10 August 2017

Nigeria: Law and the Politics of Buhari's Return

Photo: Vanguard
The protesters, a coalition of civil society groups, marched to the Villa on Monday, demanding that the President either resumes or resigns.

A few days ago, a handful of Nigerians led by Charles Oputa aka Charlie Boy, the eccentric -or better enfant terrible- son of the late legal luminary, Justice Chukwudifa Oputa staged a 'peaceful' protest in Abuja calling on President Buhari to discontinue his medical treatment in London and resume office or he should resign forthwith. This is in spite of the fact that there is no subsisting law, constitutional or statutory, which obligates the President not to exceed a certain time limit while on medical vacation anywhere. It is also in spite of the fact that the ailing President has since done the needful -constitutionally- by handing over power to the Vice President, Osimbajo on each of the two occasions he had to embark on his medical vacation abroad.

You would think that this should be sufficient to assuage all concerns -real or unreal- by those who claim to worry about 'uninterrupted governance' in the absence of the President. But evidently this has not; -suggesting therefore that there is more to it than any feigned concern about 'continuity in governance', or about respect for the letter and spirit of the Constitution. And this exactly is where the huge irony plays out, that this brazen demonstration of ignorance of the law -or is it the prejudicial interpretation of law?- should be championed by an outlaw of sort with such enviable juristic ancestry.

Besides, since most of the opposition voices that claim to have issues with the President's health or his medical absence or both, have always lauded the Acting President, Osinbajo as more deftly suited to handle the rudders of state than his ailing principal Buhari, you would have thought also that this too should be sufficient to comfort those who claim to worry -genuinely or otherwise- about the 'quality of governance' in the absence of Buhari.

But this too, evidently has not; suggesting -without doubt- that the whole charade is not, after all, about moving Nigeria forward as the protesters would want us to believe. It is about dragging her back into anarchy, the kind that threatened the peace of the nation during Yar'Adua's time.

In truth not only has there never been any power vacuum at any time the ailing President has been away, there has also never been any interference by Buhari in how the Acting President exercises the presidential powers constitutionally transferred to him.

Osinbajo in fact was on record twice vindicating his principal not only as having never interfered but also as having never accepted to interfere even when he (Osinbajo) had severally importuned him to do so. And so again, you probably would have thought that this should equally have been enough to assuage the concerns -real or unreal- of those who claim to worry about the possibility of Nigeria being governed by a sick Buhari in faraway London. But this again has not, -proving also that there is more to the protest against Buhari's medical sojourn than merely wanting to be sure that Osinbajo as Acting President is both effectively de jure and efficiently de facto in office as he should be.

Moreover all of us having recently seen -on two occasions when Buhari was visited by Governors- a truly convalescing President, as against the 'vegetated' or 'life-supported' Buhari of his traducer's sadistic creation, you would have thought once again that this was enough to assure especially those who have always made a public show of 'genuine' concern about wanting to be sure "our President is recovering well".

But evidently this too has not, -proving therefore that it has in fact never been about empathy for the President's protracting health challenge, but rather it is what it has always been, namely snooping-by-deceit into the President's health situation in the fervent 'hope' that it has deteriorated enough to meet the self-fulfilling prophesies of his traducers. Nor is there better proof of that ill foreboding than that it is soon after we saw proof that the man he is fast recovering, that they now resort to giving Buhari ultimatums.

The Law

Many constitutional lawyers of repute in the country have confirmed that the President is not in breach of any law by staying as long as he has on medical vacation whether at home or abroad; and they say that in fact in the absence of any existing law stipulating any limit in that regard, Buhari can remain in hospital as long as his tenure lasts.

They have also debunked the claim that the President's health vacation comes under the Civil Service Rules which stipulate that civil servants cannot go on vacation for more than ninety days. Nor has any lawyer of repute that I know given any imputation to the contrary.

In separate interviews with LEADERSHIP Sunday, the Chairman Presidential Advisory Committee Against Corruption, Prof. Itse Sagay, Femi Falana (SAN), Professor Norrison Quackers (SAN), NBA Vice President Monday Ubani, constitutional lawyers Jiti Ogunye and Abanika Muktar Isah all agreed that there is no constitutional or other provisions which stipulate any timeline concerning how long the President can stay on vacation, even as they are unanimous also that the Civil Service Rule does not apply to the President. The Senate too which is constitutionally mandated to be the avenging angel of the Consitution has denied that Buhari is in breach of it.

It appears only mischief makers are offended by Buhari's medical leave. In fact, Itse Sagay who cited the case of Enugu State's former Governor Chime who never transferred power to the Deputy, and who had stayed nine months on medical leave said "Anyone that is raising (the issue concerning Buhari) is a mischief maker and he should be disregarded".

He probably should have added that anyone who makes such potentially divisive issue a subject of public protest -no matter how peaceful that protest may be- should be arrested and prosecuted!

Right to protest

And which brings us to the question of when or who has the right to public protest. The claim is legally unfounded, by many -including those who should know better- that people just have a right whimsically to protest at 'anytime' or 'anywhere' and on 'any issue' provided they do so peacefully. Nothing is farther from the truth, legally-speaking. In fact, I read one of the President's Media Advisers, Garba Shehu conceding that the protesters "are exercising their rights in line with the Constitution".

No they are not! There is no right which is guaranteed by the Constitution that is absolute. Any potential beneficiary of a right can act to disentitle himself from the enjoyment of that right by the manner in which he goes about asserting or enjoying it. No one is entitled to the exercise or enjoyment of any right 'however' or 'whenever' he chooses to or without regard to contingent rights of other persons or of the State.

The constitutional right to the exercise or enjoyment of any right is subject to limits imposed by the same Constitution. As Lord Denning would say "The right to swing your arm ends where my nose begins". And so every right listed under Chapter Four of the Constitution on 'Fundamental Rights' is derogated by other rights which are also continuously derogated by others. The rights to Life, to Personal Liberty, to Peaceful Assembly and Association, to Freedom of Thought, Conscience and Religion, to Freedom of Expression and the Press, to Freedom from Discrimination, to Freedom of Movement and even to the right to Acquire and to Own Property are not absolute because they are circumscribed or derogated by other rights especially of the State; for example:

-in the case of the right to Life or to Personal Liberty or to Freedom of Movement where the state in the execution of the sentence of court or in defense of others or their property, or for "the purpose of suppressing riots, insurrection or mutiny", may take the lives of others or deprive them of their liberty; or

-in the case of the right to freedom of expression and the press which is circumscribed by the right of the State to impose certain conditions concerning certain persons and in certain circumstances, to, among others, prevent the disclosure of information received in confidence, regulate telephony, wireless broadcasting, television or the exhibition of cinematographs films or to impose restrictions upon persons holding governmental office or members of the armed forces or police or other government security services or agencies established by law; or

-in the case of the right to freedom from discrimination which is derogated by the right of the State under certain circumstances to discriminate against certain persons under certain physical or mental conditions which inevitably precludes them from being treated equally with others; or

-in the case of the right to acquire and own moveable property anywhere in Nigeria which is equally derogated by the rights of the State, under certain circumstances, to compulsorily acquire property anywhere. Even the right to 'fair hearing' is made subject to the person entitled to it making timely "representations" to a court or tribunal or a panel of inquiry before they make a decision affecting him. Thus, the right to fair hearing is derogated by the exigencies of 'time' and of 'space'.

In fact, most of these rights specifically are listed under Section 45 of the Constitution on 'Restriction and derogation from fundamental rights' where it is stated that in the enjoyment of these rights "Nothing... "shall invalidate ANY LAW that is reasonably justifiable in a democratic society, provided that such law is: (a), in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons".

In Badejo v. Minister of Education, the Supreme Court said that "although a fundamental right stands above the ordinary laws of the land, no fundamental right stands above the country, state or the people". Also in Medical and Dental Practitioners Disciplinary Tribunal v. Emewulu, the same Apex Court held that all freedoms are limited by state policy or overriding public interest.

Seditious Acts

The reference therefore to 'any law' in Section 45 of the Constitution will necessarily include the law of 'Sedition' under the Criminal and Penal Codes (Sections 51-1 and 416 respectively) which criminalise any 'act', 'speech' or 'publication' intended among others, 1) 'to bring into hatred or contempt or to excite disaffection against the person of the President... .'; or 2) 'to excite the citizens or other inhabitants of Nigeria to attempt to procure the alteration, otherwise than by lawful means, of any matter in Nigeria as by law established'; or 3)'to raise discontent or disaffection amongst the citizens or other inhabitants of Nigeria'; or 4)'to promote feelings of ill-will and hostility between different classes of the population of Nigeria' (Section 50-2) -all of which the demand by public protest, for Buhari's return or resignation, in our present circumstances, can cause.

Postscript

A RIGHT they say may be legal or moral; and that whereas the violation of moral right lies only in the chastisement of public opinion, the violation of legal right lies in the remedies provided for by law. It is the moral right of any to criticise Buhari for staying 'too long' on medical treatment, it is not their 'legal right' to compel him to return or to resign unless they can show a law upon which their claim can be based. Someone first has to be bound or obligated by law to do something or to forebear a certain condition before he can then be accused of neglecting to be bound by or to forebear those conditions.

Or so the maxim of law says 'nulla poena, sine lege' -no punishment without a law.

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