Buhari’s medical vacation lawful, says Ozekhome
Rights activist and constitutional lawyer, Chief Mike Ozekhome yesterday argued that the decision by President Muhammadu Buhari to embark on a medical vacation was in line with the dictates of the rule of law.
Ozekhome, a senior advocate of Nigeria (SAN) who bared his mind on the legal implications of the President’s trip maintained that it was premature to invoke sections 146 of the constitution which envisages the measures to be taken if the president is deemed to be incapacitated.
In a statement made available to the Guardian, he asserted that it would not be practically impossible to ensure the removal of the President Buhari from office as things stands presently.
He argued thus: “In so far as President Buhari has transmitted to the National Assembly his desire to proceed on medical vacation, as he has rightly done under section 145 of the Constitution, he can stay for as long as his medicals necessitate, until he transmits a contrary declaration to the NASS, to the effect that he resumed duties. This is because such transmission (as he has advisedly done, kudos to PMB), has effectively blocked any vacuum or lacuna in the governance of the country. The Vice President, Professor Yemi Osinbajo, SAN, can only function in an “acting capacity”.
“It is therefore premature for pundits to suggest and invoke section 146 of the Constitution, which deals with an entirely different scenario. Under the said section 146, the Vice President “shall hold the office of President if the office of President becomes vacant by reason of death, resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason”, in accordance with sections 143 (dealing with impeachment) and section 144 (dealing with a resolution passed by two-third majority of Ministers). Section 146 envisages a more grave situation. Nigeria is not at that perilous juncture. And may she never be. I wish the President speedy recovery.
Continuing, he argued: “Section 143 of the CFRN, 1999, as altered, generally deals with the removal of the President from office on ground of misconduct in the performance of his office, and the entire procedure involved in the process of such removal.
“Gross misconduct” is defined by the Constitution to mean a “grave violation or breach of the provisions of the Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.” It is therefore clear that aside a “grave violation or breach of the provisions of the Constitution”, what amounts to “gross misconduct” is what, in the objective, subjective, whimsical, or capricious “opinion of the National” to amount to same.
“Section 144 CFRN, 1999, as altered, provides for the removal of the President on ground of “permanent incapacity” of the President to discharge the functions of his office. His removal under this provision, unlike that of S. 143 which is initiated by the NASS, is initiated by the members of the Executive Council of the Federation through a resolution passed by two-thirds majority of all the members of the Executive Council declaring that the President is incapable of discharging the functions of his office. Section 144 (5) defines “Executive council of the Federation” to mean the “body of Ministers of the Government of the Federation, howsoever called, established by the President…”
“Where the declaration is made by the members of the Executive Council, it is verified by a team of medical panel appointed by the President of the Senate, comprising 5 medical practitioners, including the President’s personal physician. If, in the opinion of the medical panel, the President is suffering from such “infirmity of body or mind” as renders him permanently incapable of discharging the functions of his office, it shall send its report to the President of Senate; and where a notice signed by the President of Senate and Speaker House of Representatives is published in the Gazette of the Government of the Federation, the President or his Vice, shall cease to hold office from the date of the publishing of the notice of the medical report.
” It is clear from the above, going by the present scenario of the President’s second medical sojourn abroad that until he is so declared unfit by reason of “infirmity of body or mind,” by two-third majority of Ministers, there is nothing any one can do about it. It is left to be seen if the Federal Executive Council, a body appointed by, and solely responsible to the President, will summon enough courage to take such steps, even if it were crystal clear that the President is permanently incapacitated to carry out the functions of his office.
“In a plural society such as Nigeria, where cronyism, nepotism, tribalism and ethno-religious sentiments reign supreme, and where allegiance is owed to the benefactor of a favour rather than allegiance to the nation, it will be impossible to see our squirming and pigeon-hearted Ministers, mustering 28 out of about 42 Ministers or there about, to secure a two-third majority and declare Buhari unfit to govern. That will be the 8th wonder of the world!
” It is clear from the case of Danbaba Suntai, former Governor of Taraba State, that members of the Executive Council in whose domain lies squarely the kick-starting of the process for the President’s removal on ground of “infirmity of body or mind”, are never ready, able or willing to commence such a highly politically charged process. Danbaba Suntai was virtually a vegetable, could hardly talk, and looked vacant with sunken eyes, when he was “packaged” to address the media, in a most pathetic and incoherent manner.
The Constitution never made provisions for the process to be kick-started by the NASS, except where it can be tied up to an act which constitutes “gross misconduct.”