No place like home so the cliché goes. And some will add the truism that home is the best place to be. It is on this score that I wish the president a very speedy recovery in the Saudi hospital and back home to continue to stir the ship of state that he left at anchor for weeks now. There is no doubt that the president health has left Nigerians in anxiety and emotional trauma. While some generality of Nigerians have called for his resignation on the premise that his health has become an impediment to governance, the Federal Executive Council thinks otherwise.
I will not call for the president resignation on this page or join issues with the FEC. Mine is to highlight those salient points of law in connection to the fact of when would it be said that the president is no longer capable of piloting the affairs of the country as a result of his failing health and therefore, should resign. Here we go!
By S.144 (2) of the constitution, the president may be removed from office if a medical panel certifies that the president is suffering from such infirmity of body or mind that renders him permanently incapable of discharging the functions of his office. The question them is: when would it be said that the president is incapable of discharging the functions of his office? And what test should be employed to ascertain that? Ojo Maduekwe, the minister of external affairs would want us to know that ‘‘ America ’s golden moment was inspired by the leadership that was wheelchair bound.” I agree with Ojo Maduekwe by half. Even Bill Clinton noted that wheelchair bound president Roosevelt inspired him as American president. Roosevelt was in a wheelchair, but mind, body and soul he was sound like any other person. Could that be said of Yar’Adua? S. 146(1) of the constitution states that” the Vice-President shall hold the office of the president if the office of the president becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the president from office for any other reason in accordance with section 143 or 144 of this constitution.” What is discernible here is that under S.144 of the constitution, the president can only be removed on two grounds. One is if the president suffers from infirmity of body or mind which renders him permanently incapable of discharging the functions of his office. Two is for any other reason.
In the first instance, the test is an objective test. Theodore Roosevelt was in a wheelchair but never left the Oval Office in the White House. For weeks now, a mobile Yar’Adua has been out of the Presidential Villa in Aso Rock to far away Saudi Arabia in a hospital bed combating a heart disease. Roosevelt lost the functions of his legs, but Yar’Adua (God forbid!) may lose the functions of his heart. Incapacitation is not enough, unless where such incapacitation has made it impossible for the person to discharge the functions of his office. The president left the country without handing over the affairs of the state to the Vice-President and by the time he returns from the hospital, he may not be medically fit to work long hours to enable him clear up the backlog of files now pilling on his table. Which other objective test do we need in this circumstance?
In the second ground of any other reason: a subjective test may be employed. S. 201(1) of the constitution highlighting how a member of INEC could be removed states that “ any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office ( whether arising from infirmity of mind or body or any other cause) or for misconduct.” Let us note that “any other cause” in this provision is the same thing as “any other reason” in S. 146(1) of the constitution. The Supreme Court interpreting “any other cause” in Gov. of Kwara State & Anor V. Ojibara & 6 Ors. (2006) 11-12 SC P. 142 held that “it seems … that the essence and effect of the ground is that the holder of the office is removable if for any reason, he is unable to discharge the functions of the office. The mention of infirmity of mind or body is a manner of expressing that health indisposition will not be accepted as excuse for the inability to discharge the functions of the office. This is because the phrase ‘any other cause’ is embracive and much more extensive in scope than infirmity of mind or body. Earlier in the same case reported as Ojibara V. Gov. Kwara State (2004) 30 WRN P. 64, the Court of Appeal held that ‘ any other cause’ in this context is “ inability to discharge the functions of office arising from any other cause should mean inability to discharge the functions of office arising from any negative attitude. Consequently, any other cause must mean negative attitude resulting in inability to discharge the functions of office. Onnoghen JCA (as then was) gave a broader understanding of the phrase ‘any other cause’ He said that “a broader interpretation is what is intended by the legislature. Thus ‘any other cause’ will include chronic or habitual absenteeism, nonchalant attitude to work and / or general ineffectiveness, ineptitude , etc. These do not relate to infirmity of body or mind. They relate to the nature of the individual and his attitude or character.” In other words, ‘ any other reason’ as stated in S. 146(1) of the Constitution as a ground of removing the president will include chronic or habitual absenteeism , nonchalant attitude to work and/or general ineffectiveness, ineptitude , etc.
The president has been habitually out of office on health grounds and as the Supreme Court noted above that “health indisposition will not be accepted as excuse for the inability to discharge the functions of the office.” To add to the general ineffectiveness of governance, the president left the country without handing over to the Vice-President bringing to comatose the discharge of the president functions. Is this not a nonchalant attitude to work? By the time he returns to the country, the legislative bills waiting for his signature may have pilled up. Letters from foreign missions and organizations demanding his attention may have pilled up too. He may return to face serious politicking over the budget he could not present himself to the National Assembly. Yet the president needs some rest when he comes back. So who will bell the cat? A stitch in time we were told saves nine!
Chimezie Elemuo is a Port Harcourt-based lawyer.