Has FEC Unwittingly Admitted the President's Incapacitation?

THIS DAY Newspaper- Chuks Nwachuku

It was reported that last Wednesday, members of the Federal Executive Council pretending to comply with the directive of Justice Dan Abutu, Chief Judge of the Federal High Court, to make a declaration on the health of President Yar’Adua - who is acknowledged to be a medical invalid detained at the pleasure of doctors in a foreign country, Saudi Arabia – purportedly declared that this invalid, who himself acknowledged in a BBC interview, that he could not so much as preside over his own self to the extent leaving, at his own will, his sickbed and returning to the country to resume his constitutional duties, is not by this self-acknowledged invalidity and pathetic helplessness incapable of discharging his duties of presiding over the fate of one hundred and fifty million Nigerians and the affairs of the greatest and most important black country on the planet. This must rank as the greatest affront to commonsense, ever. But this is not the only ridiculous thing about this entire sordid reality movie. It is vexatious to watch how we have allowed this absurdity to come about through unimaginative reading of the Constitution.

Section 144(1) of the Constitution provides: 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 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.

It is clear that the Constitution has called for a declaration, not an opinion. The declaration is one of fact i.e. whether or not the President has in fact been discharging his functions or whether there is a condition preventing him from doing so. We have, in this regard, an Executive Council that has already informed us that, by reason of failing health, the President is no longer with them, that they have been doing their best to carry on without him, and that the situation is so bad that they have no idea when and (by implication) if he would ever return.

And, there is no room for any vagueness about the phrase “discharging the functions of his office”. At section 148(2) of the Constitution, it is mandatory for the President to hold regular meetings with the Vice-President and all his Ministers. This is not a delegable function, and it is obvious that by reason of his medical incapacitation, the President has been unable to discharge it in the past two months.

Finally, there is no formality required by the Constitution as to the necessary resolution or declaration. Once a statement emanates from the FEC, following a meeting of the body attended by not less than two-thirds of Ministers, confirming the above facts, the stage is set for the Senate President to investigate the condition by empanelling a medical team. The medical panel is to conduct only such medical examination as is necessary. So, where the incapacitation is obvious from known facts the panel can turn in a report without physically examining the President. The FEC has released sufficient facts concerning the physical incapacitation of the President. The Constitution is not interested in the subjective and self-serving evaluations of members of the FEC as to the capability of the President in general or vague terms.

It is obvious that the so-called resolution of the FEC stating that the President is still capable is in reality, in the meaning of the Constitution, a declaration to the opposite effect. This is because the declaration states that the President has a medical condition which has incapacitated him in the performance of his key function of being at the head of the very meeting at which they passed the “resolution”.

The responsibility therefore has fallen upon the Senate President to constitute a medical panel to author the formal report to pave the way for the Vice-President to assume responsibility as Acting President. David Mark should stop playing the ostrich.


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