RULING FROM ABROAD

Buhari’s power transmission policy change defeats the purpose of the First Amendment, argues Bolaji Adebiyi

President Muhammadu Buhari left the country for Kenya on Tuesday for an official engagement. A statement by his media aide, Femi Adesina, said the president would proceed from there to London to attend to his health for two weeks. The disclosure on the medical tourism aspect of his trip is interesting given the state he left the country.

Somehow, the news also came that the president’s wife was abroad, somewhere in Dubai. There was no disclosure about what she was doing there. But a viral video later showed governors’ wives bearing flowers and a cake congratulating her on her 51st birthday. They danced joyously towards her even as she wrapped her arms around them one after the other.

The two incidents immediately sparked off a public conversation, particularly on social media. Happening at a time Nigerians were looking for fuel to go about their businesses, and when university lecturers were on a warning strike, some people thought these smacked of insensitivity. But this, no doubt, is a weather-beaten conversation. Nigerians have been through it many times in the past.

On the president’s frequent medical trips abroad, they were told that it was a pre-presidency thing. It is where his doctors have always been, his officials always say. As for his wife’s recurring presence in Dubai, officials say that one is not a public official and owes no one any explanation.

On the face of it, the government officials may be right. After all, the president is both a private and public personality. His health is private to him and his public status should not deny him of his right to Medicare of his choice. However, there is a public policy issue involved. Should a public officer who has the responsibility to provide adequate public health infrastructure but fails to do so be allowed to use public resources to access medical care abroad?

There have been conversations around this too with many public analysts proposing legislation that would bar public officers from accessing social services abroad for themselves and their families. Without a doubt, this would abridge the rights of the affected public officers. Perhaps the way to deal with that is for it to be enshrined in the constitution so it becomes one of the exceptions to the constitutional rights rules. This is worth revisiting in this season of amendments.

But that is if the constitution would be followed and not twisted to suit their whims as it is being currently done by the president who is currently on a two-week medical trip without handing power over to the vice president as stipulated in section 145 (1) of the 1999 Constitution as altered. This is not a new development though. It has been his practice since 2018.

Yet in the beginning, the president was faithful to the letter and spirit of the constitution. Between February 2016 and August 2018, Buhari handed over to his deputy, Yemi Osinbajo, five times, largely during his medical tours to London. During these early travels, the president in his letters to the Senate and the House of Representatives said he was handing over in compliance with section 145 (1) of the constitution. But from April 2019 he stopped transmitting power. So, what changed?

As usual, the president did not consider it appropriate to explain either his change of attitude to his deputy or his interpretation of sections 145 (1) & (2) of the constitution, leaving the public to conjecture. The general suspicion is that Buhari changed his policy after the August 7, 2018 sack of Lawal Daura, his internal security spy chief, by Osinbajo, who exercised his power as the acting president. It was speculated that the vice president did this without sounding out his boss, raising fears among the power brokers at Aso Rock that given further opportunities he might rock the boat.

For five months the speculation persisted without any clarification from the presidency until Inibehe Effiong, a public interest lawyer approached the court for the interpretation of section 145 (1) of the constitution, asking whether the president’s habit of not handing over to the vice president while on vacation was not a breach of the grundnorm. That was in September 2019.

The response of Malami, Buhari’s attorney-general and minister of Justice, was quite interesting. The president, he told the court, was not in breach of the constitution because under section 145 (2) Buhari has 21 days within which to hand over power when on vacation or otherwise unable to discharge the function of his office.

Any foundation student of Constitutional Law would find this argument to be puerile. Section 145 (2) referred to by Malami, a senior advocate of Nigeria, is contingent on the main section 145 (1), meaning it is when the latter does not happen that the former kicks in.

Section 145 (1) states, “Whenever the President is proceeding on vacation or is otherwise unable to discharge the functions of his office, he shall transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives to that effect, and until he transmits to them a written declaration to the contrary, the Vice-President shall perform the functions of the President as Acting President.” (Emphasis mine.)

The operative words here are “whenever” and “shall,” meaning the moment the president proceeds on vacation, he must transmit a written letter to the National Assembly for the purpose of handing over power to the vice president. But if this does not happen, then section 145 (2) kicks in.

It states, “In the event that the President is unable or fails to transmit the written declaration mentioned in subsection (1) of this section within 21 days, the National Assembly shall, by a resolution made by a simple majority of the vote of each House of the National Assembly, mandate the Vice-President to perform the functions of the office of the President as Acting President until the President transmits a letter to the President of the Senate and Speaker of the House of Representatives that he is now available to resume his functions as President.”

This section was part of the First Amendment in 2010, which arose from the failure of President Umaru Yar’Adua to transmit power in writing to Vice President Goodluck Jonathan when he proceeded on a medical trip in November 2009. Under the principal section, the operative word was “may” which gave the president discretion. Following that experience, the legislature strengthened the section by substituting “may” with “shall,” which in law means “must” and added subsection 2 in case the president is unable to comply with subsection 1.

The purpose of the First Amendment was to cure the mischief of a president abusing the discretion donated to him by the constitution. Malami’s argument clearly negates this and ought to be repudiated. Unfortunately, A. O. Faji, the Federal High Court judge sitting in Lagos, who presided over the matter upheld the attorney-general of the federation’s submission, saying it was constitutional for the president to go on holiday without transmitting power, provided the vacation does not exceed 21 days.

As curious as this ruling was, the presidency has hung on to it like an article of faith. Although the applicant has promised to test the judgement upstairs, it remains the law even if it does not give a concrete explanation as to why the president would no longer trust his deputy with power.

For Buhari who is approaching the lame-duck stanza of his mandate, his I-don’t-care attitude may not mean much to Nigerians, who by now are accustomed to his go-to-hell approach to public discourse. But for Osinbajo, it’s a significant political disaster; a clear vote of no confidence in his ability to hold the office by a principal who should know his capacity and capability. The electioneering campaign question would be, “If those who know him cannot trust him, why should we trust him with our votes?” Knowing the Redeemed Christian Church senior pastor and smooth talker well, he may yet have an answer in the days ahead.

Adebiyi, the managing editor of THISDAY Newspapers, writes from bolaji.adebiyi@thisdaylive.com