One characteristic of the Law that remains unchanged is that it
stays firm to illuminate the misty paths of its subjects. It must
be pointed out that there is no pardonable justification for a
wanton and salvage destruction or the deceitful construing of the
Constitution. The National Assembly, all Pro-Buhari supporters, and
paid loyalist have continuously alleged that the President’s action
of transmitting a letter to the Speaker of the House of
Representative and the President of the Senate to embark on an
unspecified health leave is within the tenor of Section 145 of the
Constitution. But unlike that misleading fallacy, the constitution
itself preaches another gospel. As far as Section 145 is concerned,
it can neither be used as a means to cover up for a permanently
incapable President nor can it be used to sabotage the operation of
Section 144 which deals with the removal of the President.
Furthermore, it must be made asserverated in all gentility that
the current dilemma has escalated and leaped beyond the confines of
Section 145 of the Constitution of the Federal Republic of Nigeria
1999 (as amended) herein after referred to as CFRN.
Section 145 reads: “whenever the President transmits to
the President of the Senate and the Speaker of the House of
Representative 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”. The above
provision, without any prejudice, applies to instances where the
president decides to take a temporary vacation or is faced with a
short lived circumstance which renders him unable to properly
execute a particular executive function as the president. Hence,
the constitution provides that in such an august situation, the
Vice-President assumes the mantle as Acting President. The final
step that must be taken to validate this procedure is the necesssry
transmission of a written declaration to the president of the
Senate and the Speaker of the House of Representative.
Section 145 of the constitution does not cover situations where
the president delegates to his entire functions to his Vice to
execute as the Acting President for a continuous or indefinite
period of time, it is obvious that most lawyers or legally oriented
person have construed the phrase “until he transmits to them a
written declaration to the contrary such functions shall be
discharged by the Vice-President as Acting President” as contained
in the section to mean that the section confers an authority on the
President to delegate his functions indefinitely to the
Vice-President. But that is not the case, instead the section only
provides for temporary instances where the President would bounce
back to his feet — not in situations where the President is
persistently on and off, and obviously incapable of properly
executing his duties.
Let us take a glance at the U.S Constitution — not forgetting
that our constitution is modeled after the U.S Constitution.
Section 3 of 25th amendment provides thus “Whenever the President
transmits to the President pro tempore of the Senate and the
Speaker of the House of Representatives his written declaration
that he is unable to discharge the powers and duties of his office,
and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice
president as Acting President”. Section 3 of the 25th amendment has
only been invoked 3 times when the U.S President had to under a
medical Procedure requiring general anesthesia. For instance, on
June 29, 2002, President George W. Bush underwent a colonoscopy and
chose to invoke Section 3 of the amendment, temporarily
transferring his powers to Vice President Dick Cheney. The medical
procedure began at 7:09 a.m. EDT and ended at 7;29 a.m. EDT. Bush
woke up twenty minutes later, and resumed his Presidential powers
and duties at 9:24 a.m. EDT. The same process was carried out again
by President Bush in 2007, where he invoked section 3 at 7:16 a.m.
EDT, and reclaimed his powers at 9:21 a.m. EDT. In as much as we
are not bound by the U.S Constitution, it would only be reasonable
to construe that such exceptional break provided for the President
is not meant to last for an untold or indefinite period of time.
This is because the constitution states that the President must be
physically fit and be of a sound mind.
The obvious digest of the aforesaid section cannot be said to
envisage an instance of incapacity or situations where the
President is otherwise unable to discharge the function of his
office due to some permanently crippling circumstances (like
fragile health status). Another vital statutory authority is the
Public Service Rules- precisely PSR 070316 which stipulates that
the maximum aggregate sick leave which can be allowed an officer in
public service who is not hospitalized, during any period of 12
months shall be 42 calendar days. So far so good, the provisions of
the CFRN and the PSR were only properly invoked in June last year,
when the President proceeded on a 10-day holiday to treat an ear
infection. Thus, the 21st January- March 10, 2017, presidential
deceitful break is not within the purview of Section 145 and the
PSR. How much more his recently concluded indefinite health leave
which took him not less than 104 days outside the country. Despite
all attempts by the presidential media managers, Femi Adesina and
Mallam Shehu Garba and the Minister of Information, Lia Mohammed,
to hide and maneuver the actual critical health status of the
President.
Whereas on the other hand, the jurisdiction of Sections 144 and
146 (1) of the CFRN operates exclusively independent of the
provisions of Section 145 and the PSR. It must be stated that once
the jurisdiction of Section 144 is validly invoked, it would be
gravely erroneous and offensive to the constitution for anyone to
embark on dubious attempts to equally invoke Section 145. The
reason is because those two sections are mutually exclusive.
Section 144 provides thus
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 office; and The declaration is verified, after such
medical examination as may be necessary; by a medical panel
established 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.
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.
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.
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:-
one of whom shall be the 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 I the field of medicine relative to the nature of the
examination to be conducted in accordance with the foregoing
provisions.
In this section, the reference to “executive council of the
Federation” is reference to the body of ministers of the Government
of the Federation, howsoever called, established by the President
of and charged with such responsibilities for the functions of the
Government as the President may direct.
Firstly, the section applies to both the President and his Vice.
Secondly, only a two-third majority of the Executive Council is
required to kick off this process. Thirdly, the section does not
provide for the consent or awareness of the President or his Vice
before it is invoked, thus once it is confirmed that the
constitutional procedures have been complied with, then the holder
of the office concerned stands removed with or without his prior
knowledge. Fourthly, another crucial ingredient is that the
declaration of incapacity by the majority of Executive Council must
be verified by a medical panel set up by the President of the
Senate. Furthermore, a copy of the findings by the medical panel
must be signed and published on the official gazette by the
President of the Senate and the Speaker of the House of
Representatives. Lastly, the President or his Vice only ceases to
hold office in situations where the health status of the president
has rendered him “permanently incapable” of properly discharging
his functions.
Sadly, most people have erroneously restricted it application to
only instances where the president is totally incapacitated health
wise. According to The Oxford Dictionary of Law 6th Edition,
incapacity means “a lack of full legal competence in any respect”.
And according to Oxford Advanced Learners Dictionary, permanent
means “lasting for a long time or for all time in the future”.
Hence, for the medical panel to certify that the President or
Vice-President is permanently incapable could be interpreted to
mean the following;
The President or Vice-President is adjudged by the medical panel
to suffer from a totally incapacitating ailment which would render
him incapable of performing his functions indefinitely. or
The President or Vice-President is adjudged to be suffering from a
sickness/ailment which is of a frequently recurring nature, and
such ailment/sickness has certified by the medical panel is capable
of rendering the President or Vice-President Incapable.
Therefore, it would not offend any cannon of common sense to
state that the Executive Council could at least restore peace into
the country by simply invoking Section 144 (1) (a) CFRN. This is
due to many cumulative reasons. Firstly, the very fact that the
President of Nigeria had embarked on two medical emergencies breaks
this year. During the first break, the President spent close to 50
days outside the country battling with his undisclosed illness. And
the second unconstitutional break took him 104 days outside the
country. Also, during the interim period between his first and
second emergency health leaves, it was without a doubt that the
President was incapable of functioning. He was carefully kept
behind closed doors like a day old infant, and he even publicly
admitted being ill. In fact as at this week, it was published that
the President would be unable to utilize his Presidential office
due to the overwhelming damage cause by rats during his absence.
Nigerians can’t be fooled. We all know that the President is
currently battling with his health. Consequently, he can’t subject
himself to the running up and down duties of his office. And it is
really unpatriotic for anyone to come up with a childish or a very
lame story in an attempt to conceal the plain truth.
It should be noted that the Executive does not have to declare
that the President is “Permanently incapable” instead subsection
(1) only stipulate that they declare him incapable. Whereas, on the
other hand the medical panel could finally help us end this era of
oblivion which has ruled over the country.
The truth is that if the welfare of Nigeria is truly paramount
to both the ministers (who might be very mindful of their
positions) and the National Assembly, then the needful should be no
more than these positioned persons stop justifying gravely
detrimental situations in a bid to sustain partisan or political
alliances. Lastly, it must be stated that Section 144 is not
necessarily an end; It could also serve as a means for Nigerians to
finally discover the true health status of our President — this
because, the medical panel can rebut the declaration of incapacity,
and it must state the reasons for drawing such a conclusion.
Welcome back home Mr. President! When next are you traveling
back to London? When will your implanted rats cease from destroying
your office? Or will you decide to indefinitely stay at home
because those rats must be really dangerous?
Your Excellency! I hope you find your purpose soon! God
bless Nigeria.
AWODIMILA CHRISTOPHER
LEGAL WATCHMEN….ONE WORD AT A TIME.
One characteristic of the Law that remains unchanged is that it
stays firm to illuminate the misty paths of its subjects. It must
be pointed out that there is no pardonable justification for a
wanton and salvage destruction or the deceitful construing of the
Constitution. The National Assembly, all Pro-Buhari supporters, and
paid loyalist have continuously alleged that the President’s action
of transmitting a letter to the Speaker of the House of
Representative and the President of the Senate to embark on an
unspecified health leave is within the tenor of Section 145 of the
Constitution. But unlike that misleading fallacy, the constitution
itself preaches another gospel. As far as Section 145 is concerned,
it can neither be used as a means to cover up for a permanently
incapable President nor can it be used to sabotage the operation of
Section 144 which deals with the removal of the President.
Furthermore, it must be made asserverated in all gentility that
the current dilemma has escalated and leaped beyond the confines of
Section 145 of the Constitution of the Federal Republic of Nigeria
1999 (as amended) herein after referred to as CFRN.
Section 145 reads: “whenever the President transmits to
the President of the Senate and the Speaker of the House of
Representative 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”. The above
provision, without any prejudice, applies to instances where the
president decides to take a temporary vacation or is faced with a
short lived circumstance which renders him unable to properly
execute a particular executive function as the president. Hence,
the constitution provides that in such an august situation, the
Vice-President assumes the mantle as Acting President. The final
step that must be taken to validate this procedure is the necesssry
transmission of a written declaration to the president of the
Senate and the Speaker of the House of Representative.
Section 145 of the constitution does not cover situations where
the president delegates to his entire functions to his Vice to
execute as the Acting President for a continuous or indefinite
period of time, it is obvious that most lawyers or legally oriented
person have construed the phrase “until he transmits to them a
written declaration to the contrary such functions shall be
discharged by the Vice-President as Acting President” as contained
in the section to mean that the section confers an authority on the
President to delegate his functions indefinitely to the
Vice-President. But that is not the case, instead the section only
provides for temporary instances where the President would bounce
back to his feet — not in situations where the President is
persistently on and off, and obviously incapable of properly
executing his duties.
Let us take a glance at the U.S Constitution — not forgetting
that our constitution is modeled after the U.S Constitution.
Section 3 of 25th amendment provides thus “Whenever the President
transmits to the President pro tempore of the Senate and the
Speaker of the House of Representatives his written declaration
that he is unable to discharge the powers and duties of his office,
and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice
president as Acting President”. Section 3 of the 25th amendment has
only been invoked 3 times when the U.S President had to under a
medical Procedure requiring general anesthesia. For instance, on
June 29, 2002, President George W. Bush underwent a colonoscopy and
chose to invoke Section 3 of the amendment, temporarily
transferring his powers to Vice President Dick Cheney. The medical
procedure began at 7:09 a.m. EDT and ended at 7;29 a.m. EDT. Bush
woke up twenty minutes later, and resumed his Presidential powers
and duties at 9:24 a.m. EDT. The same process was carried out again
by President Bush in 2007, where he invoked section 3 at 7:16 a.m.
EDT, and reclaimed his powers at 9:21 a.m. EDT. In as much as we
are not bound by the U.S Constitution, it would only be reasonable
to construe that such exceptional break provided for the President
is not meant to last for an untold or indefinite period of time.
This is because the constitution states that the President must be
physically fit and be of a sound mind.
The obvious digest of the aforesaid section cannot be said to
envisage an instance of incapacity or situations where the
President is otherwise unable to discharge the function of his
office due to some permanently crippling circumstances (like
fragile health status). Another vital statutory authority is the
Public Service Rules- precisely PSR 070316 which stipulates that
the maximum aggregate sick leave which can be allowed an officer in
public service who is not hospitalized, during any period of 12
months shall be 42 calendar days. So far so good, the provisions of
the CFRN and the PSR were only properly invoked in June last year,
when the President proceeded on a 10-day holiday to treat an ear
infection. Thus, the 21st January- March 10, 2017, presidential
deceitful break is not within the purview of Section 145 and the
PSR. How much more his recently concluded indefinite health leave
which took him not less than 104 days outside the country. Despite
all attempts by the presidential media managers, Femi Adesina and
Mallam Shehu Garba and the Minister of Information, Lia Mohammed,
to hide and maneuver the actual critical health status of the
President.
Whereas on the other hand, the jurisdiction of Sections 144 and
146 (1) of the CFRN operates exclusively independent of the
provisions of Section 145 and the PSR. It must be stated that once
the jurisdiction of Section 144 is validly invoked, it would be
gravely erroneous and offensive to the constitution for anyone to
embark on dubious attempts to equally invoke Section 145. The
reason is because those two sections are mutually exclusive.
Section 144 provides thus
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 office; and The declaration is verified, after such
medical examination as may be necessary; by a medical panel
established 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.
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.
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.
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:-
one of whom shall be the 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 I the field of medicine relative to the nature of the
examination to be conducted in accordance with the foregoing
provisions.
In this section, the reference to “executive council of the
Federation” is reference to the body of ministers of the Government
of the Federation, howsoever called, established by the President
of and charged with such responsibilities for the functions of the
Government as the President may direct.
Firstly, the section applies to both the President and his Vice.
Secondly, only a two-third majority of the Executive Council is
required to kick off this process. Thirdly, the section does not
provide for the consent or awareness of the President or his Vice
before it is invoked, thus once it is confirmed that the
constitutional procedures have been complied with, then the holder
of the office concerned stands removed with or without his prior
knowledge. Fourthly, another crucial ingredient is that the
declaration of incapacity by the majority of Executive Council must
be verified by a medical panel set up by the President of the
Senate. Furthermore, a copy of the findings by the medical panel
must be signed and published on the official gazette by the
President of the Senate and the Speaker of the House of
Representatives. Lastly, the President or his Vice only ceases to
hold office in situations where the health status of the president
has rendered him “permanently incapable” of properly discharging
his functions.
Sadly, most people have erroneously restricted it application to
only instances where the president is totally incapacitated health
wise. According to The Oxford Dictionary of Law 6th Edition,
incapacity means “a lack of full legal competence in any respect”.
And according to Oxford Advanced Learners Dictionary, permanent
means “lasting for a long time or for all time in the future”.
Hence, for the medical panel to certify that the President or
Vice-President is permanently incapable could be interpreted to
mean the following;
The President or Vice-President is adjudged by the medical panel
to suffer from a totally incapacitating ailment which would render
him incapable of performing his functions indefinitely. or
The President or Vice-President is adjudged to be suffering from a
sickness/ailment which is of a frequently recurring nature, and
such ailment/sickness has certified by the medical panel is capable
of rendering the President or Vice-President Incapable.
Therefore, it would not offend any cannon of common sense to
state that the Executive Council could at least restore peace into
the country by simply invoking Section 144 (1) (a) CFRN. This is
due to many cumulative reasons. Firstly, the very fact that the
President of Nigeria had embarked on two medical emergencies breaks
this year. During the first break, the President spent close to 50
days outside the country battling with his undisclosed illness. And
the second unconstitutional break took him 104 days outside the
country. Also, during the interim period between his first and
second emergency health leaves, it was without a doubt that the
President was incapable of functioning. He was carefully kept
behind closed doors like a day old infant, and he even publicly
admitted being ill. In fact as at this week, it was published that
the President would be unable to utilize his Presidential office
due to the overwhelming damage cause by rats during his absence.
Nigerians can’t be fooled. We all know that the President is
currently battling with his health. Consequently, he can’t subject
himself to the running up and down duties of his office. And it is
really unpatriotic for anyone to come up with a childish or a very
lame story in an attempt to conceal the plain truth.
It should be noted that the Executive does not have to declare
that the President is “Permanently incapable” instead subsection
(1) only stipulate that they declare him incapable. Whereas, on the
other hand the medical panel could finally help us end this era of
oblivion which has ruled over the country.
The truth is that if the welfare of Nigeria is truly paramount
to both the ministers (who might be very mindful of their
positions) and the National Assembly, then the needful should be no
more than these positioned persons stop justifying gravely
detrimental situations in a bid to sustain partisan or political
alliances. Lastly, it must be stated that Section 144 is not
necessarily an end; It could also serve as a means for Nigerians to
finally discover the true health status of our President — this
because, the medical panel can rebut the declaration of incapacity,
and it must state the reasons for drawing such a conclusion.
Welcome back home Mr. President! When next are you traveling
back to London? When will your implanted rats cease from destroying
your office? Or will you decide to indefinitely stay at home
because those rats must be really dangerous?
Your Excellency! I hope you find your purpose soon! God
bless Nigeria.
AWODIMILA CHRISTOPHER
LEGAL WATCHMEN….ONE WORD AT A TIME.