade needs to stop. The constitutional provisions to declare the Acting President the substantive President need to be activated.
The reason the President himself has not made that necessary decision to put his health and treatment above everything else, including above clinging to power, is because he has family and friends who are equally selfish. They cannot countenance the idea that they would be out of the power loop if the President resigns, they cannot bear the thoughts of not enjoying all the privileges that come with being close to the presidency; they know that if he resigns, they would be out of Aso Rock. It is for this selfish reason too they are behaving as though they are supporting the President. But in truth, they are like vampires sucking his blood. I’m not even concerned about their patriotism or love for the country; but, if they truly love the man, they would know the best course of action is for him to resign, so they can go quietly take care of his health without any distractions. At this rate, even if it means stuffing the lifeless body of the President on the presidential seat just to give the impression he’s still President, they will do so.
So, as much as it is unfortunate that the President is in this situation (and the whole nation prays for his eventual recovery), Nigeria is bigger than anybody. If he loves Nigeria, he needs to let go. He needs to let the country get on with dealing with its many challenges with a substantive leader on the saddle. That is the message of all those protesting and every patriotic Nigerian must fully support the call for him to resign. We need to stop this farce of his stop-start resumptions. If he does not resign, let’s save him from himself by insisting that the executive council of the Federation do their constitutional duty. Of course, it’s possible that even if we force the council to take the vote, they might, for the selfish reasons highlighted above, not make the determination that the President is incapable of performing his duty, but at least by then we would be sure that they have nailed their colours to the mast of infamy and we will take note of that for the future. Whatever the situation, what anyone in power now ought to know is that no one can hold Nigeria and Nigerians to ransom for too long. That is what our history proves. Yes, they can be guaranteed that the evil forces holding our nation down will surely, surely be defeated.
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