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Teingo Inko-Tariah: In need of constitutional amendment for automatic removal of Presidents

Aso Rock

Teingo Inko-Tariah: In need of constitutional amendment for automatic removal of Presidents

by Teingo Inko-Tariah

President Muhammadu Buhari proceeded on a 10-day medical vacation on January 19, 2017 which ended up as a 49-day vacation following an extension by a letter dated February 5, 2017. This is not the first time Nigeria is having a President with serious medical challenges. The story of late Umaru Musa Yar’Adua is well known. He eventually died in office and was succeeded by Dr. Goodluck Jonathan, then Vice President of the country.

Considering the amount of political tension in the country in 2010 when the late Yar’Adua eventually passed on and the attempts to keep the country in the dark until the death of the President, it is rather worrisome that a very similar incident is being repeated. With the case of Yar’Adua, there were rumours about the ill-health of the President which were often countered by series of denials by Presidency sources until the worst happened. The same cycle of denials was replayed by the media personnel of President Buhari until the truth could no longer be hidden. It is now obvious that the President is critically ill even though the ailment he suffers is unknown to Nigerians.

At a time when Nigeria is grappling with a recession, the cost of funding incessant medical trips abroad and related expenses is definitely not welcome. This is particularly not acceptable for President Muhammadu Buhari who gave a false impression that his administration would stop top government officials from seeking medical treatment abroad. Moreover, it is an indication that the huge amount of money budgeted annually for the Aso rock clinic is really a waste of resources. Without a clear direction for Nigeria’s economy, the country is facing really austere times coupled with an uncertain economic future. The last thing Nigeria needs now is a President who needs to travel abroad on a regular basis for medical check-up or treatment.

As at the time of writing this piece, June 2, 2017 the President is away in London for ‘medical follow up’. The President left Nigeria on Sunday May 7, 2016 which means that he has spent a total of 75 days outside the country on medical grounds this year. It is worthy of note that even after the President returned from his first trip in March 2017, he took several days off to rest while his media aides worked hard to create an impression that he was working. He missed a number of the weekly Federal Executive Council meetings and at a point he was alleged to be working from home. All these point to the severity of his medical condition which has created a disturbing void and adversely affected the country. There are strong indications that the signing of the 2017 budget may have been delayed by the absence of the President. A number of other assignments are pending – notably the conclusion of investigations of allegations of corruption involving the suspended Secretary to Federal Government Mr. Babachir Lawal and DG of National Intelligence Agency Mr Ayo Oke.

By the provisions S. 146 of the 1999 constitution, the office of the President would become vacant under any of the following circumstances:

  • By death
  • Resignation
  • Impeachment
  • Permanent incapacity (medical grounds)

The prevailing circumstances have led to calls from citizens for the resignation of the President on medical grounds. However, the writer is of the view that this is not likely to happen knowing the ethno-centric & political intricacies that underlie politics in Nigeria.  The option of impeachment in the writer’s view is also not appropriate at this time. Thankfully, the constitution has made provision for situations such as the one Nigeria is currently facing. The relevant provision is s. 144 which for ease of reference is reproduced below:

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.

Unfortunately, it does not appear that the above provision will ever be triggered to remove a medically unfit President from office. The reason is that first, 2/3 majority of the Executive Council (the body of Ministers) need to declare that the President is incapable of performing the functions of his office. The persons who make up this category are persons who were directly nominated by the President and so are not likely to embark on such a mission that may be regarded as disloyalty to their superior or even a betrayal of trust.

Secondly, where the Senate President is of the same party as the President, there is likely to be a challenge of conflict of interest due to party affiliation. This would make it difficult for the person occupying the position of Senate President to commence the process of constituting a medical panel to examine the incumbent President in order to ascertain medical capacity, following the resolution of the Executive Council. This scenario played out during the term of late Umaru Musa Yar’Adua, who eventually died in office. At that time, the Senate President was of the same party as the President. Today, the Senate President is of the same party as the President. Obviously selfish interests, party loyalty and ethnic devotion have become a clog in the operation of the constitution.

In view of the challenges identified in the preceding paragraphs, it is the writer’s considered opinion that a constitutional provision that will operate automatically has become necessary. A good example of such a provision is s. 145 which provides as follows:

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.

By the said provision, once a written declaration is communicated by the President informing the legislative arm of government of vacation or inability to discharge the functions of his office, the Vice-President immediately assumes the role of Acting President. It does not matter whether or not the President ‘hands over’ power to the Vice-President in the written declaration. Such a provision is necessary to forestall a situation where the respected office of the President is left vacant and without any clear indication of who is leading the country, at any given point in time.

In the same vein, the writer is of the view that the constitution should be amended to create an ‘automatic’ arrangement under which the President will cease to hold office on medical grounds. Such a provision could read:

“if the President is unable to perform the functions of his office for medical reasons and is away from work for a cumulative period of 100 days within one calendar year, he ceases to hold office and the Vice President will automatically replace him and will be sworn in as President”.

Same should be applicable to State Governors. With this kind of provision in the constitution, there will be very little recourse to procedure that could be hindered by persons who refuse to take action as in the instant case where the Executive Council and Legislature have failed to invoke s.144 of the constitution despite glaring evidence that the President is unable to discharge the functions of his office and has been so incapable for some time now.

There is currently no limit to the number of days that could be taken as sick leave under the public service and civil service rules. However, in a year of 365 days, it is rather unreasonable in the writer’s view for the President to be out of office for more than 100 days on medical grounds. It simply means that the person is not capable or has become medically unfit. The stability of the country and the advancement of democracy require the existence of a sense of accountability by those who hold the highest public offices. The fact that a person is President should not mean that he can embark on endless medical vacations at will and without any form of checks.

History tends to repeat itself and it would be inexcusable to allow the country get enmeshed in political controversy having treaded a similar route before. An automatic constitutional provision would help to checkmate occurrences of this nature in future. In fact, it may deter those who know that they have a serious medical condition from seeking election to such offices knowing that there are limits to medical vacations. If this is not done, there will be no end to the ugly incidents of Presidents and Governors sitting tight in office despite incapacitation or inability to discharge the functions of the office they were elected to hold.

Teingo Inko-Tariah is the Managing Partner of Accord Legal Practice.

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