LAW Only FEC can raise issues over president’s health status - Bwala
James Bwala is an Abuja-based legal practitioner and law lecturer. In this interview he speaks on the delay in confirmation of the Acting CJN, Justice Walter Onnoghen and the constitutional issues in President Buhari’s medical leave. Excerpt: that period expires, he will development - the medical and constitutional issues. cease to be the CJN. And issue. The question now they cannot act on the is having not specified the letter the acting president time he is returning, he has sent. The NJC would have now placed that extension to recommend him again as indefinite. Now where to the presidency and the lies the power to compel president would have to the President to respond? I send his name. think it is with the National
We are thankful to God Assembly that should reply that this has happened. It the President demanding would have created a lot that he specifies when he of uncertainties not just is returning. That aspect is in our judiciary but in our also arguable because the legal order. Although it has only time you can challenge happened before, this one that letter is when you are has different implication trying to avoid a vacuum looking at it from the in power. In this case, he regional, religious, and has transmitted the power political points of view and to the deputy who is now the uncertainty that our acting. judiciary would have faced. The only constitutional window there is that if that medical reason for which he is kept out of Nigeria becomes a concern, then the Senate President can begin to generate a conversation for the purposes of determining the health status of the President. But the constitution makes it clear that it has to start with the resolution of members of the Federal Executive Council. Can the National Assembly act as a busy body where the FEC has not resolved that? The constitution said there must be a resolution by two-third of members of FEC that the President is unable to perform the function of his office by virtue of ailment. That resolution will be sent to the Senate President and the Speaker of the House of Representatives. The constitution says that on the basis of that the Senate President will constitute a fiveman medical panel, one of which must be the personal physician of the President. And the other four had to be medical practitioners in the field related to the examination.
The question is can the National Assembly suo moto initiate the conversation concerning the health status of the President? The constitution is clear that it has to emanate from the FEC. These are legal
The Acting President finally forwarded the name of the Acting CJN, Justice Walter Onnoghen. What might we have risked in the delay?
In a meeting elsewhere on Wednesday, I had expressed the same sentiment that the vice president, who is now the Acting President and who was given powers pursuant to Section 146 of the 1999 Constitution has all the powers and should send the name of Honourable Justice Onnoghen for confirmation. Later in the evening we heard the name was sent. And it is a thing of joy that he has sent it.
The question is to whether the period that had lasted has any legal implication, the answer is no. But it may have political implication. Like somebody suggested, it maybe that that kind of delay may give the legislature the chance to gamble with the prospective Chief Justice of Nigeria, to begin to push their agenda and interest and see if he can accommodate their interests and then he can broker the deal and get him confirmed however late his name is submitted. But that is speculative in my own view. The president, before now, had not violated the law by not sending the name. The constitution is clear that the appointment is done by the president on the recommendation of the National Judicial Council and the appointment must be subject to confirmation by the Senate. The name was recommended and instead of appointing him and sending his name, what the president did was to swear him in as acting CJN. And the Constitution Section 231 sub-sections 1, 2, 3, 4 is clear about the period the Acting CJN could act - which of course was three months. And as we were approaching the end thankfully his name was sent for confirmation.
Where we are going to have problem is where the Senate is in recess and is unable to come back to sit over the matter till
There are revelations that the acting CJN by virtue of his non-confirmation loses a lot of privileges of that office. What is your take on this?
If it has happened, it is unfortunate and may have inadvertently happened out of ignorance. Just like we have rightly argued that the Vice President as Acting President, pursuant to the provisions of the constitution, has all the powers of the substantive president, same way the acting CJN has no limitation to functioning. The only limitation that he has is that period of three months will be difficult for him to carry out a reform if he has any; it will be difficult for him to do some things because of time constraint.
By virtue of the provision of the constitution, he is entitled to salary like every CJN; he is entitled to sitting as the principal chief judicial officer of the country; he is the head of the NJC, the disciplinary arm of the judiciary; he is entitled to all the rights, privileges and benefits of other CJNs.
The Senate confirmed that the President transmitted a second letter asking for extension of his medical leave. It said the letter does not have the type of ailment or the duration of the leave. Does the absence of these invalidate the letter?
The second letter is not an instrument. The first letter pursuant to the provision of the constitution says whenever the President transmits a written declaration to the Senate President that he is proceeding on vacation or he is unable to discharge the functions of his office, until such a time the President sends another letter to the contrary the Vice President would act as the Acting President. Now the President has done so before travelling. What the constitution has not specifically stated is whether at any given time when the President is going on vacation or any trip in which he is transmitting power he needs to specify.
The constitution is not clear about that. So what we bring in as applicable rules are the rules that govern vacations for any public officer or political office holder which is that in any given year you are not entitled to more than one month of a period for vacation.
The second issue is whether the second letter invalidated the first? I don’t think so because in the first letter he said he was proceeding on a 10 days working vacation and it was at the expiration of that 10 days that he wrote for an extension because of a
Where then lay the agitation by various medical and civil society groups on the health status of the President?
The agitation of these interest groups is genuine because they are Nigerians; they have to express genuine concerns. There has to be contra distinction with what has happened in the past during Yar’adua’s time. Then the concern was so much. I remember that time there was a call for a daily update of the then President’s health status.
It was because the late Yar’adua travelled out of the country without transmitting power so there was a vacuum. The vice president then could not do certain things in his capacity. Section 148 of the Constitution said ‘the President may in his discretion, assign to the Vice President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation’. Such was the situation of Goodluck Jonathan as at that time.
In this case, power has been transmitted. The question is whether these agitations are justifiable in the light of the circumstances. Secondly, the President has not yet exhausted the vacation that he is entitled to in a year. May be if these interest groups had waited till after 30 days and the President is not back, then they can begin to ask that ‘without prejudice to the Acting President, it is important we know the health status of our President so that if it cannot be determined then we can convert the Acting President to substantive through constitutional procedure.’ It seems we are prejudicial and we are faster than our shadows.
There are other issues that have cropped up. In the days of Jonathan, when he was asked about the health status of Yar’adua, he said “I have not been given access to him.” In this case, the Acting President has been in constant touch with the President.