During campaigns of political parties and their respective candidates for elections into public offices, Nigerians, by implication, are expected by the Constitution to examine the state of health of any person that aspires to hold the office of the Governor of a State, in order to determine the physical and mental fitness of that person to occupy the office of Governor. This makes good health a factor in the election of a governor into office, and in his continuance in office.
The reason is obvious. A sick governorship aspirant or a candidate ought not be allowed to trick the electorate to obtain a mandate, which he/she may not be able to complete. If candidates suppress information or gives misleading information regarding the state of their health and are elected, then the election will be vitiated by fraud, deceit, material non-disclosure or misrepresentation. Just as a contract can, in law, be vitiated by fraud, deceit or misrepresentation, and voided on that basis, the electorate, through their elected representatives, can halt the tenure of such an elected executive in office.
A sick governor who is either not fit in body (arguably) or in mind or is not fit in both ought not to be allowed to continue in office, lest the affairs of state and discharge of his executive functions suffer neglect, paralysis, or opportunistic interventions, interference and manipulations by aides, family members and other proxies, not vested with executive powers of a State.
This is why, at this point, it is important to discuss the state of health of Danbaba Suntai, Governor of Taraba State, which has remained a matter of national concern since he piloted himself, in October 2012, into an almost fatal airplane crash, and a political turmoil, the consequence of which was first, an evacuation to Germany for medical attention, and later to the United States of America, from where he has just returned. He was away from his duty post for ten months! While away, his deputy, Garba Umar acted as Governor.
Upon return, Governor Suntai, a public servant, who, after his choreographed and well publicized airport arrival, has not been seen performing or attending any public function, but has been kept in domestic seclusion at the Taraba State Governor’s Lodge, has not only “written” a letter to the Taraba State House of Assembly (HA), indicating his readiness to resume his functions as Governor, but also has “dissolved” the Executive Council of Taraba State.
State of Health of Aspiring Governor
Section (S).182(1)(c) of the Constitution provides that “no person shall be qualified for election to the office of Governor of a State if, under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind.”
It is our considered opinion that for a person to be disqualified from election to the office of the Governor, under this Section, his state of mental health must have been pronounced upon, by a judicial or a quasi-judicial body, which can only adjudge or declare, under a lunacy law.
A medical report that a person is a lunatic or a medical certification that a person is undergoing a psychiatric treatment is not constitutionally sufficient to disqualify that person from contesting for the office of the Governor.
By the decision of the Supreme Court in the case of Action Congress v. INEC ( 2007),12 NWLR, Pt.1048, 222 at 259 -263, a judgment of lunacy or a declaration of unsoundness of mind will not, by itself, disqualify a person from contesting for the office of Governor. INEC cannot disqualify any candidate for reason of being adjudged a lunatic or for being declared to be of unsound mind, even if the person was the one that submitted a document to this effect to INEC.
It is only a court of law that can act on the judgment of lunacy or a declaration that a candidate is of unsound mind, to disqualify the candidate from contesting in an election. If an adjudged lunatic puts himself up for election and no legal action is instituted by an interested party to have him disqualified from participating in the election, INEC is duty bound to present him to the electorate to be voted for. This is the wisdom of the Supreme Court’s judgment!
While S.182 (1)(c) of the Constitution makes soundness of mind a condition for qualification for election to the office of governor, there is no provision in the other subsections in S.182 (1) which makes “physical wellness” or “soundness of the body” a condition for qualification for election to the office of the Governor.
Does it then mean that a person whose health is seriously impaired or who is terminally ill cannot be barred from seeking election into the office of Governor, or is the Constitution relying on the electorate to determine the suitability or electability of such a person for election as Governor?
Is it out of sensitivity to the condition of physically challenged persons, who, medically, may be categorized as infirm in body, that made the framers of the Constitution to refrain from making soundness of body a condition for qualification to contest a governorship seat; or is it because of the difficulty in agreeing to a comprehensive list of ailments that could be said to pose a serious threat to life or categorized as causing infirmity of the body?
For example, can cancer, leukemia, nervous disorder, epilepsy, renal problem, liver cirrhosis, hypertension, stroke, Parkinson disease, tuberculosis, hepatitis, HIV/AIDS, and diabetes be categorized as infirmity of the body; and if they could be so categorized, should any of these health situations bar a person from contesting for the office of the Governor?
Although space constraint does not permit us to treat the posers above, we can, at least, declare that the Constitution does not contemplate that a person whose health is seriously impaired or who is terminally ill will seek to occupy the office of the Governor of a State. It cannot be the intendment of the framers that such a person, whose existence, medically, is not assured beyond a year, for example, should participate in an election to the office of the Governor, the term of which is four years, thereby standing the chance of being elected to such an office, and transiting soon after the election. In taking this view, we draw inference from S. 8 of the Labour Act, Cap 11, Vol. 8, Laws of the Federation of Nigeria, 2004, Rules 09103, 09104, 09207(a) in Chapter 9 of the Public Service Rules and Rule 01001 in Chapter 1 of the same Rules.
The provisions of the law and Public Service Rules cited above mandate any intending worker, civil servant or public servant to undergo a compulsory medical test before taking up employment or appointment.
Instructively, Rule 01001 in Chapter 1 of the Rules provides that in so far as the holder of the office of the Governor, among others, is concerned, the Rules apply only to the extent that they are not inconsistent with the provisions of the Constitution, in so far as his conditions of service and any other law applicable to him is concerned.
Since no constitutional provision governs medical examination, infirmity or incapacity of a governorship candidate or a governor-elect before assumption of office to determine his medical fitness to hold the office, the provision of the Rules may well supplement the silence of the Constitution in this regard, to require that a governorship candidate should disclose publicly the true state of his health during an electioneering campaign, and that when he is elected, to undergo a medical examination before assuming office.
Incumbency and capacity to discharge Functions of Office
The job of the Governor of a State is full time. S. 183 of the Const. provides that “the Governor shall not, during his tenure of office, hold any other executive office or paid employment in any capacity whatsoever.”
Maintaining and preserving the dignity of the office of Governor and ensuring that the office does not turn into a trading post for the pursuit of private business interests is the rationale of this provision. But it is clear also that the Section is an indication of the all-consuming nature of the job of the Governor.
This being so, it can be said that the Constitution expects any person who holds the office of Governor to be as fit as a fiddle to do the job.
S.189 of the Const. provides extensively as follows: “(1) the Governor or Deputy Governor (DG) of a State 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 State, it is declared that the Governor or DG 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 Speaker of the State HA;
(2) where the medical panel certifies in the report that in its opinion the Governor or DG is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice thereof signed by the Speaker of the HA shall be published in the Official Gazette of the Government of the State;
(3) The Governor or DG shall cease to hold office as from the date of publication of the notice of the medical report pursuant to Subsection 2 of this Section;
(4) the medical panel to which this Section relates shall be appointed by the Speaker of the HA, and shall comprise five medical practitioners in Nigeria- (a) one of whom shall be the personal physician of the holder of the office concerned; and (b) four other medical practitioners who have, in the opinion of the Speaker of the HA, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions;
(5) In this Section, the reference to “executive council of the State” is a reference to the body of Commissioners of the Government of the State, howsoever called, established by the Governor and charged with such responsibilities for the functions of Government as the Governor may direct”
Following the constitutional crisis that was created by the illness of President Umaru Musa Yar Adua, his refusal to transmit a letter disclosing his inability to discharge the functions of his office to the National Assembly, the state of interregnum and governance vacuum that was foisted on the Country thereby, and his eventual demise, the 1999 Constitution was amended vide the First Alteration of the Constitution, which came into effect on 6th day of January, 2011. A new S. 190 of the Constitution was substituted for the old S. 190.
The amendment now compels a governor to transmit a communication of unavailability or incapacity to discharge the functions of his office to the Speaker of HA, within 21 days, failing which the HA shall mandate the DG to act as Governor, pending when the Governor transmits a letter to the Speaker HA that he is available to resume his functions.
This is how the new S.190(1) frames it: ” Whenever the Governor is proceeding on vacation or is otherwise unable to discharge the functions of his office, he shall transmit a written declaration to the Speaker of the HA to that effect, and until he transmits to the Speaker of the HA a written declaration to the contrary, the DG shall perform the functions of the Governor as Acting Governor”; and that “(2) In the event that the Governor is unable or fails to transmit the written declaration mentioned in subsection (1) of this Section within 21 days, the HA shall, by a resolution, made by a simple majority of the vote of the House, mandate the DG to perform the functions of the office of the Governor as Acting Governor, until the Governor transmits a letter to the Speaker that he is now available to resume his functions as Governor”
From the wordings of S.189 of the Const., it is clear that those who are constitutionally empowered to flag off the removal of the Governor or DG on the ground of incapacity to discharge the functions of his office are members of the Executive Council of the State, brought into the executive branch of government by the Governor and DG, and who, presumably, are loyal to either or both of them.
To this extent, it can be seen that, except the members of the Council are patriotic, they are unlikely, owing to selfish political reasons, to declare that the Governor or DG is unable to discharge the functions of his office, even when the Governor or DG is glaringly in such a state of incapacity. Obviously, before the HA can exercise its powers under the Section, the Executive Council of the State must have acted.
Does it then mean that if the Governor or DG is in a state of undeclared but apparent incapacity, nothing can be done by the legislative and judicial arms of government? Or if a Governor, who is in a state of such undeclared but apparent incapacity, preemptively and mischievously “dissolves” the Executive Council of his State in order to prevent it from making an imminent declaration of incapacity, as it now appears Governor Suntai has done by his “dissolution” of the Executive Council, is that is the end of the matter? Our answer to this question, is No.
If the Council decides not to act, a court of law may compel them to perform their public and constitutional duty, in an action, instituted by a Nigerian that is clothed with the requisite locus standi. The HA could pass a resolution mandating the Council to act.
If the Council does not have a preliminary medical foundation to act upon, owing to the refusal of the Governor or DG to grant access to his medical records, to enable the Council act appropriately, the HA could pass a resolution mandating the Governor or DG to make disclosures, regarding the state of his health.
If the Governor or DG defies the resolution, the defiance could be regarded and treated as an impeachable offence or an act of gross misconduct, depending on the balance of political forces in the HA. Similarly, if the Governor disbands the Executive Council to prevent it from making a declaration of incapacity, such a blatant act preventing or frustrating the lawful exercise of a specific power vested in the Executive Council ( a body created by the Const.) can ground an allegation of gross misconduct, warranting impeachment proceedings to be commenced against the Governor or DG, under S. 188 (1-11) of the Constitution The HA, which has power, under S. 4(7) of the Const., to make laws for the peace, order and good government of the State, has general powers to take these oversight or check and balances measures that we have proposed.
S.189 needs a clearer rewording. Permanent incapacity as a ground for removal of a Governor or DG from office is not precisely defined in the Const.. If a sitting Governor or DG goes blind, or becomes deaf, dumb or crippled due to an accident for example, does that constitute a permanent incapacity, as to render him unfit to discharge the functions of his office? Even if a certified medical report, required by the Constitution, says so, is such certification closed to argumentation or objection?
On the other hand, can a sitting Governor or DG that suffers a devastating stroke, which though may not be a permanent incapacity, but which, all the same, will take the Governor or DG almost half of a whole term of four (4) years to recover from, not be removed from office on the ground of temporary incapacity, even when such a temporary incapacity is not a ground for removal, specified in the Constitution?
Can a blind, deaf and dumb or a wheelchair bound aspirant or contestant to the office of Governor or DG be disqualified from so contesting because of the status of his disability, in the face of international norms and standards protecting the rights of those with disabilities? Why would S.56 of the Electoral Act, 2010 specially recognize the right of those with disabilities to vote, if this category of persons have no right to be elected, to the office of Governor?
The brand new S.190 of the Const. is not free from duplicitous interpretation too. The Section is sufficient as it is. But those who are spinning the Taraba tragicomedy may exploit the “loopholes” in this seeming foolproof Section. The Section, without more, provides that the DG shall perform the functions of the office of the Governor as Acting Governor, “until the Governor transmits a letter to the Speaker that he is now available to resume his functions as Governor”.
What happens if an unyielding Governor whose incapacity is presumed after the 21 days of undeclared but apparent incapacity, writes a letter of availability to resume his functions to the Speaker, no sooner than the passage of the resolution of the HA mandating the DG to act as Governor; or when a Governor, who apparently is still unsound in mind or body writes a letter , stating that he is well to resume the functions of his office?
The latter scenario now appears to be the case in Taraba State. Governor Suntai has “delivered a letter of availability to resume functions as Governor” to the Speaker HA. A literal reading and technical interpretation of the words in the provision may lead to a conclusion that he has satisfied the constitutional requirement for resumption of his functions, when, from available evidence, he is still unfit, in body and/or mind, to govern the State.
The short route to take to clear all doubts about the actual state of health of Governor Suntai is for him to address his State or appear before the HA or for the Governor to conduct a meeting of the Executive Council of his State.
He is not under compulsion to address his State. He has dissolved the Executive Council, and until he reconstitutes it, there is no Executive Council meeting for him to chair or conduct. As to appearing before the HA, as the Speaker HA has reportedly demanded before the Governor’s letter could be considered, the Governor’s Camp may argue that Section 190 does not compel such an attendance or appearance, and that such an attendance cannot be imported into S. 190.
The Governor’s Camp may rely on the provisions of Ss. 108 and 121 of the Constitution to argue that there are only three situations in which the Governor of a State may ( and not shall) appear before the HA. S.108 states that ” the Governor may attend a meeting of the HA of the State, either to deliver an address on State affairs or to make such statement on the policy of government as he may consider to be of importance to the State.”
He could also rely on S. 121 on appropriation which states that ” the Governor shall cause to be prepared and laid before the HA at any time before the commencement of each financial year estimates of the revenues and expenditure of the State for the next following financial year” and further that the power exercisable by a HA or HA Committee to summon any person to give evidence and issue a warrant to compel the attendance of such a person is limited to matters listed in S. 128 (2)(a & b) of the Constitution; and that in any case, that power is not applicable to a Governor, who, by virtue of his enjoyment of the cover of immunity under S. 308 of the Constitution, cannot be issued a summons or compelled, by issuance of warrant, to appear before a HA or its Committee.
The implication of this line of argument is that the Executive Council or a HA may not be able to discharge Suntai from power under Section 189 of the Const.
Conclusion
Sure, fidelity to the cold letters of the Constitution is salutary. However, the spirit behind these letters is far more important.
The avowed and much trumpeted supremacy and binding nature of the provisions of the Constitution, are not the ultimate guarantee that the Constitution is secure from subtle manipulation and blatant abuse by the governing elite.
What compels, nay impels a willing submission to the will of the Constitution, paradoxically, lies outside the Constitution. These are democratic culture, values, morality and ethics, and basic human decency. Sadly, these qualities are rare to find amongst our ruling pharaohs who loath to leave power as much they loath power leaving them.
Mr. Ogunye, a constitutional and human rights lawyer in Lagos, writes a regular public affairs and legal opinion on state of the nation for PREMIUM TIMES.
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