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Presidential Medical Incapacitation: Can the New EXCOF Invoke Section 144 Against President Yar’adua?

April 21, 2010

Now that the acting President has assumed, “Presidential powers” by virtue of the National Assembly’s resolution, certain agent provocateurs have not rested on their oars. This time around they are pushing that the acting President be made to assume “full Presidential powers”. According to media reports, the game plan is to have the new cabinet invoke Section 144 of the Constitution.

Now that the acting President has assumed, “Presidential powers” by virtue of the National Assembly’s resolution, certain agent provocateurs have not rested on their oars. This time around they are pushing that the acting President be made to assume “full Presidential powers”. According to media reports, the game plan is to have the new cabinet invoke Section 144 of the Constitution.
To these persons, it would be easier to accomplish this task with the new cabinet because their loyalty to the acting President who appointed them. In fact, some persons have argued strenuously that the former cabinet was dissolved to pave way for this new cabinet so that they could easily activate Section 144 because according to them, the former cabinet was populated by die hard supporters of President Yar’Adua.

Perhaps, to effectively tie the hands of the new EXCOF from contemplating the invocation of s.144, the President’s kitchen cabinet decided that the President should have “a tete-a-tete” and a “praying” session with some selected clerics and Muslim Ummah. After the meeting, we were told that the President was in “good shape” and that “contrary to media reports”, the President was not “in an incubator” and that he would “resume anytime from now” and a further threat was issued to those contemplating the invocation of Section 144 to the effect that “any attempt to wrest powers from the President would have dire consequences”.

We have given a lengthy prolegomena in order to situate this discourse in its proper perspective, however, our brief herein, is neither to focus on the petty politics being played by the pro Jonathan and anti Yara’Adua forces regarding the dissolution and reconstitution of the new EXCOF nor to comment on the veracity or otherwise of the clerics’ meeting with the President nor the subtle certification of fitness by the Muslim Ummah but to examine Section 144 of the Constitution to determine whether the power therein granted can be exercised by a cabinet that never worked with the sick President.

     Without wasting time, we propose to argue that the new EXCOF cannot exercise the power granted to it under s.144 with respect to President Umaru Musa Yar’Adua because they have never either worked with him in the discharge of their Executive responsibilities as Ministers as provided for in Section 148(2) of the 1999 Constitution or had the opportunity of observing him in close quarters to be able to form an empirically verified opinion as to whether he has or lacks capacity to discharge the functions of his office.

No doubt, the framers of the constitution created a strong presidency but knew that the men and women who would hold that office were neither immortal nor immune from diseases. They also recognized the fact that a sick President begets a sick presidency and a sick presidency begets a sick country. Hence, the possibility of the President falling sick and unable to discharge the functions of his office was envisaged, and in order to ensure continuity in government, when the holder of the office falls sick, framers of the constitution decided to insert a constitutional device which allows a sick President to be declared incapacitated when he is unable to efficiently discharge the functions of his office as a result of infirmity either of the mind or body and this paves way for the Vice President to assume office. This constitutional device originated from America and it is now popularly known as the Twenty-Fifth Amendment. This device was “transplanted” into the Nigerian Constitution via Section 144.

American legal historians are unanimous in their position that the Twenty-fifth amendment has its antecedent in legal memos developed first during the Dwight Eisenhower’s administration following the President’s heart attack in 1956. These Memos of understanding between President Eisenhower and Vice President Richard Nixon prescribed courses of action for various incapacitation scenarios. Subsequent presidents and their successors continued to craft such memos and the language of the memo and its policy framework finally found its way into the Twenty-fifth amendment.

It is beyond peradventure that Section 144 vests the EXCOF with an enormous power which when exercised terminates the tenure of either the President or the Vice President depending on whom they are wielding the power against and as such, this onerous power must be exercised bonafide without which the whole essence of it would be defeated. After all, to be incapable means “not able to do something”. E.g. the stroke rendered her incapable of speech; to be incapacitated means “to make too ill to live and work normally”. As such, a declaration of permanent incapacitation must be a product of direct observation of the subject not hearsay or ipse dixit of Ministers who never saw the President to know whether he “has become too ill to live and work normally”.

No doubt, the task thrown upon EXCOF by the Constitution in respect to s.144 can be likened to that of a forensic pathologist who is saddled with the task of determining the cause of death in a criminal proceeding. In performing this task, he must see the cadaver and examine it in order to be able to give a sound opinion as to the cause of death. It would be incongruous, to say that a pathologist, could give an informed opinion in the absence of the dead body. Whilst we admit that the forensic pathologist could give an opinion on mere suppositions alone we also hasten to add that that would be less credible than when he actually saw the body and examined it. How can the new EXCOF declare President Yara’Adua incapacitated without seeing him to determine his capacity? Won’t such a declaration lack credibility?

Section 144(1) provides that:
                            the President or the 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 Representative.

A close examination of Section 144 will reveal that the process is kick started by the EXCOF and verified by a medical panel appointed by President of Senate. In essence, it is a bipartite arrangement but notwithstanding the verification by the Medical panel, the Constitution still mandates the EXCOF to act in good faith. Apart from the numerical requirement of two thirds of Ministers who must make the declaration, it is also expected that Ministers who are to make the declaration must have worked closely with the President well enough to be able to form an opinion that he “can no longer discharge the functions of his office” which is the very essence of Section 144.

Declaration of incapacitation is an act that can only be arrived at upon a close and empirical observation of the subject because as stated supra, to be incapacitated means to be too ill to live and work normally. It follows that before the EXCOF can come to the conclusion that the President is “too ill to live and work normally” as we have defined supra, then they must have seen him physically and observed him with their naked eyes while discharging their Executive functions as provided for in Section 148(2) of the Constitution.

Section 148(2) provides that:
the President shall hold regular meetings with the Vice President and all Ministers of Government of the Federation for the purposes of-

(a)     determining the general direction of domestic and foreign policies of the Government of the Federation.

(b)     coordinating the activities of the President, the Vice President and the Ministers of the Government of the Federation in the discharge of their executive responsibilities; and

(c)     advising the President generally in the discharge of his executive functions other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other person or body.

It is submitted that the “regular meetings” provided for in subsection (2) of Section 148 is the weekly Federal Executive Council meeting which is usually chaired by the President. It is further submitted that it is only during this “regular meetings” that the two thirds of the Council of Ministers can have the opportunity of determining whether the President is incapable of discharging the functions of his office. We hold this view because during these weekly meetings usually spanning several hours, debates are held, positions are canvassed, Memos are discussed, approvals are given and the President as the chairman moderates. These are actions which require mental acuity and stamina and where these are lacking, it would easily be discerned by Ministers during such meetings.

Furthermore, it is at this forum that Ministers are able to watch the demeanor of the President and form an opinion as to his capacity to discharge the functions of his office. The new cabinet has not met or worked with President Yar’Adua and as such lacks the locus to activate Section 144. As far as we are concerned, doing that would for a want of better expression, amount to “the brutal absurdity of commanding a man, today, to do something yesterday”.
    
     It would therefore amount to voodoo intellection to argue that the reconstituted EXCOF can activate Section 144. This would be legally and factually impossible in view of the points canvassed supra, however, since Nigeria according to Gen Domkat Bali Rtd, is a country of “anything goes”, we will not be surprised if the new EXCOF activates the said Section in response to “popular agitation” in the media. Put differently, the new EXCOF can only activate that section with respect to the acting President whom they are currently working with if the need arises.

If we are to stretch this further, we can argue on behalf of proponents of activating Section 144 that the new EXCOF can act on opinion of the fourteen reappointed Ministers whom have worked with President Yar’Adua in the past and such opinion would be passed to the new members of cabinet for “adoption” of same for the purpose of Section 144. But on a closer look, it is clear that fourteen reappointed Ministers does not amount to two-thirds majority required by Section 144 and if the new members of EXCO act on the “adopted” report that means they would be acting on hearsay and at any rate, these two scenarios will not meet with the requirement of Section 144 which is “a face to face” observation by two thirds majority of Cabinet Ministers in the course of exercising their Executive Responsibilities as Ministers (s.148 (2)).

It must be noted that even in the United States of America, where we “transplanted” our constitution and government from, the problem of Presidential medical inability has remained the most insoluble problem. It is not our business here, to discuss the details of the problem in America, those interested in that endeavor can take a voyage of discovery to R. Silva’s book, “Presidential Succession”, (Ann Arbor, 1951). The Twenty-Fifth Amendment which Congress finally proposed to the States in the aftermath of President Kennedy’s assassination with the Vice Presidency vacant and a President, who had previously suffered a heart attack, seemingly afforded a workable procedure.

The Amendment proposed that if the President claims to have recovered, then he should resume his office after notifying the acting President, the President of Senate and Speaker of the House of Representatives. But if the Vice President and a majority of the cabinet signify in writing within four days that they disagree, and then Congress must, within 21 days decided by a resolution supported by a two thirds majority of both chambers as to whether the president is able to resume his office, otherwise the President must resume his office. The 1999 constitution does not have a provision for resumption of office upon recovery.

It is submitted that a provision like the Twenty-Fifth Amendment should be inserted in the Constitution by the National Assembly in their current task of amending the constitution. It is further submitted that such an amendment would be a step in the right direction because it would enable the President to resume and complete his term upon recovery hence guaranteeing security of tenure. Such an amendment would also act as a check on Ministers who might want to be capricious in exercising the power granted to them under Section 144.

To settle this hoopla, we propose two solutions. First, the acting President should continue in office in his current status since he is already exercising all the powers of a “full President” and he has not been undermined in any way. Second, if Nigerians are unsatisfied with the current status quo and want a change, let the civil societies and pressure groups resort to peaceful protests to force the President to throw in the towel (resignation). In a democracy, ultimate powers lie with the people. Protests have worked to effects changes in government elsewhere (recall the Orange and Tulip revolutions). The “Red Shirt” revolution is currently ongoing in Thailand. It can work in Nigeria too.

Finally, the frenzy generated upon reconstitution of EXCOF is misconceived since it is borne out of the erroneous assumption that the new EXCOF can activate s.144 to remove President Yar’Adua. Based on the arguments advanced supra, the new EXCOF lacks the power to make such declaration. As such, calls by the Action Congress Publicity Secretary, CNPP, The Save Nigeria Group and the rest groups on the new EXCOF to activate Section 144 should also be ignored and treated as partisan statements lacking in logic, and devoid of sound legal reasoning.

Abiola Olawole.
Practices law in Mkpanak, Akwa Ibom State.

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