After three months of going AWOL, or a repeated “medical leave,” questions have arisen as to whether President Buhari should step down, but those questions have been adjudged by Buhari’s sympathizers as another attempt to destroy the character of their beloved president.
However, regardless of your political affiliation, you should be worried as to whether the “Giant of Africa,” as Nigeria is undeservingly called, can weather such a power vacuum and uncertainties at the highest level of its government.
The capability and the constitutional responsibilities of Mr. Yemi Osibanjo, the Acting Vice President, is never in doubt (Section 145 of the Constitution of the Federal Republic of Nigeria, 1999, guarantees Mr. Osibanjo’s “discharge” of those duties that “the President” would’ve performed), but, because the constitution is not always sacrosanct in Nigeria, politicians, who are eager to arrogate power to themselves, have raised serious political questions as to the limitations of the power of the Acting President Osibanjo (even though, constitutionally, no limitation exists).
This inquiry, however, focuses on President Buhari: The question presented is whether President Buhari should step down.
Given the nature of power, it’s presumptively valid to assume that President Buhari, or his handlers, is not thinking about stepping down. And, because of some historical antecedents in past similarly situated cases, one must assume that President Buhari, as long as he breathes, will not voluntarily resign.
How, given his deteriorating health, then, can the president be compelled to voluntarily consider resigning? Or, in the alternative, can he be involuntarily compelled to resign? To answer these questions, I raced to Sections 143 and 144 of the Constitution of the Federal Republic of Nigeria, 1999.
While some people disagree with this Constitution, it’s still the primary document that guides and binds our political and governmental affairs.
As you may know, I’m highly opinionated, but I won’t take my own editorialized comment on this issue—whether President Buhari should step down—but I will strongly default to whatever the Constitution says on this matter.
That being said, per my thorough review of Sections 143 and 144 of the Constitution of the Federal Republic of Nigeria, 1999, President Buhari may be involuntarily dislodged but, in order for that to happen, certain requirements must be met.
My legal research unraveled two constitutional options to involuntarily remove President Buhari, for his failure to competently perform his duties: First, The National Assembly Option. Second, The Hybrid of Executive Council/National Assembly Option.
Given the nature of politics in Nigeria, it’s fair to say that these two options might not be invoked but, because there are numerous power-hungry politicians in Nigeria, it will be a political malpractice to definitively say that these options, especially Option1, will never be invoked at some point in the future.
In order to invoke Sections 143 against President Buhari, the offense must rise to the level of “gross misconduct.” (See Section 143(2)(b)). At this point, it is fair to explain what qualifies as “gross misconduct”: Per the Constitution, it “means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.”
The second part of the above definition gives the “National Assembly” more latitude to expand the meaning of “gross misconduct,” which means Saraki, the Senate President, may decide to characterize “gross misconduct” as including “behavior that can get a person dismissed straight away from work because it is serious enough” to hamper the person’s ability to perform his constitutional responsibilities. Buhari is already at that point, regardless of the “transfer” of what has practically become selective power to Mr. Osibanjo.
For it can be argued that a federal employee would have been fired for doing what President Buhari has done so far. Or Saraki may argue that President Buhari’s medical leave has been shrouded in secrecy, that “gross misconduct” includes President Buhari’s lack of transparency to the National Assembly and Nigerians.
While my hypotheticals may not make sense to an average person, you have to understand that we’re in an uncharted territory and Buhari’s case, in legal parlance, is a case of first impression. Let’s move on.
On the presumption that the National Assembly can establish “gross misconduct” from Buhari’s action, the “Chief Justice of Nigeria,” depending on “the passing of a motion” to investigate whatever has been certified as “gross misconduct, shall at the request of the President of the Senate appoint a Panel of seven persons…to investigate allegations…in this section” (See Section 143(5)).
The decision, or the activity, of the “Panel” is non-justiciable, which means “[n]o proceedings or determination of the Panel or of the National Assembly or any matter relating thereto shall be entertained or questioned in any court.”
Whether Saraki will invoke this Option—to characterize Buhari’s conduct as “gross misconduct”—in my own opinion, depends on whether the “real” presidency—the Buhari camp/handlers, not the Osibanjo camp—will continue to cooperate with the almighty Saraki. So far, they are on the same page (recall how, a couple of weeks ago, they (the Buhari camp) threw Pastor Osibanjo under the bus). Let’s move on to the next Option.
In order to invoke Sections 144—which I termed the Death Penalty Option—against President Buhari, he must be “suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office” (See Section 144(2)).
Unlike Section 143 (Option1), which must originate from the National Assembly, this invocation, or “resolution,” must be initiated “by two-thirds majority of all the members of the executive council of the Federation” (See Section 144(a)). Why did I call this the hybrid option?
Under subsection 4 of Section 144, the medical panel…shall be appointed by the President of the Senate,” which means that Senator Saraki will be appointing medical examiners that will ascertain the incapacitation of President Buhari; however, the one of the medical examiners (5) must be the “personal physician” of President Buhari. (See Section 144(4)(a)).
As it is, the members of the executive council are stacked with politicians who are still loyal to President Buhari. It’s why Buhari’s handlers are fiercely resisting any attempt by Mr. Osibanjo to reshuffle the cabinet. Mr. Osibanjo is a constitutional scholar, and he is well informed on these constitutional maneuvers.
Without an iota of doubt, Buhari’s handlers are cognizant of Osibanjo’s legal brilliance, which may explain the ongoing palace intrigues between adversarial parties within Aso Rock. I know my Kantian friends may disagree with my analysis, for they have failed to avail themselves to the writings of Niccolò di Bernardo dei Machiavelli.
That being said, there is a likelihood that Senator Saraki will jump on whatever opportunity that advances his interest but, as it is currently composed, the executive council is not likely to pass a resolution that declares the president as “incapable of discharging the functions of his office.”
If these palace intrigues escalate (never say never), and “the medical panel certifies in the report that the President…is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office,” then, “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” (See Section 144(2)(a)).
To conclude, President Buhari’s removal from office, for his failure to competently perform his duties, can either be voluntary or involuntary. And, because of some historical antecedents in past similarly situated cases, one must agree that President Buhari, as long as he breathes, will not voluntarily resign.
In the alternative, President Buhari can be involuntarily, pursuant to Sections 143 and 144 of the Constitution of the Federal Republic of Nigeria, 1999; however, this alternative route, as analyzed above, is not easy to achieve. I rest my case.
Legal Disclaimer:
The information contained in this article is for educational purposes only. Accordingly, the information in this article is provided with the understanding that I, Akintunde F. Adeyemo, am not herein engaged in rendering legal solution. As such, it should not be used as a substitute for consultation with a legal practitioner. Before making any decision or taking any action, you should consult your lawyer.
-Akintunde F. Adeyemo, legal practitioner, writer, lives in the United States of America
