Notwithstanding that hetransmitted letter to theNational Assembly, can theNational Assembly compelPresident MuhammaduBuhari to resign on thegrounds of ill-health?Lawyers say no, yes.AKEEM NAFIU reports
It is 44 days today since President Mohammadu Buhari proceeded to the United Kingdom for further medical treatment on his failing health.
This time, the president said his stay in the United Kingdom would be determined by his doctors.
But while embarking on the medical trip, he transmitted a letter to the National Assembly to constitutionally make Vice President Yemi Osinbajo act on his behalf pending his return.
In the letter, President Buhari said Vice President Osinbajo will “coordinate” the nation’s affairs while he is abroad for medical treatment.
This May 7 letter to the National Assembly, however, was the fourth since Buhari’s inauguration on May 29, 2015 that would make Osinbajo function in acting capacity.
Following Buhari’s 44 days medical trip, a section of Nigeria is rooting for an impeachment of Mr. President.
In view of Buhari’s indefinite medical trip, can the National Assembly be compelled to initiate impeachment proceedings against him? Or can Mr. President be compelled to resign on the grounds of ill-health? Lawyers say no, yes.
First to fire the shot is an activist lawyer, Mr. Ebun-Olu Adegboruwa, who called on the National Assembly to commence impeachment proceedings against President Muhammadu Buhari over the wording of his vacation letter to the National Assembly.
Adegboruwa said the decision by the president to ask Mr. Osinbajo to ‘coordinate’ the government’s affairs in his absence would leave Osinbajo with virtually no powers to run the country.
He said: “A coordinator is a person of equal status with others, so the Vice President cannot make appointments or sack anybody while the President is away.
“He cannot discipline any erring minister. He is limited in policy decisions, as a coordinator. He has no power of control over the cabal to whom the president has handed over power, albeit illegally. The chief of staff was recently reported to have moved vital documents away from Aso Villa.
“In effect, Nigeria has no leader presently. The existing office of Vice President is no more. The constitutionally created office of Acting President has been circumscribed by the President.
The President is away on an indefinite medical trip abroad.
“The President cannot travel for medical check-up for an indefinite period of time.
“There is, therefore, a serious constitutional crisis.
“Pro-government lawyers and activists, who have goaded the Buhari administration into dubious and reckless interpretations of the Constitution in the past, should be held responsible for the current crisis and all acts of impunity from Aso Villa.
In all, the National Assembly should commence impeachment proceedings against the President for gross misconduct.”
Other senior members of the wig and gown while also baring their minds on the issue at the weekend were of the view that the process of removing the president from office on the grounds of ill-health has been spelt out by the Constitution under Section 144 and not a situation where the National Assembly would compel the president to resign.
To them, it was constitutionally within the confines of members of the Federal Executive Council (FEC) to initiate the process of removing the president from office whenever he was no longer capable to discharge the functions of his office owing to ill-health in view of their constitutional role in such matters.
A Senior Advocate of Nigeria (SAN), Chief Mike Ozekhome, however, outlined two scenarios upon which either the president or his deupty can be removed from office following their inability to discharge the responsibilities imposed on them by their offices.
Ozekhome said: “There is a procedure established by Sections 143 and 144 of the 1999 Constitution. In Section 143, one-third majority votes of the National Assembly must sign a resolution and present it to the President of the Senate, stating that the President or Vice President is guilty of gross misconduct.
“The Senate President is given seven days to serve a copy of the resolution on the President or Vice President, who must reply within fourteen days. This process is long as it deals with the issue of impeachment, which involves the National Assembly, the Chief Justice of Nigeria (CJN), special panel of seven eminent Nigerians, right of defence, etc, before the President or Vice President is removed from office within three months of the appointment of the panel.
“The second scenario involves Section 144 of the Constitution which requires a two-third majority of members of the Federal Executive Council (FEC), made up of the body of ministers appointed by the President, saying the President or Vice President is incapable of performing the duties of his office.
“A medical panel appointed by the President of the Senate, which must include the president’s personal physician and four other medical practitioners. The president ceases to hold office once the panel certifies that the president is suffering from such infirmity of body or mind as to render him permanently incapable of discharging the functions of his office.
“A notice to that effect shall be signed by the President of the Senate and the Speaker of the House of Representatives and must be published in the Official Gazette of the government of the federation.”
But in his view, another Senior Advocate of Nigeria, Mr. Norrison Ibinabo Quakers said the Constitution did not confer the powers to ask for the resignation of the president on the National Assembly., hence, Lawmakers had no such powers as to compel President Buhari to tender his resignation under whatever guise.
Quakers said: “The National Assembly cannot compel the president to resign because such power is not vested in it. The beauty of our democracy is that the Constitution has also envisaged situations like this. “Under Section 144 of the 1999 Constitution, if my memory is not failing me, the Federal Executive Council (FEC) is vested with the power to pass a vote of no confidence based on the challenge of President Buhari’s ill-health to the Senate president to the effect that they believe that the president can no longer discharge the functions of his office.
“On the basis of that, the president of the Senate would constitute a panel which would include the president’s personal physician to ascertain whether or not the president’s health challenge is such that has incapacitated him from discharging the functions of his office. If these findings are confirmed, it is then gazetted and the Constitution says the president stands removed.
“Section 144 of the Constitution is very clear on this.
“It says the president or vice president shall cease to hold office, if by a resolution passed by two-third 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 the declaration is verified after such medical examination as may be necessary by a medical panel established under sub-section 4 of this Section is reported to the president of the Senate and the Speaker of the House of Representatives.
“Where the medical panel certifies the point that in its opinion, the president or vice president is suffering from such infirmity of the body or mind that has rendered him permanently incapable of discharging the functions of his office, a notice thereon signed by the president of the Senate and the Speaker of the House of Representatives shall be published in the official gazette of the Government of the Federation and the president or vice president shall cease to hold office as from the date of the publication of the notice of medical report pursuant to sub-section 2 of this Section.
“So, it’s clear. The steps must be followed and it is not what the National Assembly thinks. The lawmakers cannot just declare that office vacant. The power to declare it vacant is not vested in them but in the Federal Executive Council (FEC) comprising of the vice president and the ministers.
“If you recall, when we had similar experience during the late President Shehu Musa Yar’Adua’s tenure, it was the late Dora Akunyili that raised the alarm because that is what is expected.”
Quakers was echoed by another Senior Advocate, Dr. Biodun Layonu, who said that the Federal Executive Council (FEC) had the constitutional role to play if the president would be removed on health ground.
“The Constitution is very clear if the president is going to be removed on the ground of ill-health. His cabinet has the constitutional role to play and I cannot see how the National Assembly can jump that hurdle without going through the path laid down by the Constitution, Layonu said.”
Seyi Sowemimo, (SAN) said the National Assembly cannot compel the president to resign on health ground.
He said: “If any extraordinary health challenge occurs to the president, then, the Federal Executive Council (FEC) will be the body to take steps to see whether or not the president is fit to continue in power. Beyond that, I don’t think the National Assembly can compel the president to resign from office.
“As far as I am concerned, I don’t even know whether such an action is realistic at the moment. At least, we are being told that the man has recovered well and is expected back in the country soon. What I am saying in essence is that, it is the Executive Council that will have to initiate the process of removing the president, the National Assembly cannot just unilaterally ask him to resign.”
A former Vice-President of the Nigerian Bar Association (NBA), Mr. Adekunle Ojo, while noting that resignation was a voluntary act said no law allows the National Assembly to compel the president to resign on health ground.
He said: “There is no provision in the Constitution that allows the president to be compelled to resign by the National Assembly. Resignation is a voluntary act. If the president wishes to resign on the grounds of ill-health, he can do so because it is a personal decision. No law allows anyone to compel him to do so.
“But then, if members of the Federal Executive Council (FEC) find out that the president is no longer fit to carry out the functions of his office, they can embark on the procedure that would ensure that a medical fitness examination is conducted for the president.
“This is done when there is a feeling that the president is incapacitated or is no longer able to do his works by reason of ill-health. Necessary machinery will be put in place by the FEC members and this will involve inviting doctors to certify whether he is fit or not. This is what the law expects them to do.
“On the part of the legislators, they have no say on whether the president resigns or not. The only thing they can do is to impeach him if they think he has committed any impeachable offence in the course of his assignments.
“So, what I am saying in essence is that the law does allow the National Assembly to even talk about president’s resignation.”