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Daily Independent
(Lagos)

Nigeria: President's Health Concerns Nigerians - Aturu

6 October 2008

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interview

Bamidele Aturu is a legal practitioner, human rights activist and commentator on issues national issues. In this chat with REPORTER Francis Iwuchukwu, Aturu bares his mind on non-disclosure of President Yar'adua's health problem, the proposed constitution amendment among other issues. Excerpts;

A Senior Advocate of Nigeria (SAN) and a former Attorney General of the Federation, Prince Bola Ajibola, recently said that the President under the constitution has the right to be silent on his state of health. Many lawyers disagree with him, arguing that the President owes it as a duty to tell Nigerians his true state of health. Does it then mean that lawyers in Nigeria are not operating with the 1999 Constitution, or what is the position of the 1999 Constitution on the President's health?

Now I think we have to be careful here, we have to be very, very careful. When people make comment and say that the constitution does not say this or the constitution says that, the impression I get is that we take the constitution like a lifeless document; a document without a soul; a document that has no spirit. But that is not how we should consume off the most important law of the land. Now the constitution is very clear by giving the conditions under which the President may cease to hold office and one of those conditions you will realise is Section 144, where a medical panel certifies that the President is no longer able to perform the functions of his or her office. The president of the Senate is constitutionally empowered to set up a panel, which in his opinion, are doctors who have attained some eminence in the field relating to the health of the President concerned. The panel of course, will also include the personal physician of the President, and the president of the Senate will not set up that panel unless there is a resolution by the Federal Executive Council, two third of them saying that look, in our own opinion, the President is unable to discharge the functions of his office again. That is what the constitution says. And that clearly for me tells you that the constitution, gives an indication, that the health of the President is very important and that there must be full disclosure. Now full disclosure in what sense? It may not have been written in black and white, that is why I say apart from the letter of the constitution, you have to look into the spirit of the constitution, why will the constitution make an elaborate provision for the cabinet passing a resolution, for the Senate president setting up a panel, and once the panel says the man is unfit to discharge the responsibility of his office, that is the end of the mater, then of course it then follows that the President must quit office. For example, when the cabinet is about to take that resolution, I imagine that they will have to ask from Mr. President, that in our opinion it appears that you are no longer fit to run the affairs of the country. What is your state of health? And I imagine that he must be able to disclose to the cabinet, that well I think am (the President) not fit or I think am fit, or this is my position about my health. So in a way, you can see that he has a duty to disclose even if it is only to his cabinet. The President of Nigeria is too important to joke with his health, he plays enormous responsibilities; the life of many people depends on him. In fact, as I argued in many of my articles, some contractors may get a stroke if the President is not well because he is the one that signs their contract and awards contract here and there. Apart from that, on a serous note, section 16 of the constitution says the security and welfare of Nigerians shall be the primary function of government, and the President under section 5 of the constitution is the one who holds executive power. So if anything is wrong with the President of Nigeria, indeed you can say a lot is wrong with all other Nigerians; so his health is our health; his well-being is our wellbeing, and that is why are concerned. Is not as if people are trying to be busy body; is not because his life is more better than all other people's life, but because he plays enormous responsibilities that affects other people's life and other people's health.

So for me, my argument is that since the constitution puts in place an elaborate condition as to how the President can be removed if he is unable to perform his functions, then it is clear, we can argue that the constitution also requires that the President must level with the people of Nigeria, must let them know his state of health, that is very crucial, that is very important. So it is not just correct for lawyers to just look at the letters of the constitution and then abandon the spirit. Just like the Bible says, the letter kills, it is the spirit that gives life. It is the spirit of the constitution that gives it life; it is not what is written there. What is important is how what is written is interpreted and I think that it is also very good that every President would want to let the people know. There is nothing to be secretive about it. You are either well or unwell, and if you are unwell people can even begin to pray for you. The danger is that if we don't know the level of health of their President, some cabal will just hijack governance and will be running the government in the name of the President and then they take all sort of devilish decisions, do what they like, and commit all sort of crime in the name of the President.

Look at people Gani Fawehinmi, he came to tell Nigerians that he is not feeling fine, people, including myself have been praying for him, many Nigerians are praying for him. Although I have also been praying for the President, but I think if the President comes out to say he is well and he is not well, I think that is not good for us and why will you pray for somebody who says he is well. So this are the issues and I don't think is a correct way to interpret the constitution. You cannot just reduce the constitution into such a funny document.

There is a renewed call by some human rights groups for the abolition of death sentence from the constitution. As an activist yourself, do you share this sentiment with them?

Well, death sentence is not in the constitution, is in the other statues like the criminal code and the penal code. This is a matter that has been debated for so many years as to whether death penalty should be abolished or not. My view is that no body has the right to take the life of another. So I take the view that there is no concrete evidence that death penalty or capital punishment generally has deterred others from committing crimes. Whether you are looking at specific deterrents, there is no statistics to show that because you have death penalty, there has been a decrease in the commission of those crimes, and if that is the case, why do you keep a method of punishment that has not achieved its aim. Now don't forget that there are other series of punishment, like rehabilitation, incapacitation, which for me I would want to support. Now, the rehabilitation says look, if somebody has committed a crime is because that person has been deformed either by the leadership in society or by certain environmental conditioning, and that the best way to deal with that person is to rehabilitate or counsel that person, and get that person to become a useful member of society and that explains why in some society people that have committed crimes have to go for counselling or for probation or for some kind of community work so that they can be rehabilitated. We also have what is called incapacitation. This is another type of punishment, which says that the people that have committed such crimes are not fit to live among other people in society. So what you do is to incapacitate them by locking them in a place and that is the whole essence of prisons. Now of course we also have what is called deterrents. We have special deterrents and general deterrents. Special deterrent says that look, when a man commits a crime and you deal with him, you deter him from committing a crime in the future, while general deterrent says when you punish somebody for a particular crime and, people get to know about it and other members of the society are deterred from committing such a crime. So given what I have said about absolute lack of failure of statistics to link decrease in crimes to capital punishment, I would rather prefer that we use other methods, find ways of counseling or rehabilitating or if possible you can even imprison people so that they don't polute other people in the society. I don't any human being has the right to take the life of another person and also of course you know there is a general theory of retribution even in penology. For us to deal with the problem of violent crimes in pour society, we need to first of all restructure our society, we need to also do everything possible to create jobs, we need to distribute wealth and we need to also empower our security agencies, the police in particular to be able to check crime before they happen before we now begin to run about with sirens. Once we do this, the issue of capital punishment, capital offences will reduce.

Not long ago, the National Assembly announced the composition of members to serve in the proposed amendment of the 1999 Constitution. Do you see this as coming at the appropriate time and do you see members of the National Assembly will do a thorough job in this regard?

You know we have been on this constitutional amendment for a long time. Now I believe that some people are even making a living out of constitution amendment. But what is important is that we need to point out that the people of Nigeria have not made the constitution that we are using today and that is the key thing. We have talked about process led constitution making and our people have never ratified this constitution in any referendum. We need to get our people to sit down and write their own law because the constitution is their law, is about them, is about their lives. It is not a document imposed from above. If you don't allow the people to write their constitution, then you rape them, and that is what you are doing, and that is a crime. For me, the National Assembly, I don't think they are going about it the right way. I think what they need to do is to involve all the critical sectors of society, it is not about tour, it is not all about moving about, it is not a jamboree, it is about inviting everybody to make their contribution. Constitution making is about the life of the people and that is why the people also must be carried along in the process of amending the constitution if fairness must come to play.

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