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Constitutional succession in a presidential indisposition

President Umaru Yar’Adua, has been out of the country for the past 46 days on medical treatment in Saudi Arabia. While away, the country seemed to have grinded to a halt, even though those in government will tell you that all is well. Against the clamour for Vice President Goodluck Jonathan to be sworn- in as the Acting President, Festus Okoye, examines the succession issue as provided in the 1999 constitution.

Those that framed the constitution of the Federal Republic entrenched some fundamental pre-requisites to guide discussions and decisions relating to the health of the President and succession to the said office.  They recognised the fact that the President is human and has the capacity to fall ill and seek medical attention.

They recognised the fact that such a medical condition may lead to inability to discharge the functions of the office of the President. It is on the basis of this realization that they categorized medical condition into two. The first may just be temporary indisposition in which case the President may still retain control of the machinery of government while attending to his health.

Coterminous to this is that the President may decide that a small medical condition may become life threatening and result in fatal consequences if not properly and comprehensively addressed. He may, based on this decide to devote all his time and attention in addressing his health condition.

To avoid the distractions and burden of office, he may hand over the machinery of governance to the Vice-President after notifying the President of the Senate and the Speaker of the House of Representatives of the fact that he is proceeding on vacation on medical grounds. In such circumstances, the Vice President becomes the Acting President pending the return of the President.

The framers of the Constitution also recognise the fact that the President may on his own volition and depending on the circumstances of his medical condition throw voluntarily had over to the Vice President who becomes the President. This may happen if the President has on his own, assessed his capacity and capability to continue in office and may decide not to worsen his condition with the burden of office.

The more serious provision in the Constitution envisages two scenarios. The first is a situation where the President is permanently incapacitated and insists on clinging to power. The second envisages a situation where the President is incapable of making a determination on whether he should or should not resign.

In all the scenarios painted, one indisputable fact is that the right of the people to know and be informed of the state of health of their President is firmly entrenched. It is in their exercise of the right to know that some Nigerians who have watched the President in the last two years believe that the state of his health has not allowed him give Nigerians the best that he is capable of offering and are therefore insisting that he should voluntarily resign.

In a constitutional democracy, such robust discussions are healthy and remind public officers that they hold power in trust for the people and that sovereignty resides with the people through whom governments derive their authority and legitimacy.

However, such discussions must also take into consideration that someone fighting to remain alive deserves our sympathy and empathy. It must take into consideration that humane considerations demand that our thoughts remain with such an individual and that his recovery should be the paramount concern of well meaning persons. It must also take into consideration the fact that the President in this instance is the Commander in Chief of the Armed Forces of the Federation and his state of health is a private matter laced with serious national security concerns.

Unfortunately, we have avoided the prerequisite constitutional and political question necessary for a full determination of the question that will guide people in making a determination on whether the time is ripe to call for the resignation of the President or the activation of the constitutional machinery that may lead to his resignation. The question is whether the President had the requisite mental and physical capacity to affect a constitutional and legal transfer of power through the Senate of the Federal Republic of Nigeria to the Vice President at the point of his departure.

My take on this point is that someone in trouble with his health may be in a state of panic and confusion and may only be thinking of survival and not state matters. Someone battling with his life may not be in a good state to dictate a letter or even make a serious determination on who takes over in his absence.

The present state of things relating to the health of the President and constitutional succession to the office in the absence of the President leaves the country with four options. The first option is to wait patiently and pray for the recovery of the President believing that the Personal Physician of the President told the truth regarding his state of health.

This envisages that the President will recover and come back to Nigeria and continue to perform the functions of state. This option is also predicated on the assumption that the President is using modern means of technology to perform state functions while out of the country.

The second option envisages that the Present is fully aware of his present circumstances and in control of his faculties. It envisages that he is in constant dialogue with his medical team and may make the deduction that his treatment may take long and decide in the circumstances to activate the provisions of section 145 of the Constitution by transmitting to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is otherwise unable to discharge the functions of his office on account of ill health.

In this circumstance, the Vice President assumes office as Acting President. The third option envisages that the President is aware of his circumstances and has been informed by his medical team that he may be unable to continue in office. In such circumstances, the President can resign voluntarily from office in accordance with the provisions of section 146 of the Constitution. In such circumstances, the Vice President assumes the office of the President.

The last option envisages two inter related circumstances. The first is that the President is in such a state that he does not understand what goes on around him and unable to discharge the functions of his office. The other scenario is that the President is aware of his circumstances but is in a permanent state of incapacity. In these two scenarios, the President holds onto power and refuses to relinquish office.

This may lead to the activation of the provisions of section 144 of the Constitution. In this instance, those working with the President as members of the Federal Executive Council might have noticed that the President is no longer capable of discharging the functions of his office. They may in the circumstances by a resolution passed by two thirds of the members declare that the President is incapable of discharging the functions of his office.

This declaration must then be verified, after such medical examination as may be necessary by a medical panel appointed by the President of the Senate and comprising five medical practitioners in Nigeria one of whom shall be the personal physician of the President 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 examination to be conducted.

Where the medical panel certifies that in its opinion the President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office a notice to that effect 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. As from the date of such publication, the President shall cease to hold office and the Vice President assumes office as President.

However, if the office of the Vice President is vacant within this period, the President of the Senate shall assume the office of President for a period not more than three months during which there shall be election for the unexpired residue of the remaining term of office.

The next issue revolves around the time and circumstance that may lead to the activation of section 144(1) (a) of the Constitution by the members of the Federal Executive Council. This envisages knowledge by members of the Federal Executive Council that the President is incapable of discharging the functions of his office and yet they are refusing to act. In such circumstances, it may be possible to use the machinery of the Court to compel them (after a reasonable time) if those that want the process activated have some concrete medical information  and evidence that the President is incapable of discharging the functions of his office.

A combined reading of the provisions of section 133, 144, 145 and 146 of the Constitution regarding the death of the President, his resignation from office, his impeachment from office or his permanent incapacity makes it clear that if any of the events mentioned therein occurs, the Vice President assumes office automatically as President. The framers of the Constitution did not want a vacuum in government. They did not want to leave room for power struggle which may throw the nation into confusion. They did not want the Vice President to just act as Acting President. They knew that things may be fluid during such periods and wanted a President to be in charge.

One thing that must not be overlooked is that the Vice President is a product of a political party and was thrown up by certain forces and institutions. The rebuttable assumption is that those forces were fully aware of the fact that the President is human and subject to human frailties and challenges. They must have chosen a Vice President that can step into the shoes of the President in case of death, resignation, impeachment or permanent incapacity.

The anxiety noticeable in the debates around the health of the President revolves around the fear that some individuals and forces may attempt to circumvent constitutional provisions relating to succession in the case of inability of the President to continue in office. The anxieties are also laced with the politics of the Nigerian nation and the whole question of the rotation of power. Fortunately those that framed the Constitution want such questions to be addressed at the expiration of the residue of the term of office of the last holder of that office.

Nigerians must begin the arduous process of building democracy supporting institutions. Nigerians place too much emphasis on the individual and individual capabilities in the running of public affairs. While individuals can make a huge difference in the fortunes of a country, such contributions can only be enduring if made within the ambit of democratic institutions which can propel sustainable development.


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