A legal analysis of issues arising from President Buhari’s absence.
The deteriorating health of
the President and consequential medical pilgrimage to the United
Kingdom, which has repeatedly kept him away from the country has been a
source of serious debates 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 has gone further to posit that
should the President be absent for a continuous period of ninety days,
he stands removable.
The issue is no longer strange in our polity, as the similar
controversy had marred his earlier absence at the beginning of the year
2017. Also, the drama that heralded the demise of Musa Yar’Adua bears a
comparable storyline. It is therefore undeniable that 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 analyzing the relevant provisions
of the law as they relate to the current quagmire. It shall also attempt
to answer the following questions:1. Does the law actually place a timeline of 90 days, beyond which the President must not remain away from the country?
2. Can an Order of Court compel the Federal Executive Council to declare that the President is incapable of discharging the functions of his office?
3. 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 analysis regarding its government and governance must, therefore, have their anchor on the Constitution.
DOES THE PRESIDENT HAVE 90 DAYS?
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 ‘Adu- 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 legislations 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 twelve 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 would not be apposite in the circumstance.
The Public Service Rules, subject to the provision of the Constitution, regulates the conducts 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 of the cadre of Grade level Seven and above, he 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 authorized by a Healthcare 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 rationalize 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 favor, from the period of 2015 when he assumed office to 2017, thereby making 90 days or from 2016 (when he stricto senso became entitled to annual leave) to 2017, thereby equaling 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 the 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.
THE FEDERAL EXECUTIVE COUNCIL AND PERMANENT INCAPACITY OF THE PRESIDENT
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-third 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-
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 favor 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.
According to the Supreme Court in OHAKIM V.AGBASO (2010) 19 NWLR (Pt. 1226) 172 S.C, an order of mandamus is an order issued by a court of law, usually the High Court to compel the performance of a public duty in which the person applying for same (mandamus) has sufficient legal interest. Over time, the courts have reiterated that when the obligor is allowed some discretion by the law imposing the duty, an order of mandamus will not lie to compel the performance of the duty in a specific manner, whether affirmatively or negatively. In ASSOCIATED DISCOUNT HOUSE LIMITED v. THE HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ANOR. (2013) LPELR-20088(SC), the Supreme Court held that if the duty imposed by a statutory provision leaves a discretion in whom it is imposed as to the mode of performance, mandamus will not issue to compel performance of that duty in a specific way. Applying this all time position of the law to the instant fact implies that the farthest the court may go, is ordering that the Federal Executive Council makes a declaration whether or not the president is fit to exercise the function of his office; and not for the court to compel the Federal Executive Council to declare that the President has become unfit to continue to hold office. This opinion is however not intended to preempt the court and is absolutely subject to its wisdom.
The foregoing are clear pointers to the fact that the Constitution is replete with ambiguities and lacunae which the current constitutional amendment process must address. Few of these include:
1. That beyond the requirement to transmit a written declaration to the leadership of the Legislature as provided in Sections 145 and 190 of the Constitution, the Constitution must be clear on the maximum period allowed for leave of absence, or inability to perform the functions of an office.
2. That the term ‘permanent incapacity’ as employed in sections 144 and 189 of the Constitution be clearly defined in Section 318 of the Constitution (the definition section).
3. That hinged on (2) above, the Federal Executive Council be compelled by the Constitution, within a specific timeframe, to make the requisite declaration that an office holder has become unfit, upon the occurrence of the circumstance defined; or in the alternative, a more realizable provision which fixes the duty of making the requisite declaration on a more neutral body like the body of governors or Council of State may be adopted.
Meanwhile, it is the writer’s humble opinion that President Buhari toes the path of care and honor, 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 horn 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.
Akintola Makinde is a lawyer and a public affairs analyst. He writes from Abuja.
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