President Buhari with the Federal Cabinet members
As
President Muhammadu Buhari's illness leaves him confined in a London
hospital, Akintola Makinde here explains why the man must consider
himself unfit to continue with the mandate vested in him by the Nigerian
people. The deteriorating health of President Muhammadu Buhari and
consequential medical pilgrimage to the United Kingdom, which has
repeatedly kept him away from the country, has been a source of serious
debate in recent times. While some have argued that his absence has not
created any vacuum, having transmitted the requisite notice to the
National Assembly before his departure, and the Vice President validly
acting in such capacity, others argue that somehow, the President’s
continued absence has affected the smooth sail of government, since
certain categories of executive functions cannot be validly delegated.
The latter school of thought has gone further to posit that should
the President be absent for a continuous period of 90 days, he stands
removable. The issue is no longer strange in our polity, as a similar
controversy had marred his earlier absence at the beginning of the year.
Also, the drama that heralded the demise of Umaru Yar’Adua bears a
comparable storyline. It is therefore undeniable that the same is
deserving of a thorough consideration. This article, therefore, sets out
to, amongst sundry things, consider the legal plausibility of the
various positions with a view to objectively analysing the relevant
provisions of the law as they relate to the current quagmire. It shall
also attempt to answer the following questions:
- Does the law actually place a timeline of 90 days, beyond which the President must not remain away from the country?
- Can an Order of Court compel the Federal Executive Council to declare that the President is incapable of discharging the functions of his office?
- Under what circumstance will the President be declared to be permanently incapacitated in the discharge of the functions of his office
Being a country which pillars are rooted in its constitution and
which constitution has clearly provided in Section 1 (2) that she shall
only be governed in accordance with its provisions, all analyses
regarding its government and governance must, therefore, have their
anchor on the constitution.
For the Vice-President to act in the President’s stead, Section 145
mandates the President, when proceeding on vacation or for any reason
becomes unable to discharge the functions of his office, to transmit a
letter to that effect to the leadership of both arms of the National
Assembly. As a way of guarding against a repeat of the Yar‘Adua-
Jonathan episode of 2010, subsection 2 of the same section goes further
to empower the National Assembly to mandate the Vice-President to step
into an acting capacity as the President, if after 21 days of the
President’s absence, he is unable or unwilling to transmit the requisite
written declaration to the National Assembly. The constitution in the
whole of its 320 sections and seven schedules, is however silent on the
number of days that could be spent by the President upon proceeding on
such vacation. For this reason, recourse shall be made to relevant
legislation on the subjects of leave, holidays and vacations.
Section 18 of the Labour Act entitles every worker who has served
for a continuous period of 12 months to at least six working days of
annual leave with full pay. The Act has however excluded persons
exercising administrative, executive, technical or professional
functions as public officers, from its definition of ‘worker’. As such,
Section 18 of the Labour Act will not be apposite in the circumstance.
The Public Service Rules, subject to the provision of the
Constitution, regulates the conduct of all public officers, inclusive of
the President. Chapter 10 of the Rules entitles a public officer to a
number of leaves, which include annual and sick leaves. For an officer
within the cadre of Grade level Seven and above, such is entitled to an
annual leave period of 30 calendar days. Such is also entitled to sick
leave, which is merely defined by the Rules as the absence of an officer
from duty on account of ill-health as authorised by a health care
provider. The provision on the category of health care provider-whether
local or foreign as well as the duration allowable for such leave is
however left open by the Rules.
While still trying to rationalise the issue of 90 days, one may be
tempted to assume that the 30 days allowable for each year could be
aggregated in the President’s favour, from the period of 2015 when he
assumed office to 2017, thereby making 90 days or from 2016 (when he
strict senso became entitled to annual leave) to 2017, thereby equalling
a period of 60 days. This reasoning will, however, be flawed by the
provision of Section 2 of Chapter 10, which provides that any leave not
taken within the calendar year concerned will be forfeited as no officer
will be allowed to accumulate leave.
The foregoing section, with utmost respect, therefore renders the
question of 90 days or 60 days as suggested by some analysts, elusive.
Further, while one could safely have claimed that the President would
not be entitled to more than 30 days in a given year, such argument
would remain untenable since he is on sick leave and the law,
considering the uncontrollable nature of ill-health, has not provided
for a specific number of days beyond which he may not be away on account
of ill-health.
In the present circumstance, it appears that the only persons whom
the law vests with the prerogative of addressing the current milieu are
the body of ministers which constitute the Federal Executive Council.
According to Section 144, the removal process based on incapacity, like
in the current situation, will only commence when a two-thirds majority
of the members of the body of ministers declare that the President is no
longer capable of performing his function. According to the provision:
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.
From the tenor of the above provision, the employment of the word
“if” is clearly indicative of a large measure of discretion on the side
of the members of the executive council. According to the
Merriam-Webster Dictionary, the word “if” is synonymous to the
expressions -‘in the event that’, ‘allowing that’, ‘on the assumption
that’, or ‘on condition that’. Grammatically, these imply that whenever
there is an “if”, then a situation of an “if not” is invariably
contemplated.It, therefore, implies that the members of the executive
council may equally elect to exercise their discretion in favour of not
declaring (by a two-third majority, or whatever majority) that the
President or vice president is incapable of discharging the functions of
his office.This is more so, as the law is silent on the definition of
the term ‘permanent incapacity’ and no judicial authority in sight has
pronounced on the level of incapacitation or illness that may warrant a
declaration that the president is no longer capable of performing the
function of his office. To this extent, the determination of the
question, whether or not the President has become incapacitated, still
lies in the subjective interpretation of the members of the Federal
Executive Council.
Gratefully, a group has recently approached the court with a view
to activating the provision in question. They have by way of an
Application for an Order of Mandamus, prayed the Federal High Court to
compel the Federal Executive Council to declare that the President has
become unfit to continue to hold office.
Meanwhile, it is the writer’s humble opinion that President Buhari
toes the path of care and honour, by tendering his resignation, if
guided by his conscience, he honestly considers himself unfit to
continue with the mandate vested in him by the Nigerian people. It is
absolutely out of place to run a government by proxy. Laying this rare
precedence will go a long way in saving the nation of the current
dilemma and affording him the ample space of caring for his health
without the unwarranted public snoop.
It is also pertinent for the ministers to understand that they owe
their loyalty first, to the Federal Republic of Nigeria and its
constitution, and then, any other interest. They are therefore advised
to take the bull by the horns by doing the needful if the circumstances
have honestly called for it. Bearing in mind that their patriotism is
currently under trial, stakeholders must all act in the consciousness of
an impending judgment by posterity.
****
Makinde, a lawyer and public affairs analyst, based in Abuja wrote in via jtolamakinde@gmail.com
0 comments:
Post a Comment