Does 1999 Constitution need amendment to accommodate maximum time frame for presidential vacation? Lawyers say yes, no

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Norrison Quakers (SAN)

Dafe Akpedeye (SAN)

Sylva Ogwemoh (SAN)

The continued absence of President Muhammadu Buhari from office on medical reasons has now raised questions about the lacuna in the constitution as it concerns the length of time within which the commander in chief could be away from office.

As at today, the president has spent about 64 days in medical vacation, in which he has not put up any public appearance nor disclose the nature of his illness outside what is gleaned from grapevines.

The president left the country on May 7, 2017 shortly after returning from a similar trip and handed over to his vice, Prof.Yemi Osinbajo (SAN).

The danger is that anybody could win presidential election, abandons the task of governance and simply handover to his vice and goes on endless frolicking abroad, without consequences.

But some lawyers believe that the constitution, and rightly so cannot capture all dynamics of human life, arguing that there are provisions to take care of such developments, while others think the constitution needs to be amended to include maximum time frame within which to be away from office or at worst invoke ‘doctrine of necessity’ and declare Osinbajo president.

Solomon Ukhuegbe is of the view that the constitution has already taken care of such prolonged absence from duty. He noted that aside from resignation, there are only three ways a President can cease to hold office. They are death, removal for ‘gross misconduct’ (impeachment) as provided in section 143 and removal for permanent incapacity enshrined in section 144.

According to him, if the President was frolicking or holidaying abroad for an unreasonably extended period, that may, arguably, amount to gross misconduct for the purpose of section 143.

His words: “But I can’t imagine how prolonged hospitalization abroad can be a misconduct, let alone gross misconduct. However, if the President’s condition deteriorates to permanent incapacity, that may be sufficient for his removal by section 144. But the Federal Executive Council (FEC) can only trigger that process, although there may be an understandable reluctance initiating the process in section 144 should the situation arise.”

However, the challenge in initiating the provisions of section 144 is that FEC members are all presidential appointees. It amounts to one being a judge in his own case to empower them to initiate a process that would lead to the removal of their boss.

But Ukhuegbe disagrees with this position. According to him, section 144 is an administrative/political process, not a judicial or quasi-judicial process. “So, the question of being a judge in one’s cause does not arise. At any rate, FEC merely triggers the process. After that, it is out of their hands. The Senate sets up a medical board to make an authoritative determination of the President’s alleged permanent resident incapacity. I do not know “the original intent of the framers.” However, section 143 is taken from the 1979 Nigerian Constitution. Sections 144 and 145 are from sections 4 and 3 respectively of the Twenty-fifth Amendment to the Constitution of the United States,” he stated.

He also made a contrast between the present situation and that of late president Umaru Musa Yar’Adua. “In the Yar’Adua episode, the President was indisposed and away from the country without activating section 145 (by writing to the Senate). Before the 2011 constitutional amendment, only the President could activate section 145. Not so any more. There was therefore no acting President then.

“Right now, in contrast, there is an acting President. The Attorney General has reminded us that the acting President can do whatever the President may lawfully do. So, in my opinion, there is no urgency for FEC to activate section 144 unless the President has no hope medically of recovery. In any case, FEC should have better information on the state of the President’s health than the general public,” he said.

Charles Emetulu insists that it amounts to one being a judge in his own case given that the FEC is 100 percent populated by the President’s appointees. “Fear of being tagged ‘disloyal’ may creep in. It’s instructive to note that by the end of today (July 7), we would have done 188 days in year 2017, and for more than half of that period the president has not been on seat. Very clearly the lacunas in our Constitution are too many.

“I say so because, in the spirit and letter of the constitution, the president has done no wrong. Even if he’s away all year, so far as the FEC initiates nothing, we just have to take the development(s) on the chin and move on,” he argued, adding that so far as the process is not triggered by the FEC, nothing else can be done.

A Senior Advocate of Nigeria, Sylva Ogwemoh in his interventions said there is no constitutional limitations on the period of time the President may be away from office on health grounds once the President transmits a letter to the National Assembly transferring power to the Vice President.

His words: “Under section 145 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), once the President transmits a letter to the National Assembly that he is otherwise unable to discharge the functions of his office, until he transmit to the National Assembly a written declaration to the contrary, the functions of his office shall be discharged by the Vice President as Acting President. In effect, until the President conveys a message to the National Assembly contrary to his initial declaration of incapacity to perform the functions of his office, he is entitled to stay away from office for as long as he desires except of course the extant provisions of section 144 of the Constitution are invoked by a two-thirds majority of all the members of the FEC, declaring that the President is incapable of discharging the functions of his office.”

Ogwemoh argued that there is truly no lacuna in the 1999 Constitution on the issue, considering the provisions of section 144 of the Constitution in conjunction with section 145. For him, the question of course is whether there is the political will to invoke the provisions of section 144 in deserving situations. According to him, we have copied into our Constitution certain provisions of other Constitutions of advanced democracies in the world without necessarily taking into consideration the peculiar nature of our environment and our people. This, he said, is why we often think that making new laws or amending old laws would provide the answers to our problems whereas in actual fact the solution to our problems is already embraced within the context of our existing laws.

Also, former attorney general in Delta state, Dafe Akpedeye (SAN) is of the view that the constitution obviously does not allow a President to desert his duty post simply because he has transmitted a letter to the National Assembly transferring power to the Vice President. While the constitution may not have envisaged all possible scenarios that can play out in this regard, the present constitution, he noted, is not totally helpless in arresting the situation, although it can be further strengthened.

His words: “Two options are provided by the constitution in nipping this in the bud. The first is as provided by Section 143 of the Constitution, namely removal from office, also known as impeachment. The only ground provided is ‘gross misconduct.’ There is no definition of what amounts to gross misconduct as it depends on specific situations.

However, a president that refuses to oblige the public details of his health condition and leaves his duty post indefinitely can be said to be guilty of gross misconduct. The stringent process and the checks involved are to ensure that the power granted to the National Assembly is not abused.

“The second option is as provided by Section 144 of the Constitution, and it is on the grounds that he is incapable of discharging the functions of his office. To kick-start this process however, two third majority of all members of the FEC must pass a resolution.”

This, he said, appears to be the kernel of the problem with this procedure. “It is unlikely that a FEC empanelled by the appointees of the president will kick-start a process for his removal. This power ought to be removed and given to an independent body. Alternatively, the wordings of the constitution could be that of compulsion if the president is absent for a specific period of time.

“In other words, it can be revised that FEC shall begin the process if a time frame lapses without the president divulging his state of health to the country. In sum, whatever the provision of the constitution, our leaders need to have sincerity of purpose and exalt public interest over primordial, selfish interests for our laws to work.

Norrison Quakers, also a Senior Advocate in his contribution said the constitution cannot address all issues. According to him, it is a document subject to amendments. The President, he said, having transmitted the letter sequel to Section 145 of the constitution automatically makes the vice president “Acting President”.

He said: “The reason for the absence is vacation. Having recourse to the period of vacation allowed for public officers, the President has exceeded it. It is therefore imperative for the legislature to wade in by invoking the doctrine of necessity and directing the Chief Justice of Nigeria to swear in the Acting President as President of the Federal Republic of Nigeria.

“This is being suggested because the President cannot be found and is not permitted by law to proceed in indefinite vacation. A typical example though not quite in line with the current situation is where an elected President is unavailable to take or subscribe to the oath of allegiance and office, the Vice President is immediately sworn in. See Section 136 (1) of the Constitution.

“Therefore by parity of reasoning, a President who has been out of office for a period exceeding two months should be declared unavailable to run the affairs of the country giving way to the Acting President being sworn in as President.”