Can the Vice-President be Acting President Until 29 May 2019?

Nigeria’s Vice President Yemi Osinbajo

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.

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  • Spot on.

  • JoshBiggs

    Thumbs up for the most part, but I have a dissenting opinion.
    Your suggestion of an ‘in-zone’ replacement to complete the president’s term in the event that s/he is incapacitated by infirmity or death and as such is unable to complete the term would not fit into the presidential system of government since the function of such a an ‘in-zone’ replacement is presently the main function of the vice president under the presidential system. If I’m not mistaken, the vice president is elected alongside the president principally to step into his/her shoes in the event of such incapacitation.
    So I think we have to find another way round this, except we want to ditch the presidential system altogether.

    • IronDome

      This inzone idea is one reason why nigeria wont make progress. majority of our people are not ready for our systems to work and they always bring nepotism, tribalism etc into their suggestions

      • Rotimi Fawole

        I think that for as long as our current system does not guarantee equal attention and the regions need to be in the good books of the centre, we will have the zoning discussions. The real solution is to give more autonomy to the regions but that isn’t a popular suggestion either.

    • Rotimi Fawole

      You’re right. That is what the VP is currently elected to do. However, the way we are structured, regional interests only get advanced at the centre and those from the current president’s region will do all they can to prop him up whether or not he is healthy enough for the rigorous requirements of his office. The in-zone suggestion is to try to cure that apprehension of losing access to the centre, so that at least people stop playing politics with the health of the president. That was the thrust of the thinking behind the suggestion.

      • JoshBiggs

        OK. Clearer now.
        But how do we work it out in a presidential system?
        I think empowering the regions as you have said would have been the needed panacea but how do we work that out on the present arrangement?

  • Isaiah Kumuyi

    @disqus_pPySL8CmKJ:disqus : Very true, Josh!

    However, @JoshBiggs and All:

    That is why it is up to us to develop a home-grown model of Presidential Democracy, suited to our peculiarities.

    It’s a fact that by the very nature and configuration of our country, a constitutional recognition of Zoning is necessary. The “in-zoning” idea mooted by Mr. Fawole, really, is an ingenious one. When considered well, it’s an idea that could work.

    For instance, let’s assume, as presently constituted, the Presidency and Vice-Presidency have been “zoned” to the North-West and South-West respectively, the “In-Zoning” slant could provide for the following:

    1. That in addition to assisting his boss with managing the country, the Vice-President be given specific constitutional roles. I think our current Constitution has done a bit in this regard by making the VP Chairman of the National Economic Council. The Office of Vice-President could be made a Senior Ministerial role, with specific ministries/ agencies/ programmes of government under his watch; with him finally reporting to the President.

    2. In the event that the President (North-West) is not able to complete his tenure for whatever reasons, the “In-Zoning” element then kicks in this way:

    (a). A new President, from the same geo-political zone, as the former one is appointed from among current members of his cabinet, by the election of other members. After then, his name will be forwarded to the National Assembly ( as representatives of the people) for confirmation.

    (b). The Vice-President (South-West), who came into office on a joint ticket with the former president, will retain his office and his constitutional roles. Bearing in mind, also, that he holds the offices by the constitutional rights of his geo-political zone, his continued stay in office is NOT subject to the new President’s prerogative.

    (c). Except in a clearly established case of committing an impeachable offence, the Vice-President will NOT be removed from office, but will SERVE OUT the tenure of the administration with the newly elected President.

    (d). And in the case of the Vice-President being impeached, the new President is constitutionally bound to appoint a new Vice-President from the same geo-political zone as the impeached one.

    3. If these steps, among many others, are taken it would really help to:

    I. Make our practice of democracy suited to our peculiar character and needs. China evolved the concept of “Market Socialism” when it needed to adapt its practice of Communism, initially copied from the defunct Soviet Union. Look at where China is today economically, despite its continued claim of being a Communist state.

    II. Stabilise our polity and make politics less machiavellian. The trump cards of ethnicity, religion, claims of minority marginalization, and other of such in the arsenal of politicians, would largely lose their potency.

    III. Advance the cause of equity, equality, fairness, and justice among the States and Geo-Political zones of the country.

    In summary, I am a strong believer in the principle of ZONING and that it should be given CONSTITUTIONAL VALIDITY.

    Zoning DOES NOT impair MERIT at all! That’s a discussion for another day.

    Once again, let’s thank God that the President is back; and hopefully, things will continue to improve.

    God bless Nigeria!

    We can connect on Twitter: @isaiah_kumuyi