Wednesday, July 12, 2017

President Muhammadu Buhari's Illness: Any Lessons From The Past? By Jiti Ogunye.

As president Muhammadu Buhari continues to battle his ailment in a London hospital, Jiti Ogunye has raised pertinent questions about what the situation connotes.

In December 2009, we published in the media an article titled “President Yar Adua’s Illness, the Law and the Constitution”. In the article which appeared, in part, in Mustapha Ogunshakin’s Gavel International, and in The Guardian newspaper, we discussed the need to allow the dictates of the Constitution and our laws to govern the politics of President Umaru Yar’Adua’s ill health, which had thrown governance in Nigeria into a state of crisis at that point in time. We then called on President Umaru Yar’Adua to resign from office or be impeached for suppressing or misrepresenting the true facts of his ill heath, and thus obtaining power by false pretense.

In the prevailing circumstances surrounding the illness of President Muhammadu Buhari, his seeking of medical treatment overseas, the non-disclosure of the facts of his ailment to the Nigerian people, and the mismanagement of information surrounding the true state of his health, we have found our analyses and submissions in that article very relevant. It is our humble belief that there are lessons that our country could learn from that intervention, and we decided that the earlier piece be republished for our collective enlightenment.

May we clarify upfront that this article is not purposed to be a weapon of legal disquisition in the armoury of those who are gunning for the resignation of President Muhammadu Buhari from office. After a careful consideration of the facts and circumstances of President Buhari’s illness, especially because he did not lie about, or suppress information of his state of health prior to the 2015 Presidential Election, we are not able, at this point, to make a call for President Buhari’s resignation from office on the ground of incapacity to perform the functions of the office of president. The president, dutifully, has been transmitting communication to the National Assembly, and transferring presidential power to the vice president, as acting president, on occasions when he has had to travel overseas for medical treatment, in accordance with the dictates of Section 145(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended. That section was amended in July 2010, as a fallout of President Yar’Adua’s health related constitutional crisis, to provide in Section 145(2) that if the president is unable or fails to transmit the letter communicating his temporary absence from presidential power to the National Assembly within 21 days of the occurrence of the temporary absence, the National Assembly shall mandate the vice president to function as an acting president.

We do not share the view that President Buhari be harangued, blackmailed or hounded out of presidential power. But we believe that he and his presidency owe Nigerians a duty of disclosure of his current state of health to enable Nigerians and the Federal Republic of Nigeria assess his health status and form a guided, frank, honest, rational, fair and just opinion. If the disclosure does not warrant a transfer of power, the cloud of suspense hanging over the nation will be lifted. Nigerians will be happy to wait for the appointed time of the arrival of the president. If the disclosure warrants a transfer of power, however, the delicate task of doing so must be undertaken with empathy, statesmanship and patriotism, taking into consideration Nigeria’s geopolitics, ethno-religious diversity, and plurality of contending political, economic and social interests. Sobriety, consensus building, and spirit of accommodation must undergird an arduous task like this. Unfortunately, the president has no organic, cohesive, principled or disciplined political party that can carry out this task. The president’s party is a bad contraption of a special purpose vehicle for political power ascendancy and expansion of economic territoriality. Sad. May Nigeria survive.

Following is a reproduction of the initial article:
President Yar Adua’s Illness, the Law and the Constitution
It is now almost a month since President Umaru Musa Yar’Adua was flown out of Nigeria on Monday, November 23, 2009 for urgent medical attention in Saudi Arabia. Upon his arrival in that country, the president was admitted to King Faisal Specialist Hospital and Research Centre in Jeddah. Two days after his admission, which was on Thursday the 26th of November, the presidency, ineluctably, told the nation the nature of the president’s ailment: pericarditis, an inflammatory condition of the coverings of the heart. The presidency assured the nation that the president, who was aware of the rumour of his death on Wednesday, the 25th of November, and who, naturally, was saddened by that rumour, was receiving and responding to treatment. However, Nigerians were not told, and up till now have not been told, when the president will complete his medical treatment, return to Nigeria and resume his presidential duties. The nation has since been told by the Executive Council of the Federation [FEC] that the length of the president’s overseas treatment and the time of his return would be determined by his team of doctors. The nation has also learnt from media reports that causes of the intumescent pericarditis include autoimmune disorders, chest trauma, cancer, kidney failure, tuberculosis or drugs.

There have been many reactions to the current state of health of the president. Some have reasoned that there are sufficient indications that the president can no longer, for reason of poor health, perform the functions of his Office, and that as such he should resign. The FEC and the president’s political party, the PDP have rejected the call for resignation. Some have called on the president to make and transmit a written declaration to the Senate and House of Representatives, indicating that he has proceeded on medical vacation or that he is unable, in the prevailing circumstances, to discharge the functions of his office, thereby paving the way for the vice-president, Jonathan Goodluck to become the acting president. In reaction to this call, FEC and other political interests have said that there is no power vacuum, that the president is still governing the country, vide telephony, from his sick bed in Saudi Arabia, and that the vice president is in charge of the affairs of State. The Senate, House of Representatives, PDP, the FEC, governors and other political actors (for that is what they are) relentlessly have been calling for national prayers. In ecumenical solidarity, Muslim and Christian groupings have been making a public show of their fervent prayers to God for the quick recovery of the president. While the National Assembly has declared a “state of praying emergency”, its PDP-led leadership has squelched spirited attempts by members of the legislature to debate the state of health of the president and its implications. The Senate has rejected a motion and the House has disallowed a protest, in this regard.

It is obvious that the reactions of most of the political actors are actuated by “ill-vested” political interests and economic calculations. Here are some of the considerations: If the president resigns from office, “power at the centre” will return to the “South” and “the North” will be left high and dry, until 2011; the First-Ladyship will be lost; Goodluck Jonathan becomes president, many of the FEC members will lose their appointments, and other persons holding key positions in the federal government may not retain theirs either, based on the adherence or non-adherence to the federal character principle; the ruling party will be weakened and opposition parties may take advantage of this weakness; other fringe politicians in the PDP who are victims of President Yar Adua’s ascent to power will be opportune to secure space within the party and position themselves for re-election in 2011. Also, the political offices zoning arrangement within the PDP will be disrupted, occasioning the loss of privileged positions by some current office holders, including principal officers in the National Assembly; the certainty of Jonathan’s vice-presidency, and thus the grip of the South-South geopolitical zone of the country on the rudder of the Ship of State (which is seen, in some quarters, as yielding incremental dividends of the Niger Delta Ministry, amnesty to militants, 10 percent oil revenue equity for the benefit of oil producing communities, et cetera) will be overtaken by the uncertainty of a Jonathan presidency that surely will be haunted by the fear of the unknown, arising from troubling precedents in our nation’s history. Hence, the president must not transmit a declaration of non-availability or inability to exercise the functions of his Office to the National Assembly to pave way for the acting presidency of the vice-president because of the political risk involved, and because of the unintended consequence of such transmission validating the call of those clamouring for the resignation of the president from office, on the ground of incapacity. These considerations are endless.

In this article, we intend to look at the current state of health of the president vis-à-vis the law, and make suggestions on how to “move our country forward”. While we do not grudge politicians and religious leaders for looking at this subject from partisan and spiritual lenses, we insist that this subject is, first and foremost, a matter of law and the Constitution. The Constitution does not provide that whenever the president is unable to discharge the functions of his office, owing to poor health, the functionaries of State should exact prayers from the nation. The Holy Bible or Holy Quran may enjoin us to pray for the sick, but Nigeria is governed in accordance with the provisions of the Constitution, and not in consonance with Biblical or Quranic verses. We do not wish the president dead. We acknowledge that, at fifty-eight years, he is not an old man. His mother, who was bereaved when her son and the president’s brother, Shehu Musa Yar’Adua, was “murdered” in 1997, during the pernicious reign of General Abacha, late military Head of State of Nigeria, is still very much alive. No right thinking person would want to see the old woman bereaved again. The president also has a family, including his wife, who is entitled to his continued existence. Above all, the president has a life, and a right, like everybody else, to prolong that life by all medical means possible.
In this land and under this “democracy”, we are not forbidden by law to deliberate on the state of health, good or ill, of the president. On the contrary, we are, by implication, required by the law and the Constitution to thoroughly examine the state of health of any person that aspires to hold the highest public office in the land, during an electioneering campaign, in order to determine the physical and mental fitness of that person to occupy the office of the president of our country. We are also expected by the Constitution, after an election, to continue to scrutinise the state of health of the president. Why this is so is not only because the Constitution makes good health a factor in the election of a president and in his continuance in office, after election, until the end of his term of office, but also because the burden of duty of the office of the president needs a healthy shoulder to rest on, and a sound mind to lighten the weight of that burden. We, therefore, will not shy away from discussing the current state of health of the president and its implications for our constitutional democracy and the rule of law.
The job of the president of Nigeria is full time. It is not a part-time political appointment. Section(S) 138 of the Constitution provides that “the President shall not, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever”. Maintaining and preserving the dignity of the high office of the president is the rationale of this provision. But it is clear also that the Section is an indication of the all-consuming nature of the job of the president. This being so, it can be said that the Constitution expects any person who wants to be president to be as fit as a fiddle to do the job.
S.137(1)(c) of the Constitution provides that “a person shall not be qualified for election if, under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind”.
It is our considered opinion that for a person to be disqualified from election to the office of the president, under the Section, his state of mental health must have been pronounced upon, by a judicial or a quasi-judicial body, which can only adjudge or declare, under a lunacy law. A medical report that a person is a lunatic or a medical certification that a person is undergoing a psychiatric treatment is not constitutionally sufficient to disqualify that person from contesting for the office of the president. In Action Congress v. INEC, 2007, 12 NWLR, (Pt. 10480), 222, the Supreme Court of Nigeria interpreted the provisions of Section 137 (1) of the Constitution of the Federal Republic of Nigeria, 1999; Paragraph 15 of the Third Schedule to the Constitution, which lists the powers of INEC; Section 32 (4, 5, & 6) of the Electoral Act, 2006; and Section 6(6) (a & b) of the Constitution, which grants the judiciary exclusive power to determine all disputes between authorities and persons, and determine all actions and proceedings relating to the civil rights and obligations of the person. It should be noted that under Section 137 (1) (c) of the Constitution, “a person stands disqualified from contesting election to the office of President if under the law in any part of Nigeria he is adjudged to be a lunatic or otherwise declared to be of unsound mind.”

By the decision of the Supreme Court at Pp.259.paras D-E; 265, paras.F-G; Pp257-258, paras.F-C; 265-256, paras.H-A; 271-272, paras. G-E; 282-283, paras. G-E; 305, paras. A-G; 316-317, paras H-F; Pp. 262, paras. A-D; 272-273, paras. H-B; 276, paras. B-C; and 285, paras B-D, it is clear that a judgment of lunacy or a medical declaration of unsoundness of mind will not, by itself, disqualify a person from contesting for the office of president. INEC cannot suo motu (that is, on its own) disqualify any candidate for reason of being adjudged a lunatic or for being declared to be of unsound mind, even if the person was the one that submitted a document to this effect to INEC. It is only a court of law that can act on the judgment of lunacy or a declaration that a candidate is of unsound mind, to disqualify the candidate. If an adjudged lunatic puts himself up for election and there is no court action or order to have him disqualified from participating in the election, INEC is duty bound to present him to the electorate to be voted for. This is the wisdom of the Supreme Court’s judgment!

While S.137(1)(c) of the Constitution makes soundness of mind a condition for qualification for election to the office of president, there is no analogous provision in the Section which makes physical fitness or soundness of the body a condition for qualification for election to the office of the president. This point is important because, as it shall be revealed below, permanent incapacity of a president disentitling him to continue to govern has two legs: infirmity of body or mind. Does it then mean that a person who has a sound mind, but whose health is seriously impaired or who is terminally ill is encouraged to seek election as president, or is the Constitution relying on the political and democratic judgment of the electorate to determine the suitability of such a person for election as president? Is it out of sensitivity to the situation of physically challenged persons, who, medically, may be categorised as “infirm in body”, but not “infirm in mind”, which made the framers of the Constitution to refrain from making soundness of body “a condition for qualification to contest a presidential election; or is it because of the difficulty in agreeing to a comprehensive list of ailments that could be said to pose a serious threat to life or is categorised as causing infirmity of the body? For example, can cancer, leukemia, nervous disorder, epilepsy, renal problem, liver disease, hypertension, hypotension, stroke, Parkinson disease, tuberculosis, hepatitis, HIV/AIDS, and diabetes be categorised as infirmity of the body; and if they could be so categorised, should any of these health situations bar a person from contesting for the office of the president?

Although we do not have answers to all the posers above, we can, at least, declare that the Constitution does not encourage a person whose health is seriously impaired or who is terminally ill to seek to occupy the office of the president. It cannot be the intendment of the framers of of the Constitution that such a person, whose existence, medically, is not assured for a year, for example, should participate in an election to the office of the president, the term of which is four years, thereby standing the chance of being elected to such an office.

S. 8 of the Labour Act, Cap 11, Vol. 8, Laws of the Federation of Nigeria, 2004, requires that every worker who enters into a contract shall be medically examined by a registered medical practitioner at the expense of the employer. S.91 of the Act – the interpretation section – which, within the meaning of the Act, defines who a worker is, excludes persons exercising administrative, executive, technical or professional functions as public officers or otherwise, from the definition of “worker”. The Public Service Rules, however, provides for public servants. Rule 09103 in Chapter 9 of the Rules stipulates that:
“Every person selected for appointment either in a temporary or in a permanent capacity shall be required to present himself for examination to a Government Medical Practitioner (or one so approved by Government) with a view to its being ascertained whether he is physically fit for service…if the candidate is not finally passed as physically fit for service, his appointment shall not be proceeded with.”
Rule 09104 stipulates further that:
“The Permanent Secretary/Head of Extra-Ministerial Department may at any time (and shall, if the officer so requests) call upon an officer to present himself for examination to an approved or Government medical practitioner, or to a duly constituted medical board with a view to its being ascertained whether the officer is physically capable of performing the duties of his appointment to which it may be proposed to transfer him.”
Rule 09207(a) says that:
“Approval for journeys outside Nigeria for medical treatment will only be given by the office of the Head of Service on the recommendation of the Permanent Secretary, Fed. Min. of Health, and will be confined to serious cases where a patient life is in danger or where the examination is necessary for diagnosis of difficult cases or to ensure that a patient is fully recovered and able to undertake the duties of his office…”
Instructively, Rule 01001 in Chapter 1 of the Rules provides that in so far as the holder of the office of the president, among others, is concerned, the Rules apply only to the extent that they are not inconsistent with the provisions of the Constitution, in so far as his conditions of service and any other law applicable to him is concerned.

Happily, no constitutional provision governs medical examination, infirmity or incapacity of a presidential candidate or a president-elect before assumption of office, in order to determine his/her medical fitness to hold the office. This being so, the provision of the Rules may well supplement the silence of the Constitution in this regard, to morally require (in the absence of a constitutional obligation) that a presidential candidate should disclose publicly the true state of his health during an electioneering campaign.

The provisions of the Labour Act and Public Service Rules, cited above, are very relevant to our discussion. The provisions show that before the employment of every worker and appointment of every public servant in Nigeria, a medical examination is conducted to determine the fitness of the prospective worker or public servant for the employment or the appointment. It is in pursuance of these provisions that any intending member of the armed forces, the police, customs, immigration or any of the other law enforcement or security agencies is required to undergo a compulsory medical test. The president is the number one public servant in Nigeria and also the commander-in-chief of the armed forces. A prospective holder of the office of the president ought, therefore, in our humble view, to undergo a medical examination to determine his mental and physical fitness to occupy the office, and to publicly disclose the result of the examination. If the prospective holder has been undergoing a continuous medical examination or treatment, he has a duty also to publicly disclose this fact and the nature of his ailment. This is the only way the electorate will be availed of the opportunity to politically determine his fitness to occupy the office to which he seeks election. We believe that this is the reason Senator John McCain, the Republican candidate in the 2008 presidential election in the United States of America, released his medical records of over 22 years for public scrutiny. If a candidate suppresses information or gives misleading information regarding the state of his health or ill health and is elected the president, then his election will be vitiated by fraud, deceit, false pretences or misrepresentation. Just as a contract can, in law, be vitiated by fraud, deceit or misrepresentation, and voided on that basis, the tenure of such a president in office can be halted by the electorate, through their elected representatives. Even if the elected representatives of the electorate decide not to make an issue out of the nondisclosure or misrepresentation, they have a legislative duty to take a hard look at the critical health state of a sitting president, as it is.

S.144 of the Constitution provides extensively as follows:
“(1) the President or Vice President (VP) 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 VP 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 VP 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 VP 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.”

From the wordings of S.144 of the Constitution, it is clear that those who are constitutionally empowered to flag off the removal of the president or VP on the ground of incapacity to discharge the functions of his office are members of the Council, brought into the executive branch of government by the president and VP, and who, presumably, are loyal to either or both of them. To this extent, it can be seen that, except the members of the Council are patriotic, they are unlikely, owing to selfish political reasons, to declare that the president or VP is incapable of performing the functions of his office, even when the president or VP is glaringly in such a state of incapacity. Obviously, before the National Assembly (NA) can exercise its powers under the Section, the Federal Executive Council must have acted. Does it then mean that if a president or VP is in a state of undeclared but apparent incapacity, nothing can be done by the legislative and judicial arms of government? Our answer to this question is No. If the Council decides not to act, a court of law may compel them to perform their public and constitutional duty, in an action, instituted by a Nigerian that is clothed with the requisite locus standi. The NA, acting together or separately as Senate and House of Representatives, could pass a resolution mandating the Council to act. If the Council does not have a preliminary medical foundation to act upon, owing to the refusal of the president or VP to grant access to his medical records, to enable the Council act appropriately, the NA could pass a resolution mandating the president or VP to make disclosures, regarding the state of his health. If the president or VP defies the resolution, the defiance could be regarded and treated as an impeachable offence or an act of gross misconduct, depending on the balance of political forces in the NA. The NA, which has power, under S. 4(2) of the Constitution, to make laws for the peace, order and good government of the Federation, has general powers to take these oversight or check and balances measures that we have proposed.

Candidly speaking, S.144 is problematic. The removal of a President or VP from office on the ground of permanent incapacity suffers from a lack of definition of what may constitute a permanent incapacity. If a sitting President or VP goes blind, or becomes deaf, dumb or crippled due to an accident (President Kuffor of Ghana was involved in an automobile accident while he was in power) for example, does that constitute a permanent incapacity, as to render him unfit to discharge the functions of his office? Even if a certified medical report, required by the Constitution, says so, is such certification closed to argumentation or objection? On the other hand, can’t a sitting President or VP that suffers a devastating stroke, which though may not be a permanent incapacity, but which, all the same, will take the President or VP almost half of a whole term of four (4) years to recover from, be removed from office on the ground of temporary incapacity, even when such a temporary incapacity is not a ground for removal, specified in the constitution? Shouldn’t the indisposition or unavailability that would constitute a permanent incapacity under S.144 be determined also within the context of a four-year tenure of a president, rather than in relation to the indeterminate and usually indeterminable life-span of a president? Can a blind or deaf and dumb aspirant or contestant to the office of the President or VP be disqualified from so contesting because of the status of his disability, in the face of international norms and standards protecting the rights of those with disabilities? Why would S.57 of the Electoral Act, 2006 specially recognize the right of those with disabilities to vote, if this category of persons has no right to be elected, to the highest office in the land?

There is no doubt any longer that President Yar Adua is very sick and that he was very sick when he sought for and was elected to the Office of the President. From all available facts, this illness is not a sudden, isolated indisposition, but a continuation of an ailment that the President has been living with, but which the President has refused to fully disclose. As we will demonstrate below, the latest disclosure that the President is suffering from acute pericarditis is another carefully measured piece of information about the President’s health, and not the total picture of his ailment. Circumstances compelled the release of that piece of information; otherwise, mum would have been the word. In case anyone wants to challenge our assertion that the President’s ailment is very serious, we make bold to say that the fact that the President has been frequenting overseas for medicare, shunning the best that medical science could offer in Nigeria, is an undeniable proof that his ailment is serious. And this assertion of seriousness of the President’s ailment is not premised on the “kidney problem” the President once admitted that he had, nor based on the liver and Chung Strauss Syndrome diseases the President reportedly has, but which he has not confirmed, or on the now disclosed pericarditis. No. We derive further proof of the seriousness of the President’s ailment from what the law says.

As noted above, Rule 09207(a) of the Public Service Rules says that “approval for journeys outside Nigeria for medical treatment will only be given by…and will be confined to serious cases where a patient life is in danger or where the examination is necessary for diagnosis of difficult cases or to ensure that a patient is fully recovered and able to undertake the duties of his office…”.
Thus, it is beyond equivocation that the President’s case is serious and difficult, and that the President’s life is in danger.

We now come to the all-important question of whether, in the prevailing circumstances, the President is unable, on the ground of permanent incapacity, to discharge the functions of his office. It has been argued that under Section 144 of the Constitution, it is a medical panel that has the “exclusive jurisdiction” to determine, by a certified report, whether a president’s infirmity of body or mind has rendered him permanently incapable of discharging the functions of his office. The impression is, therefore, created that the question, whether a case of permanent incapacity of a president to discharge the functions of his office has arisen, is strictly a medical question, and not a political or legal question.

We submit that under the Constitution, the question of whether a case of permanent incapacity of a president to govern has arisen is, first, a political question; for it is the FEC that starts the process of removal of a president on the ground of ill health, by making a declaration of incapacity. In arriving at the declaration, the FEC, no doubt, may rely on medical reports, but the declaration the FEC makes is not a medical opinion or judgment. It is a political opinion, judgment or decision, and it is arrived at in exercise of constitutional power. Being an exercise of constitutional power, it is also a matter of law, and, therefore, a legal question. It is after the FEC has performed its political and constitutional duty of making a declaration of incapacity that the question becomes a medical one, to determine whether the incapacity is of a permanent kind. This is why the words “verify” and “certify” are used in Section 144, for the job of the medical panel is to verify and certify or refuse to verify and certify a case of permanent incapacity that has already been declared by FEC. The point we are underscoring is that under the provisions of Section 144, there is no prescription that declaration of incapacity by the FEC must be predicated on a medical evidence or report. How it may occur to the FEC that a case of incapacity has arisen to warrant a declaration to that effect being made is left open. Now, if the Constitution does not stipulate that the FEC must base its declaration of incapacity of a president to discharge the functions of his office on medical evidence, why is it being suggested by the National Assembly that Nigerians need to await a medical report, that may never come, before reaching a conclusion that a case of permanent incapacity has arisen?

It is our considered view that on the basis of available facts, President Yar Adua is incapable of discharging the functions of his office. What are some of these facts? Inexplicable absence from the last UN Summit; inability to present the 2010 budget before both Houses of the National Assembly and converting same into an epistolary exercise; embarking on regular and costly medical trips overseas to take care of his health, thereby distracting the business of government; inability to preside over the weekly FEC and other statutory meetings, et cetera. Whether this incapacity is of a temporary or permanent type may yet have to be medically ascertained, by verification or certification, but it is glaring that there exists a case of incapacity, arising from infirmity of the body, warranting the FEC to make a declaration of incapacity. This obvious incapacity also should have made the President to transmit, before now, to the President of the Senate and the Speaker of the House of Representatives a written declaration that he was proceeding on medical vacation and that he is otherwise unable to discharge the functions of his office, so that the Vice President can function as Acting President, in his absence, as provided under Section 145 of the Constitution. The refusal of the President to make this transmission is a breach of a clear constitutional provision, punishable legislatively by an impeachment proceeding; and also a refusal to perform a constitutional and public duty judicially correctable by an order of mandamus, pursuant to the power of judicial review of administrative and executive acts vested in our courts of law.

It is our humble but firm opinion that President Yar’Adua should immediately resign from office, not so much for reason of his obvious incapacity that is yet to be declared or for reason of his believed permanent incapacity that is yet to be verified or certified by a medical panel, but for obtaining, wielding and retaining political power by false pretences. The act of misconduct committed by the President is a political variant of the offence created by Section 419 of the Criminal Code Act: obtaining property by false pretences. It is politically indefensible and morally reprehensible.

To those who are moralizing the issue of the call for the resignation of the President, we say that this President cannot play the victim or blackmail Nigerians into sheepish silence. Nigerians have the right to hold opinions and the right to freely express their views; and they cannot be crucified for exercising this right. Our President has obtained presidential power by a grand deception, and we have the right to demand a resignation even on that score alone.

Before the April 2007 presidential election, the President, then the PDP candidate, did not disclose to Nigerians that he had any health problems or chronic ailment, even when reports of his ill-health were very rife. When he suddenly took ill during the campaigns and was flown to Germany, what Nigerians were told then was that the President had cold, carrtarh or flu . Of course there was a rumour that he had died, a rumour that was so pervasive that during the PDP rally at the MKO Abiola Stadium Abeokuta, his consummate mentor and campaign manager, President Olusegun Obasanjo had to make him speak to the rally and millions of television viewers locally and internationally to assure all that all was well. To further convince skeptics that all was well, candidate Yar Adua’s return to the country, vide MM International Airport, Lagos, and his departure to the Ado Ekiti Rally of the PDP, vide a presidential chopper, had to be relayed on the network service of NTA and AIT. Candidate Yar Adua had an opportunity then to disclose that he once had a kidney or other health problems, but he covered up. He could have done what John McCain later did in the last US presidential election when he turned over his 22 year medical records to the American public for scrutiny, to prove beyond doubt that, at 71 and as the oldest presidential candidate in US history, he was cancer free. But Candidate Yar Adua chose not to do that.
When the President again took ill in the first half of 2008, the official line was that his medical trip to Germany was necessitated by “malaria and allergic reaction to the use of drug, which resulted in a swollen face”. Again, there was a widespread rumour that the president had passed on. In the presidential media chat the President held on May 29, 2008, to commemorate one year of his administration in office, the President reacted to the rumour of his death by casually and belatedly disclosing that he had “kidney problems in 2000”. That disclosure was one he had an ample opportunity to make when he was gunning for the presidency, but which he refused to make. And when that disclosure was tersely made on May, 29, 2008, the President gave no expatiation on the nature or stage of the “kidney problem”: whether it was kidney infection or a case of renal failure. The President did not say whether that problem was solved in that year or later, or whether the problem persists till today. We do not know whether our President has had a kidney transplant, and if so when he had one. We did not know whether there were other health situations apart from the kidney problem. Rather than speak specifically and honestly about his state of health, the President chose to lecture Nigerians, once more, on the ordinariness of man, in or out of political power; human mortality and the inevitability and uncertainty of death.
In that chat, the President, who stated that he had been visiting a German hospital for twenty years for medical check-up, invited Nigerians to believe him that he did not have any serious ailment and that he was not going to die soon as being speculated by those who were playing God. The President even publicly challenged any person who wanted to test the vibrancy or otherwise of his health to a game of squash, which being a grueling sport of physical exertion, would clear any doubt that he was a sick man.
In our reaction to the presidential chat, published in the media, we had reasoned that if the president had to go to Germany to treat cold, malaria and allergic reaction, which from the reasonable man’s point of view, do not rank as serious cases of ill health that could put the life of anybody in danger to warrant traveling overseas to seek medical help, then there was more to the president’s trip than he was ready to admit, wondering whether it would not be right to suggest that those mild illnesses could be opportunistic ailments that resulted from a more severe and fundamental health situation. Going further we stated that “the President has a moral, political and constitutional duty to make a comprehensive disclosure of the state of his health, so as to put these rumours to rest. During the elections, he suppressed information regarding his state of health. The President, the first Nigerian leader to publicly declare his assets upon assumption of office, should follow that act of transparency by publishing his health records. The President’s refusal to fully disclose the state of his health cannot but impel Nigerians to worry about his capacity to continue to discharge the functions of his office and further fuel the rumour about his health, to which he objects.. The way the President is trivializing this issue does not give us any hope that the rumour about the President’s health will die. And the rumour won’t die because the President was elected to be in office for four years. So, if very early into the President’s tenure, there are indications that the President is frail in health, there will be serious concern, if not panic, because of the geo-political, constitutional and security implications of any incapacity to discharge functions of the office, or death. No electorate will put in power a president that is likely to be incapacitated to discharge the functions of his office; nor will they wish to see him die soon after election…. Chief Gani Fawehinmi has just disclosed his state of health. Professor Olikoye Ransome Kuti, disclosed, even when he could have kept quiet, that his brother, Fela, died of AIDS, to the anger and consternation of Fela’s devotees and admirers. Nelson Mandela, in grief, told a shocked world that his son died of AIDS. Why can’t our President disclose fully the state of his health?”

Again, when the President took ill in August this year, and he had to go for urgent medical treatment in Saudi Arabia, the alibi that was sold to the nation was that the President went for the lesser hajj. When the lesser hajj graduated to a bigger hajj, and the President did not return, the nation was then told that the President checked into a hospital after the lesser hajj to see his doctors.

It is against this backdrop of serial non-disclosures, inexactitudes and deliberate misrepresentations on the true state of health of the president that any reasonable person is likely to view this latest report on the President’s ailment as another choreographed canard. Illness is no crime. A compatriot who is ill deserves our love, care, affection, support and prayers. But a president that deceives Nigerians into electing him into office by falsely claiming that he enjoys a robust health, when he does not, commits an act of gross misconduct that devalues, diminishes and demeans the presidency. And such a president deserves an appropriate political punishment, regardless of the precariousness of his state of health. The electorate reserves the right to punish him for making a false claim on the state of his health, by removing him from office or by forcing him to resign his office, even as they pray for him to get well. The president’s father was a 1st Republic Minister, and the brother was a deputy head of state in a military government. The president, himself, was a State governor for eight years; and now he has been the president for over two years. Allah, the merciful, has blessed the President and his family; and in obedience to the national call for prayers, we beseech Allah to continue to bless him as he voluntarily leaves office or is unwillingly but constitutionally removed from the high office of the president, which he obtained by false pretense.
Jiti Ogunye, lawyer, public interest attorney, legal commentator, author, and essayist, is the Legal adviser of PREMIUM TIMES.