The Instant Removal of President Umaru Yar`adua from Office: a constitutional & political imperative

Introduction-Nigeria is in the throes of a constitutional and political crisis. A disabled President confronts his mortality in a foreign land while a captive Vice President comes to terms with his impotence at home. A brutalised people do not know the identity of the usurper(s) that fill the presidential vacuum. The overriding principle of the Constitution - “the Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria except in accordance with the provisions of this Constitution” - has been violated. Constitutional order has been overthrown.

There appears to be very little the long suffering people of Nigeria, who never gave their mandate to either the President or the Vice President in the first place, can do to restore constitutional order. However, despite the government's lack of political legitimacy (in the sense that it was not elected by the people), the judicial seal of approval given to the electoral theft of 2007 by the Supreme Court has settled with finality all questions about its legality.

In the circumstances, Nigerians have a constitutional obligation in accordance with the Oath of Allegiance in the Seventh Schedule to the Constitution - to preserve, protect and defend the Constitution of the Federal Republic of Nigeria - to ensure the invocation of the constitutional mechanism designed to avert the looming constitutional and political catastrophe through the immediate removal of President Umaru Yar'Adua from office for incapacity to discharge the functions of his office and his consequential replacement by Vice President Goodluck Jonathan.

This article discusses the various constitutional options for achieving these ends. It argues that section 145 of the Constitution, which is specifically designed to ensure a quick and temporary transfer of presidential power to the Vice President in the event of the president's temporary incapacity (which provision the President has repeatedly refused to invoke) no longer avails him in view of his permanent incapacity. It therefore contends that the only way the President can now remove himself voluntarily from office is by resignation.

In the likely event that the President continues to refuse to do the right thing for his health and wellbeing of the nation, the article contends that the Federal Executive Council is bound to instigate his removal under section 144 of the Constitution on the grounds of permanent incapacity to discharge the functions of his office. Failing that, it opines that the National Assembly, as the ultimate custodian of the Constitution, must impeach the President by virtue of section 143 of the Constitution for violation of the Constitution and/or his oath of office amounting to gross misconduct.

However, it is appropriate to start by throwing more light on the rare disease that is afflicting the President.

What is Churg Strauss Syndrome?
After more than two years of bare-faced lies and farcical attempts at concealment, during which period both the health of the President and the fortunes of the nation have deteriorated markedly, Aso Rock admitted last Thursday that the President is suffering from acute pericarditis - the inflammation of the sac-like covering of the heart - which is one of the symptoms of the advanced stage of the incurable degenerative disease known as Churg Strauss Syndrome. According to information on the website of the Churg Strauss Syndrome Association:

• Churg Strauss Syndrome is a rare systemic (affecting the whole body) autoimmune (a condition where one's immune system mistakes the body's cells and tissues as foreign and attacks them) disease characterized by inflammation of small to medium sized arteries, arterioles and venules. This inflammatory process of blood vessels is more commonly known as vasculitis.”

• Churg Strauss vasculitis is characterized by the invasion and abnormal increase of a white blood cell known as an eosinophil. The eosinophils cluster together and release harmful granules that collect in different parts of the body as inflammatory nodule lesions. This eosinophilic inflammation, along with asthma, is the hallmark of Churg Strauss Syndrome. The inflammatory process can cause impaired blood flow to various organ systems. The resultant damage to different organs may be temporary or permanent.

• Churg Strauss is a baffling disorder that is difficult to diagnose and one whose effects vary widely from patient to patient. Some people have mild symptoms which barely affect day to day living while others suffer from a wide variety of problems including sinus problems, rashes, lung involvement, peripheral neuropathy, gastrointestinal problems and heart involvement.”

• CSS is not contagious and is not inherited. Its cause is unknown. There is no cure, but many people achieve long term remissions. Because there is no cure for CSS and relapses are common it is very important that the disease be carefully monitored by a physician with regularly scheduled lab tests even while in remission.

Voluntary Relinquishment under section 145 of the Constitution

Section 145 of the 1999 Constitution provides a mechanism for the President to remove himself voluntarily from office temporarily when he is unable to continue the discharge of the functions of the office. It states that “whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President.”

The provision is identical to section 3 of the Twenty-fifth Amendment to the Constitution of the United States of America, which resulted from President Eisenhower's request for a procedure whereby an incapacitated President might transfer power temporarily to the Vice President. In response, the Twenty-fifth Amendment was passed by Congress in 1964, and following ratification by the states, became law in 1967.

Therefore, the purpose of section 145 of the Nigerian Constitution is to ensure the stability of the Presidency by temporarily relieving the President of the responsibilities of office in order to enable him to respond to a temporary incapacity without jeopardising himself or the nation. The provision is remarkably generous to the President as it not only makes the transfer of power to the Vice President temporary thereby assuring the President that he could reclaim office once he was able to do so but also gives the President the sole authority to relinquish and reclaim power under the procedure.

These concessions and safeguards have not stopped President Yar'Adua from playing the dog in the manger. Despite his frequent inability to perform a number of official duties while in the country because of recurring health problems since he assumed office in May 2007 and his even more frequent foreign health travels (the current visit to the King Faisal Specialist Hospital and Research Centre in Jeddah, Saudi Arabia, is the second in three months) the President has never availed himself of the opportunity provided by section 145 to relinquish power temporarily to Vice President Jonathan.

The resultant - entirely avoidable - paralysis of government felt particularly during the President's extended travel to Saudi Arabia in August last year when the affairs of the state grounded to a halt for more than two weeks has reared its ugly head again and there does not appear to be an end date this time.

During his press briefing last week, the Special Adviser to the President on Media and Publicity, Mr Olusegun Adeniyi, claimed that: "The vice president is now acting on behalf of the president. He takes charge in the absence of the president." This is a remarkable volte face because only two days earlier, it was the President's Special Adviser on National Assembly Matters, Senator Mohammed Abba Aji, rather than Vice President Jonathan, that laid the 2010 budget estimates before the Senate and the House of Representatives on behalf of the President.

Yet the provision of section 81 (1) of the Constitution, which provides that “the President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year”, suggests that the presentation of the budget estimates is precisely the type of function to be performed by the Vice President as Acting President following the invocation of section 145 by the President.

In any event, the bald statement by Mr Adeniyi is a far cry from the written declaration section 145 requires the President to transmit to the President of the Senate and the Speaker of the House of Representatives in order to ensure an efficient and effective transfer of presidential power to the Vice President. Indeed, the Presidency, in characteristic style, poured cold water on any hope for the invocation of section 145 the very next day. Quoting a source in the Presidency (presumably the same Adeniyi) CNN reported that “President Umaru Musa Yar'Adua and the vice president will continue in their respective roles and the latter will not assume presidential duties.”

Yar'Adua is not the first only president to refuse to remove himself voluntarily when he is unable to continue performing his duties. President Reagan failed to invoke section 3 of the Twenty-fifth Amendment on the three occasions that called for it during his Presidency: in the immediate aftermath of his attempted assassination by John Hinckley in 1981; when he underwent surgery to remove his colon cancer in 1985; and when his prostate gland was operated on in 1987. However, Reagan's failure to abide by the Constitution does not provide a defence to Yar'Adua. More significantly, his circumstances pale into insignificance compared to Yar'Adua's, which has continued to deteriorate from the time of his presidential campaign.

Voluntary Resignation
The official disclosure that the president is suffering from acute pericarditis confirms the advanced nature of his illness and explains his demonstrated incapacity to discharge the onerous functions of his office in the past two and a half years. The following information from the CSS Association is particularly instructive:

• CSS is a progressive disease consisting of three distinct phases. This first, allergic phase is almost always characterized by asthma. The next phase is called the hypereosinophilic phase. Often during this phase, patients suffer from chronic eosinophilic pneumonia and inflammation of the esophagus, stomach or intestines.

• The systemic vasculitis phase. Systemic vasculitis means that there may be inflammation and damage to blood vessels throughout the body. This, in turn, may cause damage to many different organs. Common organs affected by CSS include the skin, the heart, the lungs, the central nervous system, the peripheral nervous system, the gastrointestinal tract and less commonly, the kidneys, the eyes and the musculoskeletal system.

• CSS involving the skin can manifest itself in many ways. Rashes, discolorations caused by bleeding vessels near the surface of the skin or solid raised bumps are common. In addition, a blotchy mottling of the skin might occur. If the lungs are involved the following symptoms might be present: cough, shortness of breath, coughing up blood stained sputum, and a feeling of pressure in the chest.”

• If the disease progresses to the heart the CSS patient might experience fatigue, shortness of breath, chest pain, irregular heartbeat, increased blood pressure, difficulty in breathing except when upright, swollen legs, appetite loss and fainting episodes. Some of these symptoms are related to pericarditis, which is inflammation of the sac-like covering of the heart, while others are related to congestive heart failure. Heart problems are a leading cause of death in Churg Strauss Syndrome.

• In addition to all the possible symptoms caused by Churg Strauss Syndrome in any of the three phases, patients might also experience the general effects of chronic illness, such as depression, fatigue and general malaise. In addition, the medications used to treat the disease may also cause side effects. Treatment sometimes causes the immune system to be suppressed leading to a greater vulnerability to all sort of illnesses, including a greater susceptibility to pneumonia.

In view of secrecy with which the Presidency has mismanaged the President's illness, one cannot state with certainty that the President suffers from all these complications of Churg Strauss Syndrome. However, it is undeniably the case that the President shows many of the external symptoms. This fact, coupled with his pitiful failure to discharge the functions of his office for the better part of the past two and a half years, strongly indicates that the President's illness is of such a degree that he is unlikely to recover well and fast enough to complete the remaining one year and a half of his tenure.

In the circumstances, the only viable option open to the President is to resign voluntarily so that the Vice President becomes President by virtue of section 146 of the Constitution. However, experience suggests that the President cannot be relied on to act with altruism in this matter and thereby relinquish his miserably inadequate leadership of Africa's most populous country and the world's eighth largest exporter of crude oil. In fact, the CNN report referred to above confirmed that “Nigeria's president will not resign despite currently undergoing treatment in Saudi Arabia for a heart condition.”

Removal by the Federal Executive Council under section 144 of the Constitution

Although there is no direct constitutional mechanism to force an incapacitated President to remove himself voluntarily, the provision of section 144 requires the Federal Executive Council to instigate his permanent removal on the grounds of incapacity. The relatively simple procedure under section 144 operates as follows:

i. The Federal Executive Council passes a resolution by two-thirds majority of all the members declaring that the President is incapable of discharging the functions of his office.

ii. The President of the Senate appoints a medical panel of five medical practitioners in Nigeria comprising the President's personal physician and 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 relating to the President's illness.

iii. After such medical examination as may be necessary, the medical panel verifies the declaration by the Federal Executive Council in a report to the President of the Senate and the Speaker of the House of Representatives.

iv. If the medical panel certifies in the report that in its opinion the President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice to that effect is signed by the President of the Senate and the Speaker of the House of Representatives and published in the Official Gazette of the Government of the Federation.

v. The President ceases to hold office as from the date of publication of the notice of the medical report and the Vice President becomes President by virtue of section 146 of the Constitution.

It is clear that section 144 is designed to remove an incapacitated president like Umaru Yar'Adua who will not step down despite the compelling case for it. However, just like Yar'Adua, the members of the Federal Executive Council have subjugated national interests to their personal interests by failing to invoke the provisions, if only to enable the prescribed medical panel to determine the President's fitness for office.

Yet these are the same people that swore an oath to discharge their duties to the best of their ability, faithfully and in accordance with the Constitution and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the country; not allow personal interests to influence their official conduct or their official decisions; and to preserve, protect and defend the Constitution to the best of their respective ability.

Impeachment by the National Assembly under section 143 of the Constitution

Although section 145 of the Constitution confers a discretionary power on the President, his failure to exercise that power in the circumstances envisaged by the Constitution in the past two and a half years amount to a continuing violation of the spirit and intent of the Constitution. That failure and his refusal to resign voluntarily also constitute serious breaches of the Oath of Office of President under the Seventh Schedule to the Constitution, which obliges him to discharge his duties to faithfully and in accordance with the Constitution and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Nigeria; to preserve, protect and defend the Constitution; to devote himself to the service and well-being of the people of Nigeria; and not to allow his personal interest to influence his official conduct or his official decisions.

In the circumstances, the violations of the Constitution and/or the Oath of Office of President constitute "gross misconduct” in the performance of the functions of President under section 143 of the Constitution, which defines “gross misconduct” as “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.”

Therefore in fulfilment of their Oath of Office, by which they swore amongst other things to perform their functions honestly and to the best of their ability, faithfully and in accordance with the Constitution and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Nigeria and to preserve, protect and defend the Constitution, the members of the National Assembly have a constitutional obligation to commence impeachment proceedings against the President under section 143 in the event of his continued refusal to resign and the continued failure of the Federal Executive Council to instigate his removal.

The complex procedure for the impeachment of the President under section 143 is as follows:

i. A written notice of allegation signed by not less than one-third of the members of the National Assembly stating that the President is guilty of gross misconduct in the performance of the functions of his office and detailing particulars of the gross misconduct is presented to the President of the Senate.

ii. Within seven days of the receipt of the notice, the President of the Senate serves a copy on the President and on each member of the National Assembly. The Senate President also serves any statement made in reply to the allegation by the President on each member of the National Assembly.

iii. Within fourteen days of the presentation of the notice to the President of the Senate (whether or not any statement was made by the President in reply to the allegation contained in the notice) each House of the National Assembly resolves by a motion supported by the votes of not less than two-thirds majority of all the members of each House whether or not the allegation shall be investigated.

iv. Within seven days of passing a motion that the allegation be investigated, the Chief Justice of Nigeria shall at the request of the President of the Senate appoint a panel of seven persons who in his opinion are of unquestionable integrity (who are not members of any public service, legislative house or political party) to investigate the allegation.

vi. Where the panel reports that the allegation against the President has been proved, then within fourteen days of the receipt of the report, the House the National Assembly shall consider the report, and if by a resolution of each House of the National Assembly supported by not less than two-thirds majority of all its members, the report of the panel is adopted, then the President shall stand removed from office as from the date of the adoption of the report and the Vice President becomes President by virtue of section 146 of the Constitution.

It is pertinent to note that impeachment under section 143 in these circumstances is not meant to punish the President but to protect the Constitution and the nation from his personal failings in the performance (or more precisely lack thereof) of the functions of his office.

However, the history of the PDP-controlled National Assembly does not leave one with great expectations on this matter. In fact, only last week, the supine Senate suspended its Standing Rules in order to allow the President's Special Adviser on National Assembly Matters to present the budget estimates to it without raising so much as a murmur against the President's failure to invoke the provisions of section 145 of the Constitution to ensure that the Vice President fulfilled that function as envisaged by the Constitution.

ConclusionThe issue that confronts Nigerians is not whether we like Jonathan or dislike Yar'Adua (who deserves every sympathy and prayers at this time) or where both men come from. It is a simple but grave constitutional matter of national importance that transcends personalities, tribes and partisan politics. Therefore, if the Government persists in failing to discharge its constitutional obligation to remove the President from office, Nigerians have a civic duty to preserve, protect and defend the Constitution by insisting on the replacement of President Yar'Adua with a Commander-in-Chief who is in full command of his faculties, as a first step to rescuing a paralysed nation teetering in the precipice of a political and constitutional abyss. By Osita Mba

Originating at www.huhuonline.com