It is no longer news that the President of the Federal Republic of Nigeria, President Muhammadu Buhari travelled for medical vacation on the 7th of May 2017. What seems to be new even though there are pockets of calls especially from the Governor of Ekiti State Mr. Ayodele Fayose and his PDP colleagues is the recent peaceful protest by a group of concerned Nigerians under the auspices of “our mumu don do movement” led by Charles (Charly Boy) Oputa for the return or resignation of the President. The trip, described as a “scheduled medical follow-up,” was two months after President Buhari returned to Nigeria from an earlier trip to London precisely on March 10, 2017 which lasted for 49 days. His office has not provided us till date a definite time frame for which the President would return to his duties. We may however recall that the last time the President returned from his medical trip, he was rarely seen. When he left on the current visit, his length of stay as we were informed would be determined by his London doctor’s advice. The President’s current visit to London is his fourth medical vacation to the United Kingdom since his inauguration on May 29, 2015. Visits have been paid by the Vice President and some selected Governors at different times recently, and they each returned with assurances of improvement in the health of the President and a promise of his return to duty soon.
By the provision of Section 145 of the 1999 Constitution of the Federal Republic of Nigeria, as amended (hereinafter the Constitution), The President shall transmit a letter to the Senate before embarking on his medical vacation, and 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 the National Assembly a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President. The President of the Senate, Dr. Bukola Saraki, read the letter transmitted by the President, dated May 5, 2017, at plenary and announced that its transmission to the senate was in accordance with Section 145(1) of the 1999 Constitution. The letter was greeted with a point of order which raised controversial dust in the domain of the Nigeria political and legal cycle by the PDP Senator representing Abia North, Senator Mao Ohuabunwa who expressed concern that the letter was not explicit on whether or not the Vice President would work in acting capacity in Buhari’s stead. He was ruled out of order by the Senate President who following the reaction of the Deputy Leader of the Senate, Bala Ibn Na’Allah, said that the letter was clear on the transmission of power from the President to the Vice President. Hence, it is settled fact that the President has done what is required of him by the Constitution.
The recent call by a group of protesters in Abuja demanding the return to the country or resignation of President Muhammadu Buhari has taken a centre stage with the sharp swipe by the aids of the President and even the Senate. The group called on the Senate to implement Section 144 (4) of the Constitution by setting up a medical panel to carry out an examination and verification on the health of the President. While peaceful protest is a right guaranteed by the Constitution under Sections 39 and 40 of the 1999 Constitution as well as Article 11 of the African Charter on Human and Peoples’ Rights, the right to assemble freely cannot be violated without violating the fundamental right to peaceful assembly and association. In IGP V ANPP (2008) 12 WRN 65, the Court of Appeal affirmed the judgment of the court below and held that rallies and demonstrations are part of the fundamental right to freedom of expression which cannot be curtailed by the police. Hence, to the extent that the Police interrupted the group is in my view a violation of the clear provision of the aforementioned Sections. Counter group springing up is still not an issue so long as it is within the bounds of the law and not in contravention of the Constitution.
The crux of the matter here is the misunderstanding of the Constitution by the various groups that have for one reason or the other hinged the call for the President’s resignation on health ground. The current situation differs from the Yar’Adua circumstance where power was not transmitted to the vice President. In the instant case, power had already devolved to the vice President pending the return of the President by virtue of the letter transmitted to the Senate. At best the call for resignation of the President should be on the basis of morality which is in my view an honourable path for the President to tread in a Nation where leaders menacingly hold on to power, if he knows as speculated that he can no longer carry out his duties as President. However, from the angle of what is legally required, the President has done all the law required of him to do. While treating the doctrine of necessity and amending the constitution, It is the duty of the Legislators to make laws, and the drafters of the Constitution never averted their minds to how long a sick President can be away on the ground of ill health or any other reason. Since the Constitution is silent on that, there is nowhere in the whole gamut of our laws that give credence to the call for the President’s resignation or return back to the country, and it must be understood that the Federal Government is functioning in the absence of the President through the office of the Vice President in an acting capacity, in which case, the call for the President’s resignation is a matter in the realm of mere morality, as even if he retires, by the provision of section 146 of the Constitution, it will still be the Vice President that will fill the vacuum.
To understand it better, Sections 144 of the 1999 Constitution is reproduced below
(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.
A bird’s eye view of the Section cited by the group and from the totality of the provisions, show that the appropriate body to declare the President or Vice incapable of performing his duties are the members of his Executive Council, not the wishes of any group, or private individual. It is however a mind bugling question whether the Ministers have such moral consciousness to “bite the finger that feeds them”. They will only have that temerity for the truth, if they start realizing that though they were appointed by the President, but they owe more duty to the citizenry than to the President and the fear for pecuniary or selfish interest should not becloud their sense of rational judgment and allegiance to the Nation.
While the call for the President’s resignation seem to be taking centre stage which by all standard of the present circumstance is otiose in the Constitution , I wish to call on the protesters and all seeking the Presidents removal or resignation, to work within the ambits of the Law, and realize that the same Constitution that gave the right to peaceful assembly also stipulates the proper thing the President should do before embarking on such trip and also the authority to declare the President incapacitated. While we urge the body of Ministers, to take the interest of the citizens as primary, and act within reasonable context, the call for the President’s resignation by way of protest is totally rooted in morality considering that there is nothing to hold on to and we should rather appeal to consciences than trying to take it by force as no vacuum can be reasonably said to have been created with the Vice President piloting the affairs of the nation.
Francis Ojima Akoji Esq (firstname.lastname@example.org) is a Lagos based Legal Practitioner and social and Political Commentator.
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