The incapacity of Buhari: Constitutional lacuna and a legislative opportunity by Florence Ozor

Established democracies around the world are such because their laws develop with societal change. Every time a significant change occurs, it places a burden of responsibility on the legislature where it has not been proactive…Alas! Laws emerge as societies evolve. History has never failed in passing knowledge when it is sought; however failure to seek leaves a society impoverished….our fate as Nigerians seems to reflect our lack of pro-activeness in matters befitting patriotic and progressive mind-set.


Matters Arising

The nation had not heard from her president in over 100 days on a stretch and over 150 days cumulatively.  Increasing demand by citizens to know where and how our President was had been met with explanations that were both intellectually insulting and emotionally insensitive. The presidency responded by being most benevolent in giving access to rare artworks of pictures and videos detailing the pilgrimage of important Nigerians to see our President in London.  I would have suggested we all go…180million of us to London but the president is back which is cheaper because our economy could not have afforded it.

He is alive!

We are thankful President Buhari is alive and back; man should live as long as his maker wills. The unanswered question now is how well can he continue on the job? With no “credible” information, it is left to speculations.

The Constitutionality of PMB’s Absence

The now very popular Section 145 of the 1999 Constitution, which the president has complied with, is significantly different from the YarA’dua/Jonathan era to the extent that the then president did not transmit power to his Vice President leaving a vacuum in contravention of Section 145. We overcame that by the ingenuity of the Doctrine of Necessity by the legislature.

This time the issue was not that of transmission of power but one of the ‘incapacity’ of a president where he has complied with section 145.

The Question of Incapacity

Section 144 of the 1999 Constitution provides 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.”

Herein lays a DUTY of national importance on the members of the Executive Council owing to the fact that they work closely with the president and will know first-hand if he is unwell, yet this duty is most unfair.

The drafters of the Constitution did not take into account significance of subsection 5 which explicitly refers to the “executive council of the Federation” as a body formed by the president, carrying out duties as directed by the president. They naively did not consider the influence of a paymaster or the patronage inherent in the employment of the employee before imposing an issue of such severity on the executive council. As the popular adages goes, “You do not bite the hand that feeds you” and “He whose mouth is full with food cannot talk”.

Therefore, while it can be argued that Nigerians are the actual employers, being a public position, we will equally be guilty of the same naivety technically.

Members of the executive council are humans and the human instinct of self-preservation is such that each member will weigh the fallout should he become a lone voice- the consequences of which are dire- a political revenge that can outlive his successive generations.

Assuming we journey into the minds of the drafters and the Executive Council performed their duty in the sole interest of the nation, the provisions of subsection 2 would apply where President of the Senate and the Speaker of the House of Representatives would publish in the Official Gazette of the Government of the Federation and immediately the President or Vice-President ceases to hold office as from the date of publication.

But this can only come into effect after the activation of subsection 1. Here lies the lacuna in our constitution: where the oath of loyalty incapacitates the employees themselves, who will bail Nigerians?

Seizing the opportunity

Do not ask me if we have a dynamic legislature, you may not like my response; but this is when the legislature should look beyond the political chess board.  It is not about the occupier of the office nor party affiliations neither is it a sentimental issue.  The legislature must reflect and realise the enormity of their role for the sustainability of our democracy. To address the constitutional voidoverlooked in section 144, the following must be considered:

What is the extent of “incapacity?”

How many days can a president be absent on health grounds before he is deemed incapable of discharging the duties of his office?

What happens when the members of the Executive Council fails to report the president incapacity?

Can the health record of the president be made available to the National assembly in line with subsection 4 to determine the degree of incapacity?

How long is a president allowed to be out of the country for whatever reason while not on official duty?

How long can a delegate remain a delegate?

Short-changing Nigerians

Businesses have amassed more profit via the Buy one Get one free marketing gimmick – Democracy is the same only that it is supposed to be better, meaning Elect one Get one free which gives the benefit of two for better efficiency and eventualities.

Nigerians should not be short-changed for over 100 days in future.

Now is the time for us to hold the National Assembly accountable to their constitutional duty.

@florenceozor