So much has been said and is still being said about President Muhammadu Buhari’s illness, his absence and the law. Broadly, there are four provisions in our laws that apply to this situation and all of them taken together are clear as par what should happen despite the attempt by some public commentators to give the impression that there is a lacuna or a loophole that renders the applicability of the law as it is impossible or doubtful. Three of these provisions are in the Constitution (sections 144, 145 and 146(1)) and the other is in the Public Service Rules - that is 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.
Let’s take a look at the constitutional provisions and see how they apply.
First, section 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”.
The commonest mistake some public commentators make about this provision is that they overstretch its application to cover a situation where the President is seriously ill when it is not meant to apply in that situation as there are other constitutional provisions for that eventuality - (sections 144 and 146(1)). The above provision applies only in two situations. The first is when the President is going on a vacation and the second is when he is otherwise unable to discharge the functions of his office when the reason for such is not a serious illness likely to render him incapable of discharging such functions.
So, when in June last year, the President proceeded on what the presidency said was a 10-day holiday, with a claim that he would be using the opportunity to treat an ear infection, no one had an issue with that because he did the constitutionally required thing, which was to transmit to the President of the Senate and the Speaker of the House of Representatives a written declaration that he was unable to discharge the functions of his office for that moment because he was proceeding to London briefly for the stated purposes. There was no issue as to when he would return or whether he would return to his post because no one was thinking an ear infection will render him incapable of performing his duty as president. In fact, the three issues of controversy relating to the matter at the time were, one, the fact that he was seeking treatment abroad when he himself has said during the campaign that he was cracking down on medical tourism and the practice of public officials seeking medical treatment abroad; two, the fact that he was travelling to London for such a minor medical issue that Nigerian doctors could have handled easily at home and three, the cost to Nigerian citizens and taxpayers of such treatment. Indeed, we all recall that the presidency actually engaged our own Professor Farooq Kperogi who raised issues over the matter when they claimed through Mallam Garba Shehu that it was only N20 million that was spent on the ear treatment.
Of course, knowing what we know now, it looks like the ear infection story was a cover for something worse. This is because before the President traveled out for that treatment, for weeks, he confined himself to the Villa and on a number of occasions canceled trips scheduled for outside the country and within. The Vice-President, Professor Yemi Osinbajo represented him in some of them. For instance, the Vice-President represented him in Papua New Guinea where the 8th Summit of the African, Caribbean, and Pacific Group of States was held and at the 48th Ordinary Summit of Heads of State and Government of the Economic Community of West African States (ECOWAS) which was held in Dakar, Senegal. We also recall that the President had to cancel a well-advertised trip to Lagos to inaugurate some projects executed by Governor Akinwunmi Ambode despite the elaborate preparation made by the Lagos State Government and his party, the APC to receive him as the trip was billed as some kind of platform for re-engagement with the South-West wing of the party after some internal disagreements. However, the most high-profile miss on the domestic front was the fact that he did not attend the much-publicised flag-off of the implementation of the UNEP Report on the cleaning up of Ogoniland and the Niger Delta. I even expressed an opinion then about why his miss was bad public relations for the government. Of course, at the time, we didn’t know he was ill, we only knew he was holed up in the Villa. Nonetheless, he left for that trip on the 6th of June 2016 and returned on the 19th of June 2016. So, constitutionally, everything went well even though Nigerians who questioned his decision to go abroad for such supposedly minor medical issue or the amount spent had a right to do so.
Then came January 2017 and once again the President traveled abroad and this time we were told it was for another 10-day vacation. We recall that even though the President’s letter to the National Assembly stated the vacation was to start on the 23rd of January 2017, the President was evacuated abroad two days earlier on the 21st of January. This lent credence to rumors that this was not a vacation, but a medical-related evacuation. We all were witnesses to how presidential media managers, Femi Adesina and Mallam Shehu Garba and the Minister of Information, Lai Mohammed mismanaged the information about the President’s condition, which led them to even begin to publicly engage with people vociferously over the issue. They kept saying the President was in London on vacation and that he was not in any hospital and he was not ill, even though they had stated that during the vacation he would do some “routine medical check-up.” They insisted he would be back to work by the 1st of February, 2017.
Now, up to this point, the President was still constitutionally in order, even though the lies about his condition were becoming increasingly untenable. In fact, most citizens were mainly concerned with how the President’s spokespersons mishandled information surrounding his absence up to that point. However, shortly before the 1st of February, we were then told that the President would be extending his stay indefinitely because he had to wait for the results of certain medical tests conducted. We could see that they were still building up on the lies. Obviously, because they had lied that he was only on vacation and that he was only using that opportunity of the vacation to do some routine medical tests, it was natural to continue that lie by claiming now that his inability to meet up with the 1st February date was because he had to wait for the test results. Terrible story, but that was what they told Nigerians. It was the excuse they gave for the President’s extended stay.
For the purposes of our analysis, we can see that at this point, even if we accept their excuses for the President extending his stay, the action he undertook under section 145 is no longer enough because we were now straying into medical reasons for his absence. Besides, the Constitution does not provide for the President being absent or being away indefinitely. I mean, one of the things the supporters of the President say is that this situation is different from that of President Umaru Yar’Adua because Buhari transmitted the necessary letter handing over to the Acting President to the National Assembly, but what they are not saying is that they have handled information about the illness itself rather poorly. They cannot continue to refer to the fact that he transmitted a letter as justification for staying away for this long on medical grounds. That letter is only useful where the President is expected back at his duty post shortly after, not in this kind of situation. Of course, if the President or his handlers had been forthcoming with Nigerians about the situation at that point, things would have been different because Nigerians would have given him more time and given him the benefit of the doubt as far as there is hope that he would recover fully and not be incapacitated from performing his duties for an unduly long time.
At any rate, when the President eventually returned on the 10th of March, it was obvious they couldn’t sustain the lies anymore because the President looked severely emaciated and disoriented in the little time the public saw him. More crucially, he himself spoke of how really sick he was, implying he had to take blood transfusions and so on, which altogether clearly points to some serious illness, even though he wasn’t disclosing what this is exactly. He then added ominously that he would soon be returning for more treatment in the UK. Meanwhile, between then and the 7th of May when he returned to the UK, he was hardly seen in public or in office. His handlers said he was working from home. Indeed, the only times Nigerians saw him were when he was scrambled to attend the Aso Rock mosque on Friday, the 5th of May (in order to quell the rumor that he was incapacitated) and when he received the girls freed from Boko Haram captivity on Sunday, the 7th of May. Even then, those watching him with the girls on television could see his condition was dire. A few hours after that he was once again evacuated to London. It’s now almost a hundred days he’s gone in this last instance.
So, clearly, at this point, section 145 of the Constitution is not applicable anymore because the matter is beyond mere vacationing. The President is gravely ill. The Constitution expects that a patriotic citizen occupying the position of the President would know when to resign to go take care of his health because that is indeed a personal decision considering all the circumstances. That is the purpose of the constitutional provision for resignation in section 146 which stipulates resignation as one of the circumstances under which the Vice-President should take over as substantive President in order for there not to be a vacuum in government. But rather than take that opportunity, the President and his handlers have left the Vice-President in an acting, ineffectual capacity while the nation suffers unduly.
Yet, the Constitution recognizes human selfishness and capacity for poor judgment where something is left to their discretion. That is why it vested the power to declare the President “incapable of discharging the functions of his office” in the hands of a collective of people at the highest level, people representative of the plurality of the country because of the way they are constitutionally appointed in line with the Federal Character principle.
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