The Return Or Resign Movement And What The Constitution Says.

It's gradually getting to 100 days since President Muhammadu Buhari left Nigeria for the United Kingdom on a much vilified Medical Tourism (The President has since become a tourist attraction for a select few of Nigeria's powerful).

Frankly, this trip is wrong on many fronts: we can't wish away the shame of having to deal with the harsh reality that the President of the largest Black State on Earth and the self acclaimed Giant of Africa has to travel over 6 hours to London for the purpose of receiving medical attention.

The very rational deduction to make from such trip is that as big as the Nigerian economy is and with all the money that Nigeria has earned from oil in the past 40 years, Nigeria still does not have a world class Hospital to meet the health needs of common citizens nay the President.
Now, this is disappointing but that is not the bone of contention: as a young Nigerian, the Country disappoints me everyday.

In the light of this absence from duty by the President, the disgust in the minds of citizens is apparent: an uprising for either the return or resignation of the President is gaining momentum.
Last week, a group of Nigerians commenced a daily sit out in protest of the President's absence calling on him to either return from London and resume his role as President or honourably resign.

On a personal note, I'm tilting towards the view that the President should either resume or resign. This view stems from the fact that I feel strongly that the management of information on the President's health has been a major publicity disaster which has done great harm to his reputation as one who places premium on Transparency.

Without a doubt, the Human body is mortal: we are all vulnerable to the forces of life and death; ill health and sound health and as reasonable persons, we sincerely empathize with the President but that doesn't mean we should ignore our disappointment in the way the health status of the President has been shrouded in secrecy.

On moral grounds, the President has failed a very crucial test of transparency and openness in his decision not to at least disclose his specific health challenge to Nigerian Citizens.

However, that is not the purport of this article: the concern is in the legal implication of the President's over 90 day absence from duty and of course his continuous resolve to not disclose his actual health condition to Citizens who are in good faith, yearning in line with the tenets of model Democracies to know exact details about the Man who has been saddled with their lives for the next two years or so.

The Law (in this case, the 1999 Constitution of the Federal Republic of Nigeria) is explicit and without contradiction as to the conditions under which the President can be removed from office.

Thus, S. 143 of the 1999 Constitution of the Federal Republic of Nigeria as amended provides the conditions for the removal of the President or his Vice.

What this section does is to outline the procedures that should be followed for the impeachment of the President.

Clearly, there is no motion for impeachment before any arm of the National Assembly, and thus, it is not exactly of great relevance to this article.

As a matter of fact, the protesters are not calling for the President's removal from office: they are merely calling on him to either return to duty or resign from office.

Taking it a step forward, S. 144 of the same 1999 Constitutional of the Federal Republic of Nigeria as amended states the conditions under which the President shall cease to hold office as follows :

"(1) 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 may be necessary, by a medical panel established under subsection (4) of this section in its report to the president of the Senate and the Speaker of the House of Representatives.

(2) Where the medical panel certifies in the report that in its opinion the President or Vice-President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice thereof 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.

(3) The President or Vice-President shall cease to hold office as from the date of publication of the notice of the medical report pursuant to subsection (2) of this section.

(4) the medical panel to which this section relates shall be appointed by the President of the Senate, and shall comprise five medical practitioners in Nigeria:-

(a) one of whom shall be the personal physician of the holder of the office concerned; and

(b) four other medical practitioners who have, in the opinion of the President of the Senate, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions.

(5) In this section, the reference to "executive council of the Federation" is a reference to the body of Ministers of the Government of the Federation, howsoever called, established by the President and charged with such responsibilities for the functions of government as the President may direct".

In a nutshell, this section of the Constitution provides that the President shall compulsory cease to hold office if by a two-third majority of the members of the National Executive Council, that is, the Ministers appointed by him, it is resolved that he is not capable of discharging the functions of his office upon verification of his incapacity by a medical panel appointed under S. 144(4) of the Constitution.

Till date, there has not been a declaration of the President's incapacity by the Executive Council and there hasn't also been a verification of the President's incapacity by any medical team appointed in line with the provisions of S.144(4).

Again, the protesters are not exactly calling for a declaration of the President's incapacity by the National Executive Council.
To that extent, their demands cannot be said to have foundation in that section.

While the quest for a legal justification for the protests calling on the President to resign continues, it is important to understand whether the President has breached any Nigerian law by his continued absence from duty.

Without a doubt, 90 days is so long a time for a President of a serious Country to stay away from duty.

However, the constitution perhaps recognizes the essence of such continued absence from duty and makes provisions for what will happen in the event of such absence.

Thus, S. 145 of the 1999 Constitution of the Federal Republic of Nigeria as amended states as follows;

"Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President".

This section impliedly provides that in the event that the President will be unable to discharge the duties that come with his office, he should write to the National Assembly transmitting power to his Vice President who will be the Acting President in his absence.

Without a doubt, before the President embarked on his most recent Medical Tourism to the United Kingdom, he wrote a letter to the National Assembly and basically handed over power to the Vice President, Yemi Osinbajo to coordinate the affair of Government.

So, it's hard to see where the President has erred in Law in the whole period of his absence given that at every stage, he has been in compliance with the laid down provisions of the constitution which was not the case with the era in the Yar'Adua Presidency where his absence as a result of ill health created a vacumn in Government.

The scenarios are different : in the Yar'Adua era, the then President Umaru Musa Yar'Adua left the Country for Germany to receive Medical attention without handing over power to his then Vice President, Goodluck Jonathan and this created a constitutional crisis as the famous doctrine of necessity had to be invoked by the National Assembly to facilitate the declaration of Goodluck Jonathan as Acting President but in the Buhari era, there is no vacumn as the Vice President is the Acting President.

From the above, it clear that the concerned Citizens who are calling on the President to resign do not have any known legal foundation as far as Nigerian Law is concerned.
The agitation is wholly sentimental as there is no known constitutional provision for the President's resignation.
The issue of resignation is clearly dependent on the President's conscience and if he doesn't deem it fit to resign, there is no degree of protests that can compel him to do so.

So, while I understand the sentiments of the Protesters and even share in them to a certain extent, I am convinced beyond doubt that their demands lack any legal justification.

Compared to other climes, they surely have a point but our laws as a country have not been breached by the President's continued absence and their demands for resignation of the President are wholly dependent on his discretion and conscience.

CLINTON.