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Why FG is afraid of tendering medical report on Yar’Adua’s fitness

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By Ise-Oluwa Ige
About 72 hours ago, radical Lagos lawyer, Mr Femi Falana introduced a new dimension into his legal quest to compel President Umaru Musa Yar’Adua, hand over, willy-nilly, his presidential powers to his Vice, Jonathanm Goodluck, on account of his inability to discharge the functions of his office.
Yar’Adua was diagnosed of suffering from acute pericarditis and has been on a French leave in the last 44 days allegedly receiving medical attention overseas.

Specifically, the Lagos lawyer invoked Order 43 Rule 2 of the new Federal High Court Rules to deliver seven fundamental questions otherwise known as interrogatories on the Attorney-General of the Federation, Chief Michael Kaase Andoakaa (SAN).

The interrogatories were delivered on Andoakaa (SAN), being the Chief Law Officer of the Federation by virtue of section 150 (1) of the 1999 Constitution of the Federal Republic of Nigeria

All the questions channeled to Andoakaa (SAN) through the court touched on whether or not President Yar’adua is suffering or not from infirmity of the mind or the body as envisaged by section 144 (1) (a) of the 1999 constitution which renders him permanently incapable of discharging the functions of his office on one hand and whether indeed he is really performing the functions of his office on his sick bed.

Falana wanted Andoakaa (SAN) to study carefully all the questions, mandatorily provide clear answers to each of them and produce relevant documents like genuine medical reports emanating from the hospital where Yar’Adua is presently receiving medical attention.

As at November 23 to sometimes December 20, 2009, all reports indicated that President Yar’Adua was receiving treatment at King Faisal Specialist Hospital in Saudi Arabia but there were conflicting information as to whether he is still in the hospital towards the tail end of last year.

There were even rumours that the Federal Government seemed not to be telling the whole truth about the nature of his ailment.

According to Dr. Oluyemi Badero and Dr. Ola Akinboboye, both of who are New York based award-winning cardiologists and American board certified doctors, they said treatment of acute pericarditis, the ailment Yar’Adua is allegedly  suffering from,  should take

Akinboboye, a nuclear cardiologist, explained that the Federal Government “has been deliberately vague” on the nature of President Yar’Adua’s ailment because “simple acute pericarditis treatment does not take too long in most people.

He argued that the President’s handlers may have just held back pertinent information about his medical conditions and the hospital where he is taking treatment because “if no surgical procedure is needed, the usual hospital stay is less than five days with medication.”

But Falana said he is not bothered by whichever hospital President Yar’Adua is receiving his medical attention.
He said all he wanted was that the court should compel Andoakaa (SAN), who has been sued on behalf of the Federal Government to produce a certified medical report from the doctor attending to him, attesting that he is indeed not suffering from either the infirmity of the mind or of the body rendering him permanently incapable to perform the functions of his office.

He said the interrogatories i.e (the seven questions) were the main pillars upon which his case, in court, was resting.
He said if the seven questions were persuasively answered and backed up with genuine documents emanating from qualified medical practitioner to the effect that Yar’Adua is still fit to govern as being mouthed by the Attorney-General of the Federation, he vowed that he would discontinue his case and push no more for his reliefs.

But the Attorney-General of the Federation, Chief Mike Andoakaa (SAN) who had earlier dismissed as unnecessary, sheer waste of time and energy, all the three lawsuits filed so far to compel Yar’Adua to activate the provisions of section 145 of  the 1999 constitution, is presently crying foul.

He said the request by Falana could not be granted.

He complained silently that acceding to his request would place the private life of President Yar’Adua in the public domain which he said is unfair.

He told the Chief Judge of the Federal high court hearing the case that he would file an objection to collapse all the interrogatories.

In fact, he backpedalled on his earlier agreement to allow the court roll together both his preliminary objection with Falana’s main case.

He said he would not answer his questions except and until the court first deliver a well considered ruling on the locus standi of Falana to sue him in the first place..

But it was too late in the day for Andoakaa (SAN) to change the rule of the game after the trial judge had already delivered a ruling on the issue.
Andoakaa (SAN) however said that if the court is still inclined to roll both the objection and the substantive suit together in the Falana’s case, he begged the court to take his objection to the interrogatories first.

Falana is not objecting to this request.

Although it is legally available to Andoakaa (SAN) to object to the administration of the interrogatories on him if the questions posed are oppressive and scandalous; irrelevant and not sufficiently related to the subject-matter, objectionable or and if the interrogatories are not administered bonafide, it is however curious that he is mustering all the strength he has to frustrate the interrogatories.

But what are the specific questions that are giving the Federal government a hot fever?

The questions neatly packaged in the interrogatories read:

(1)      Was the resolution of the Executive Council of the Federation at its meeting of December 2, 2009 to the effect that President Umaru Musa Yar’Adua is capable of discharging the functions of his office based on any medical report?

(2)      If you answer Yes to Question 1, have you annexed the medical report to your answer?
(3)      Since you insist that the President is not incapacitated as to be unable to discharge the functions of his office, do you have a medical report on the current health condition of the President?

(4)      If you answer Yes to Question 3, have you annexed the medical report issued by his doctors to your answer?
(5)      Has the President signed the 2009 Supplementary Appropriation Bill?
(6)      If you answer Yes to Question 5, have you annexed the signed copy of the bill to your answer?

(7)      Can you say categorically when the President will resume duties in his office?

The seven questions though look innocuous, but a close examination of the interrogatories would reveal that each of  the questions is a bobby trap should Andoakaa (SAN) attempt to answer any of them as all his beautiful legal defence already submitted before the court would overnight turn to mere legal inanities and crumble on him.

For instance, there is no way he could answer Question 1 in the affirmative.

This is because Andoakaa (SAN) had already tendered a comprehensive minute of the EX(2009) 45th Meeting of the Executive Council of the Federation held on December 2, 2009 before the Abuja Federal high court wherein a blow by blow account was given of how the resolution endorsing  Yar’Adua’s medical fitness to continue governance in the country came about.

Specifically, the minute so tendered indeed explained that it was Andoakaa (SAN) that raised, at the meeting, the issue of the continuous calls for resignation of President Yar’Adua from office on account of his ill-health while Vice President Jonathan who said he was worried about it too told FEC members that he would have raised the issue if Andoakaa had not.

The FEC, according to the detailed minute of the meeting, agreed to pull a fast one by passing a resolution to the effect that the President is still capable to continue governance.

The purport of the resolution was make it impossible for the President of the Senate to convoke a medical panel that would travel overseas to examine Yar’Adua’s health with a view to determining whether he was still fit to continue ruling.

It is indisputable that there was nowhere in the minute where it was mentioned that any member of the FEC either saw Yar’Adua before its December 2 meeting, procured any medical report from his doctor or that the meeting relied on such medical report to pass its resolution.

The danger therefore is that if it admitted by Andoakaa (SAN) before the court that no medical report was obtained or relied upon to pass the resolution, the December 2, 2009 position of the FEC on the health status of Yar’Adua would be unreliable as to prevent the court from compelling Yar’Adua to activate the provision of section 145 of the 1999 constitution as requested by Falana.

Even if Andoakaa (SAN) lied that medical report was relied upon before the December 2, 2009 resolution of FEC was passed, he would stumble on a big difficulty in his attempt to answer Question 2 which requested him to produce document (the medical report) which never existed.

This is because if it had existed, it would not only have been tendered before FEC, it would have been smuggled out to the media to show that their position was credible.

To answer Question 3 would mean complying with the provisions of section 144 (1) (a) of the 1999 constitution which the FEC has been running away from and which is preparatory to mandatory invocation of the provisions of section 145 of the 1999 constitution as sought by Falana.

If Question 4 is also answered, then Andoakaa (SAN) would have fallen into the traps of Falana by eventually producing a medical report necessary for the preparation of a written declaration required by section 144 (1) (b) which the medical panel convoked by the President of the Senate would verify to sack Yar’Adua from office.

While Question 5 must necessarily be answered in the affirmative, Andoakaa (SAN) having said in different fora that Yar’Adua performed the functions of his office by signing the Bill on his sick bed, Question 6 is a dangerous trap to compel Andoakaa (SAN) exhibit a copy of the 2009 Appropriation Bill allegedly signed by Yar’Adua with a view to juxtaposing the signature on the document with his regular one in order to establish whether indeed he (Yar’Adua) signed the document or was forged by some crooks.

The last question is one that no member of Yar’Adua family or FEC member can answer because as we are reading this piece, no one knows his health condition as to say with certainty when indeed he would resume the functions of his office.

In the analysis above therefore, it is clear why Andoakaa (SAN) is fuming and why he was approbating and reprobating over his earlier agreement to allow both the preliminary objection and the substantive matter in the Falana case rolled together.

But the question now is: even if Andoakaa (SAN) files his objection, can he collapse any of the interrogatories on the ground that it is oppressive and scandalous; that it is irrelevant and immaterial to the subject-matter of the suit; that it is not administered bonafide and that it is objectionable?

This is a jigsaw puzzle that must be left for Justice Dan Abutu to exclusively determine.

But truth be told, Andoakaa (SAN) is not objecting to the administration of interrogatories on him to protect the private life of President Yar’Adua, he seems to be protecting all that has been illegally done in the name of section (5) (1) and 148 (1) of the 1999 constitution so that the Government of President Yar’Adua would not collapse overnight.


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