The National Assembly may have a hard time if it ever considers impeaching President Muhammadu Buhari for being away from office on health grounds, amid heightening concerns on the president’s long absence from work and secrecy around his health status.
Contrary to media speculation that President Muhammadu Buhari is restricted by the Constitution to straight 60 days absence from work, which when exceeded could result in an impeachment notice being served on him, the President can stay off-duty indefinitely, as far his Deputy is left in charge, say lawyers.
President Buhari would have completed 60 days away in London on July 7, 2017, on sick leave, which he embarked on May 7.
Victor E Ibharalu, principal counsel and head of chambers, V.E. Ibharalu & Co, barristers and solicitors, said there is nowhere in the 1999 Constitution as amended, where it is stated in clear terms that a sitting Nigerian President has 60 days grace period to be off-duty and violation could amount to illegality.
Ibharalu said the President has already played safe by adhering to Section 145 of the Constitution, which provides that “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”.
According to him, the arguments in some quarters that Yemi Osinbajo, Vice President, who has been Acting as President since his boss left for the UK, cannot take certain decision like hiring and firing of un-performing senior government workers; cabinet reshuffle, among others, because he has not been sworn-in as Acting President, are baseless, saying that he (Osinbajo) has already taken the oath of office as Vice President, which in turn qualifies him to weigh presidential powers in the absence of the President.
Explaining further, he said the restraint of the Acting President is not in any way constitutional, but that of Nigeria’s geopolitical structure, ethnic and religious sentiments.
“Osinbajo is Acting. A letter was sent to the National Assembly by the President to that effect. He does not need to be sworn-in in another ceremony by the lawmakers before he can weigh presidential powers. The constitution did not say he should take an oath; but a letter to the NASS from the President. He can only take another oath if the President dies.
“Osinbajo can fire anybody as Acting President. The Constitution does not agree with anyone saying he cannot fire. He can fire constitutionally, but politically he may decide not to.
As the Acting Commander in-Chief, he has the power to appoint the service chiefs. But he won’t be able to do it politically. Constitutionally, he has the power to swear-in screened ministers’ designate, but politically he may not want to do that. That is the thing we are talking about: politics and the law, where is the meeting point? If Osinbajo decides to weigh presidential powers, there are no consequences constitutionally, but there are consequences politically.”
Joe Nwokedi, a Lagos based lawyer, said Nigerians expecting impeachment procedure against the ailing President are ill-informed.
Nwokedi said the ambiguities created in the Nigerian Constitution are also part of the bane of the country’s political crises, adding that a situation where the sovereign law is silent on issues bordering how many days the President, or the Governor, as the case maybe, is expected to be away from the country before he is declared incapacitated, has created the current anxiety.
BusinessDay has been able to establish that only the Federal Executive Council (FEC) is empowered by law, to activate relevant sections of the 1999 Constitution (as amended), to put to rest the agitation over the health status of President.
The 1999 Constitution (as amended) does not provide a timeframe within which the President can be away on medical vacation, contrary to views expressed in some quarters that the President has a 60-day annual vacation.
Besides, the law makers who will be resuming from break on Tuesday are said to be divided over the possibility of invoking the Doctrine of Necessity, to enable Acting President Yemi Osinbajo serve as substantive President.
Demands for the true state of health of the President have intensified in recent times. Secrecy around his health status, especially since he travelled to an undisclosed London hospital for treatment of an undisclosed ailment, is fueling suspicions that the President may not be healthy enough to continue as the nation’s President and Commander-in-Chief of the Armed Forces.
But the Presidency on the other hand, has remained silent on the President’s return, insisting that the President has not breached any part of the constitution.
However, Presidency sources tell BusinessDay that the President is expected back in the country anytime “soon”.
According to the source, who does not want to be named, the President was supposed to return and celebrate the Ramadan festival with his family in his home town of Duara, Katsina State, but was advised by his doctor to stay back.
A week before the Presidency released an audio message of the President’s Sallah message to Nigerians. Ekiti State Governor, Ayo Fayose, had also alleged that President Buhari had been on life support in the last 20 days and had called for his resignation.
The President has been on medical vacation in London since May 7; the second of such in 2017 after a 49-day medical leave on the first quarter of this year.
Consequently, he has spent 58 days away on medical vacation as of July 4, 2017. Although Buhari transmitted a letter to the National Assembly, in compliance with Section 145 of the Constitution, the letter was however silent on the number of days or weeks or months that he will be spending in London or out of office.
When contacted, Presidential Spokesman, Femi Adesina, said he “will not respond to a matter that does not exist,” since it is not captured in the constitution.
Legal Luminary, Mike Ozekhome, a Senior Advocate of Nigeria (SAN) who spoke to BusinessDay on the matter, confirmed that it is not possible to oust the President from office on health grounds, except the members of the cabinet who he appointed, decide to rebel against them.
“The only other way of removing him is under section 143 and 144 of the constitution. And that is that a medical panel has to be set up without his own private medical practitioner. And the panel has to be set up on the recommendation of the Federal Executive Council, comprising of Ministers and this cannot happen because he is the one that appointed the ministers,” Ozekhome said.
Section 144(1) provides that, “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 Speaker of the House of Representatives.
According to Section 144(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.
Section 144(3) provides that “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.
Section 144(4) states that “The Medical panel to which this section relates, shall be appointed by the President of the Senate, and shall comprise of five medical practitioners in Nigeria – (a) one of whom shall be personal physician of the holder of the office concerned and 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.
The All Progressives Congress (APC) claimed at the weekend that the President was fast recovering from his illness, contrary to allegations that he has been on life support.
“We are glad to inform you that President Muhammadu Buhari is recovering in a very robust manner,” John Odigie-Oyegun, APC National Chairman, speaking after a meeting between the party’s National Working Committee (NWC) and state governors elected on the party’s platform, said.
“We hope he takes it easy and when he comes back, I have no doubt at all that we will have a new and active period of activities.’’
But many people seem not to believe these assurances on the President’s health.
Speaking to BusinessDay on the matter, a senator from the Peoples Democratic Party (PDP) maintained that Nigerians do not trust Presidency handlers, hence they doubt statements emanating from the state of power on Buhari’s state of health and his absence.
He said the Senate may be forced to invoke Section 144 of the Constitution due to the secrecy surrounding the President’s health.
“We may be forced to ask the Federal Executive Council (FEC) to declare that the President is incapable of discharging his functions if this secrecy continues,” the South-South senator ,who spoke on condition of anonymity said.
But another lawmaker who spoke to BusinessDay, dismissed rumours that the legislative body is contemplating using the ‘Doctrine of Necessity’ to remove President Buhari from office.
The APC senator who hails from one of the states in the North Central geopolitical zone, explained that since Osinbajo is already performing presidential duties, calls in some quarters to make him substantive President are unnecessary.
The National Assembly had in 2010 invoked the ‘Doctrine of Necessity’ to empower then vice president, Goodluck Jonathan to act as President, following the illness of late President Umaru Yar’Adua.
A lawyer, who does not want his name to be mentioned because of the sensitive and contentious nature of the issue, argued that the prevailing circumstance provides ample opportunity for Nigerians to strengthen institutions of government.
“Rather than discussing cosmetic issues, it is better to strictly adhere to the provision of the constitution. Does the law allow the absence, yes. Since he has complied with the provisions of the law.
“But beyond all legal issues, on whether the President should resign or not, is a matter of moral judgement. Of course, this scenario is putting to test, whether there are strong institutions or strong individuals? Are we really missing the President? He asked.
“There are precedence like in Belgium where their leaders are changed. From an objective point of view, with the absence of Buhari, nothing has gone amiss, because the Acting President is providing the leadership required, without any form of interference,” the legal source told BusinessDay.
ONYINYE NWACHUKWU, NATHANIEL AKHIGBE, ELIZABETH ARCHIBONG, KEHINDE AKINTOLA & OWEDE AGBAJILEKE
