70 days outside office: Lawyers divided over Buhari’s absence from duties

THE continued absence of President Muhammadu Buhari from office has triggered a debate over the number of days he can stay away from his duties on account of sick leave or any other leave.

Although the 1999 Constitution as amended is silent on the length of days the president can be absent from his office, some right activists and lawyers have reasoned that the provisions of the Public Service Rules signed into law in 2008 have filled the constitutional lacuna.

It is 70 days today since President Buhari was flown out of the country for further medical attention and the president had earlier in the year spent 49 days in London, making a total of 119 days in 2017 alone.

In the letter dated 7th May and transmitted to the Senate asking the Vice-President Yemi Osinbajo to act as “coordinator of government affairs” in his stead, Buhari hinted he would be away for as long as his doctors were satisfied about his fitness.

“In compliance with Section 145 (1) of the 1999 Constitution as amended, I wish to inform the distinguished Senate that I will be away for a scheduled medical followup with my doctors in London. The length of my stay will be determined by the doctors’ advice,” Buhari had said.

Senior lawyers in the country are not speaking with one voice on what should be the fate of ailing the ailing president Buhari over his prolonged sick leave in London.

Acting President Osinbajo has since been performing the functions of the office of president.

With the return date of Buhari reportedly dependent on his overseas doctors, there has been a growing call for the activation of the Public Service Rules which allow for only 42 days sick leave.

Senior lawyers have expressed divergent opinions on whether Buhari falls under the provision limiting sick leave to 42 calendar days.

Chief Ladi Rotimi-Williams, a Senior Advocate in his submission said the president wasn’t a public servant stircto senso (strictly speaking).

According to him, “he (Buhari) cannot be impeached, given the present scenario. The president does not fall under the civil service rules.

“The circumstances under which President Buhari can be impeached are governed by the provisions of the 1999 Constitution as amended. Merely being absent without more is not sufficient for him to be removed.

“This is a constitutionally-elected president unlike civil servant who is appointed. No medical doctor has forwarded a report either to the Federal Executive Council (FEC) or National Assembly, stating that the president is unfit to govern.

“At this point in time, his absence from work is temporary. More importantly, is that there is evidence that he is being briefed regularly by the Acting President.”

Constitution and human rights lawyer, Chief Mike Ozekhome (SAN), said the Public Service Rules could not be applied in the case of Buhari’s continued absence, explaining that a court had ruled on the non-applicability of such rules to some categories of elected public officers.

He said since Buhari had followed the provision of the constitution by transferring power to Osinbajo to act as Acting President, the onus was on Osinbajo to assert himself.

“If I were in the position of the Acting President, I would assert myself,” he said, adding that everything depended on individuals.

The Senior Advocate opposed the call for the amendment on the constitution to address specify the number of days the president can stay away from duties, explaining that provision had already been made for transfer of power to the vice president.

A human rights activist, Ebun Olu- Adegboruwa, disagrees. He asked the Senate to declare the office of the President vacant following Buhari’s continued absence due to ill-health.

“According to law, a civil servant or public office holder has maximum of 30 days to be out of service due to ill-health, but sadly our president has exhausted this not once but twice.

“We have not been given any reasonable explanation or details as it were. I believe it is not sufficient to have a president in proxy, since the vice-president is the one carrying out the official duties the president is supposed to do.

“This is unconstitutional and illegal. Section 5 of the 1999 constitution stipulates that we have a president who is mentally, physically capable and as it is, we don’t have that. The Senate should go ahead and declare the office of the president vacant and go ahead and swear in the vice president as the president.

“There are so many uncertainties surrounding the acting president as he cannot take certain important decisions. Investors are skeptical about investing in the economy and even then there are so many things that need the president’s approval and the vice president can’t do this,” Adegboruwa said.

National coordinator of the Right Monitoring Group, Femi Aduwo, has called on the National Assembly to activate the process of determining the true state of Buhari’s health as contained in Section 144 of the 1999 Constitution

Aduwo said although the constitution did not make provision for the number of days the president could leave his duty post, the provisions of the Public Service Rules (PSR) had filled the constitutional lacuna.

The PSR was signed into law in 2008 by the then president Umaru Yar-Adua, whose state of health also generated heated debates across the country before the National Assembly came up with the Doctrine of Necessity.

According to Aduwo, “the maximum aggregate sick leave which can be allowed an officer, who is not hospitalised, during any period of 12 months shall be 42 calendar days.”

Also speaking, a social commentator and lawyer, Liborous Oshoma, called on the president and the cabal to do the right thing.

“We employed him (Buhari). He came to us to seek employment and he campaigned. Nigerians have the right to know the president’s state of health,” Oshoma said.

“It seems that the president is incapacitated and unable to discharge his duties. The question of what the Senate and lawmakers should do now arises. Whatever the decision of the Senate will be, Nigerians should rise up and fight a unified fight.

“We can’t allow history to repeat itself again. The cabal surrounding the president should tell Nigerians the truth about his health status. The Senate knows the next line if action and they should take it,” he said.

Osun State-based attorney, Jola Akintola was of the opinion that the issue of the president’s absence was beyond the application of the Public Service Rules.

“I think it is even beyond the Public Service Rules now. It is high time the FEC and the National Assembly visited Section 144 of the 1999 Constitution as amended. The only problem is that the process under Section 144 of the constitution can only be initiated by FEC appointed by the same president.

“I don’t see it happening in Nigeria. He is likely to remain like that until he recovers or dies,” he said.

Provisions on sick leave in public service rules

070318- Sick leave for a period up to three months in the first instance may be allowed on the certificate of an approved Health Care  Provider to an officer who is hospitalised. If at the end of that period the officer is still hospitalised, his Permanent Secretary/Head of Extra- Ministerial Office must make an arrangement for him to be examined by a Medical Board with a view to ascertaining whether he should be invalidated from the service or allowed further paid sick leave.

Aggregate sick leave

070316 – (i) The maximum aggregate sick leave which can be allowed an officer, who is not hospitalised, during any period of twelve months shall be forty-two (42) calendar days. Where such an officer has been               absent from duty on the ground of ill-health for an aggregate period in  excess of forty-two (42) calendar days within twelve calendar months, the officer should be made to appear before a Medical Board with a view to ascertain whether he/she should be invalidated from service. Any period .of absence on ground of ill-health in excess of the prescribed aggregate will be without pay and will not be reckoned for purpose of increment for pension.