On Buhari: ‘Sickness’ as constitutional offence

By Mohammed Adamu

DURING President Buhari’s first medical sojourn in London, I wrote a title, ‘ON BUHARI’S HALE-HEARTINESS’, and in which I said we would be “arriving at clearly unwarranted conclusion, to believe that whoever is ‘well’ is necessarily ‘hale and hearty’; or that whoever is not ‘hale and hearty’ is ‘unwell’; or that whoever is ‘unwell’ therefore has to be diseased and dying. Truth is, anyone can be ‘well’ without necessarily being ‘hale and hearty’; even as any can be ‘unwell’ without necessarily being ‘diseased’ and ‘dying’. As long as we are not dead, there’ll always be some degree of ‘un-wellness’ in us no matter how ‘healthy’ we ‘feel’ we are, or we ‘think’ we ought to be, or we ‘actually’ are, or in fact how healthy others ‘believe’ we may be.  And the reverse is also the case, that as long as we live, there’ll always be some degree of ‘wellness’ in us no matter how terribly ‘sick’ we ‘feel’ we are, or we ‘think’ we might be, or we ‘actually’ are, or how sick others ‘believe’ we may be.

And so the question as to whether or not a President in office is ‘hale and hearty’ is not, essentially, of any constitutional significance. For all that the Constitution cares, a president can be ‘hale and hearty’, or maybe ‘hale’ and not ‘hearty’ or ‘hearty’ but not ‘hale’, or he can even be ‘sick’, no matter how benignly or malignantly so, but as long as he is not incapable of discharging the functions of his office, or where he is, as long as his search for healing essentially is not in the way of the discharge of the functions of that office, there is no reason that he should be a candidate for removal from office as envisaged by Section 144(1)(a)and(b) of the Constitution which provides that “The President or Vice-President shall cease to hold office, if: (a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice-President is incapable of discharging the functions of his office; and (b) the declaration is verified, after such medical examination, as maybe necessary by a medical panel..” appointed by the President of the Senate.

Truth is although the Constitution does not expressly permit presidents to, or prohibit them from, falling ill while in office (and it should have no reason to), the Constitution does not also expressly or even if impliedly require them to be ‘hale and hearty’. They cannot only get sick, they can in fact be seriously sick while in office. In the previous piece I mentioned, did cite the case of former American President, Ronald Reagan who while in office became hard of hearing (deaf) and had to get “two hearing aids”; yes, Ronald Reagan, who while in office also had a diseased colon, an enlarged prostate and an assassin’s bullet lodged in his chest so that he had to be operated upon three times. The same Reagan who, while in still in office also had a running battle with skin cancer. At no time was Reagan a candidate for removal from office either on account of these life-threatening health situation or on account of the time he had to stay away from office in search of healing. I do not know any jurisdiction where it is a constitutional offence for a president to be sick. Or to be away from office for treatment.

Presidents can be sick, and in fact being human, they do often get sick; -yet some may even be lucky all through their tenure to be ‘hale and hearty’- but presidents must not always have to be ‘hale and hearty’ to justify occupying the highest office; nor are presidents, by the way, in office to prove how long they can stay healthy or –when they have the misfortune of falling sick- how quickly they can recover. But it is of constitutional significance that, whether or not he is ‘hale and hearty’ or whether he is ‘sick’ or he is excellently healthy, a sitting president must not be ‘incapable of discharging the functions of his office’; nor should any indisposition suffered by him be allowed to come in the way of the discharge of the functions of that office. It is essentially the reason that the Constitution requires that the be elected in duality with a Vice President who automatically should assume presidential authority without any precondition, any time the President has to be away.

And the question is asked, ‘when exactly can the President be said to be ‘incapable’ of discharging the functions of his office? Is it when a ‘sick’ –or maybe even healthy- President, for whatever reason, feels himself incapable of discharging the functions of his office; or is it when a cynical, or maybe even genuinely critical public, believes, rightly or wrongly, that the President is ‘incapable of discharging the functions of his office? Or is it only when medical diagnosis confirms that the President is ‘incapable of discharging the functions of his office’? At what point should enquiry into the medical condition of a sick president commence? Is it effective the date he announces that he has fallen ill, or sometime later while he is still undergoing treatment? Is it while he convalescences from treatment, or is it when there is a frustrating recurrence of relapse in his medical condition?  Should a sick president for example, after ceding all presidential powers to an Acting President, so that the country suffers no proveable governance deficit whatsoever on account of his medical absence, be declared ‘incapable of discharging the functions of his office for the reason only that he is taking ‘too long’ to fully recover? Or can a President, by the way, be said to be ‘incapable of discharging the functions of his office’ without that president actually in office grappling with the rudders so that all can see whether –in spite of his health or ill-health- he is capable or incapable of discharging the functions of that office?

Perhaps if medical science had not advanced enough to make available the ‘hearing aid’, President Reagan, while in office, would technically have been ‘deaf’ and legally therefore infirm -of ‘body’ or of ‘mind’, or both- and he would have had to resign or be removed from office. But trust the Americans, the novelty of the medical situation and the practical challenge to defeat the odds by making a deaf (but not dumb) president functional would probably have interested them more than the partisan or sectional opportunity to remove him, would have. In all serious democratic climes such as that, everything necessary will be done not only to keep, especially a ‘good’ president in office all through his tenure, but all hands will also be on deck to make him deliver in spite of his health challenges.

But could it be the reason that it is a non-medical federal executive council –and not actually a medical panel- that our Constitution gives the first ‘right of action’ in pronouncing a president ‘incapable of discharging the functions of his office’? Because it makes sense to say that the President’s ministers (who make up that council), being the closest to him, are the most likely first to notice his ‘incapability’ in their day-to-day official interactions with the President, and therefore the more suited to raise the flag first before a medical panel comes in to verify. And isn’t this reason enough also to suggest that the ‘incapability’ of an ailing president in discharging the functions of his office, is better located in how he practically runs the office while he occupies it, not isolatedly in the malignance or benignity of his condition or in how long it is taking him to recover from that condition? Having ceded all presidential powers to an Acting President, and having taken himself completely out of the way of governance, Buhari cannot be subject –presently- to the rigors of Section 144 on removal from office. But the day he returns home and resumes office as President, like Yar’Adua tactlessly did, then he will be exposed to the vagaries of that Section.

At least we were large-hearted to allow a medical gratuity to an accidented Taraba State’s late Governor Danbaba Suntai without the needless red herrings of threat of impeachment or demand for resignation. It was the least demonstration of ‘humanity’ we could show to a governor who was wrecked ‘body and mind’ in the course of service to his State. To demand the immediate resignation or removal of such a person would have been callous to say the least. And barring the fact that Suntai’s minders would neither allow the transfer of powers to the Deputy nor even a free hand for him to continue with the governance of the state, there would not have been any bickering about whether Suntai was already infirm of ‘body’ or of ‘mind’ –or both. The proof of that was that Suntai in fact neither resigned nor was he removed until his tenure ran out. The debate about whether or not he was ‘infirm of body and of mind’ was neither advanced to extract his resignation nor was it canvassed to instigate his removal from office. it was to convince his minders to allow him more medical time –no matter how long- to recover. This medical gratuity which was offered Suntai and which his minders vehemently rebuffed, is what we are presently not willing to offer Buhari who has not only ceded all presidential powers to an Acting President but has also consistently refused to interfere with governance even when consulted by the Acting President.

 

Postscript

SECTION 144(1) of the Constitution provides that “The President or Vice-President shall cease to hold office, IF (emphasis mine) (a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice-President is incapable of discharging the functions of his office…” Legally-speaking the conjunction ‘if’ is actually non-mandatory, indicating a condition-precedent that is to be caused into effect by the council discretionarily –any time in the future- and not obligatorily so. There is none constitutionally empowered to mandate the body of ministers to ignite this section except the courts. The council does so ‘if’ and ‘when’ it deems it necessary so to do. Any outside opinion is merely persuasive.

In much the same way that the conjunction ‘whenever’ (an emphatic form of ‘when’) in the un-amended controversial section 145 of the Constitution -on remittance of letter- was also as non-mandatory as it was discretionary. In truth our pigheaded obstinacy even in the face of legal truth was the reason we vilified Yar’Adua for not ‘transmitting’ to NASS even though we knew he was not constitutionally obligated to do so. Nor was there to be any power vacuum even in the event that Yar’Adua did not transmit a letter. The controversial Section opened with “Whenever the President transmits…” –meaning: ‘at whatever time in the future he chose to…’, or ‘if he ever cared to do so…’ or ‘provided at any time in the future he did so’, or yet ‘in case he ever bothered to do so…’ And what better proof that the problem was the wording of the Constitution and not Yar’Adua’s non-remittance than the fact that the NASS thereafter had to amend the Section to remove the discretion?!

To quote a paragraph or two from a previous piece I wrote titled ‘Yar’Adua: Now that everyone is a lawyer’ (02/12/10): “The claim that the provisions of Section 145 impose a duty on the President to transmit a letter to NASS was laid to rest by the courts which confirmed Yar’Adua’s right to the exercise of discretion. Which is not to suggest that the President was morally right not to have exercised that discretion in deference to a wider perspective of what would have been more morally patriotic” (assuaging unwarranted geo-political and ethno-religious nerves)…. Yet the same people who talked about the so called ‘doctrine of necessity’, refused to accept Justice Abutu’s judgment (to the effect that the Vice President, Jonathan could do all that the President is empowered to do under Chapter six of the Constitution) as doctrinaire enough on the scale of legal necessities.

The problem has never always been the Constitution’ It is our geo-political and ethno-religious attitude to the ‘letter’ and ‘spirit’ of the Constitution.

 

 

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