Can the Vice-President be Acting President Until 29 May 2019?
With President Buhari’s announcement upon his arrival from vacation/sick leave that he would be returning to the United Kingdom for another round of tests on his yet to be disclosed ailment, the focus of constitution watchers has shifted again to the law surrounding succession to the presidency and cessation of office due to incapacitation by infirmity.
In reality, there is no constitutional crisis yet. The rules for handing over prior to going on vacation have been followed and the Acting President has performed the role with aplomb. However, the fact of 2 presidents in the palace, notwithstanding President Buhari’s clarification that the Acting President would remain in charge, is something of a novelty, and it raises certain questions. The President has been constrained from performing his statutory duties for about 7 weeks. In spite of the garbled and unconvincing reports of pristine health from his media team, he has been quoted as saying he cannot remember ever being so ill. He has also said he will return for further treatment in 3 weeks’ time. At what point, one might ask, does it start being untenable for a poorly leader to remain or be allowed to remain in office? The answer lies with the constitution and who it empowers to raise red flags about the President’s health.
In some countries, like Ghana and Zimbabwe, the legislature can pass motions declaring the President incapacitated by infirmity of body or mind, following which investigative panels will be constituted and, depending on their report, another legislative motion passed to remove the president from office. Nigeria has followed the model of the 25th amendment to the American Constitution, however. In Nigeria, the process is that the Vice-President and at least two-thirds of the Federal Executive Council may pass a resolution that the President is incapable of discharging the functions of his office. They communicate this resolution to the Senate President (although the constitution does not quite say how – perhaps by letter) and then the Senate President is required to constitute a medical panel to verify if indeed the President’s infirmity renders him permanently incapable of discharging the functions of his office. If the medical panel’s report confirms this, then the President shall cease to hold office.
Even in the most neutral or balanced of democracies, it’s hard to see how this procedure would happen seamlessly. It has never been invoked in America. In Nigeria, where ethnic and regional considerations and access to the seat of power trump everything else, turkeys will never vote for Christmas, and it is safe to assume it will not happen either, unless the person in the office of the President goes street crazy Nollywood-style. Even at his most incoherent following his plane crash, the former Governor of Taraba State for example was neither allowed to resign nor his executive council allowed to declare him incapacitated.
What’s more, while the constitutional provision empowering the Vice-President and the Federal Executive Council talks about the president being incapacitated, the medical panel must certify the incapacitation as a permanent one. There is no question of a permanent disability at the moment. Safe to say then, that it will not be happening.
Where does this leave the country? The president has given absolutely no indication of when he might be ready to resume his duties and under the current circumstances, it would not be far-fetched for Professor Osinbajo to remain Acting President until May 2019. Can this possibly be what the constitutional intention is, to have a situation where the president can turn himself into a ceremonial president? What is the minimum amount of executive time we expect from the person we put in office over the course of his term? How seriously do we, as a people, and our elected representatives take the public trust in the executive offices of government?
It is true that anyone can take ill at any time. Indeed, I have recently lost a very good friend to illness. However, Aso Rock is not a nursing home. It is time for our National Assembly to take another look at the sections of the constitution that deal with the ability of executive office holders to perform their functions. The first step should be a stipulation that if the President (or a Governor) hands over to the Vice-President (or Deputy-Governor) for medical reasons, or for reasons that include medical ones, and is away for longer than a month, then it should be compulsory for the President to formally disclose his diagnosis and prognosis in sufficient detail to enable a decision be taken about his fitness to continue in office. The President is not a private individual and his health is not just a matter for him and his family. It is beyond ridiculous to keep being asked to pray for the President on the one hand, while being told on the other that he is hale and hearty.
Obviously, this would upset the extra-constitutional elephant in the room that is zoning, but maybe it is time to fully recognise it. Let the constitution recognise the 6 geopolitical zones and provide for an “in-zone” replacement to complete the term, instead of the Vice-President, if infirmity or death prevents the President from completing his term. This would probably also mean that the Presidency is rotated between the zones, but these are topics for another day.