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The Nigeria 1999 Constitution as amended, Section 144 deals with the issue of where the President or Vice-President becomes incapacitated, and also the business that should be transacted once it is in the known that such office holder has fallen short of the provision, copied with the actions to be taken. The draftsmen of our law must have foreseen a situation, in-order to avoid a scenario where a man would hold on to power even on his sick bed claiming once he is still alive, two president cannot co-exist in the same country, though the intention is an applaud-able intention but whether this has really averted the problem is a question that begs for an answer.

According to the wording of paragraph (a) of sub (1) of the stated section above, it has thus “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 this office” the question that arose here, many at times in Nigeria the political appointees of the president are always loyal to the president because they were picked from among the strong allies of the incumbent and how possible will these loyalist declare that their benefactors is now incapable because to them the moment the Vice-President comes on board, he might want to reshuffle his cabinet, connoting that many of them will be relieved of their duties and the Vice-President would want to work with his own strong allies.

This has posed a serious problem and we experienced this during the health condition of the late president Musa Yaradua, and also in the Taraba governor, Dunbai Suntai saga. This problem pose to us, bring only one thing to mind; a better amendment and wording of our constitution. Going further from the above, paragraph (b) has it thus “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.” This position is to create check and balance and want of appropriate method, so that one hand or circle would not use its influence over the other, whether this word alone in itself can help solve this issue, the rest of the provision would help us get into a final or nice conclusion. Subsection (2) of the section stipulates thus “ Where the medical panel certifies in the report that in its opinion the President or Vice-President 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.

Now taking the above provision into examination, whether the sincerity of our citizens and professionals would play a large extent in determining the real intention of the draftsmen, the word suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, needs a trustworthy interpretation from the two must respected brothers of our society, the medical doctors and the legal practitioners for a proper interpretation. The constitutional crisis which rocked the nation for over two months during the time of the then President Yar’Adua went, or was taken, to Saudi Arabia on November 23, 2009 on health grounds without transmitting any declaration in respect of his health condition to the National Assembly, how do we constitute the medical penal to make a report over a man that no one could contact except his close allies, putting into action the wordings of the section would become impossible and the Constitution has not stated that where this arose, what should be done. The constitution of the penal is to be done by the Senate President and these are the procedure or steps to appoint members of the penal, 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.

Where this is done and the access to the President becomes impossible what happens? The Nigerian National Assembly is majorly controlled by the ruling party who directly or indirectly produce the president at all times and these members are more loyal to the party rather than the electorates, it becomes even difficult to pass a vote of No Confidence on the holder of such an office and again the sensitive nature of the regions has played a negative role, it would be view by many including the elites as a cat trying to outsmart a snake.

On the present issue rocking the nation, our minds has been blindfolded against the wording of the Section 145 of the 1999 Constitution as amended, the president transmitted a letter for vacation, but the provision for emphasis sake use the word “…proceeding on vacation or is otherwise unable to discharge the functions of his office…” the word “or” used by the statute has being interpreted by the court time without number to be disjunctive, Buhari .v. INEC (2008) 4 NWLR (Pt. 1078) 546 @ pp. 643-644. The word “Or” is a disjunctive participle used to express an alternative or to give a choice among two or more things. Meaning in the above provision vacation is different from the aftermath phrase and the President has acknowledge the fact that he is sick and his long stay is sending a wrong signal which is to be view by many as a shadow in the rain, especially a situation where the president allies are quick to come to media to state the fact that they have received calls from the president, the question that comes to the mind is what are they protecting by informing the citizens who had last seen nor heard from their president almost two months now.

The true of the ambit of the forerunner of this discussion remains that many provisions of the Constitution are poorly drafted, and we need honesty in governance.

A.S. Adesheila, Esq.

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  1. Nice one barrister

  2. H.B Dembo Esq.

    A swell write up though i disagree with ur submission dat many provision of d constitution are poorly drafted with all due respect dat is not d position rather than day u would have say dey are poorly implemented by those in position of to implement. I so hold. H.B Dembo Esq.

  3. nice commentary my counsel. you really did a wonderful analysis to the above subject matter.

  4. still typing

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