Constitutional implications of the coronavirus pandemic in Nigeria


If there were any lingering doubts in the minds of Nigerians about the reality of the coronavirus (COVID-19) pandemic that is rapidly spreading all over the world, then such doubts were certainly shattered by the news, which came in quick succession in the last 48 hours, first, Nigeria’s first fatality from the virus following the death of Suleiman Achumugu, a former managing director of the Petroleum Products Marketing Company; second – and perhaps more significantly – that the Chief of Staff to the President, Abba Kyari, and third, that the Governor of Bauchi State, Bala Mohammed had all tested positive to the COVID-19. While these three high profile cases have the advantage, if such a thing exists at this time, of dispelling the myths about the existence and the potency of the virus in Nigeria, they, however, especially in the case of Abba Kyari, raise the fundamental question of the potential constitutional implications of the coronavirus pandemic on Nigeria’s ruling class, especially the issue of succession.

As at the end of 24 March, the official figures from the Nigeria Centre for Disease Control (NCDC) show that Nigeria has a total of 46 confirmed cases, two of whom have recovered while one person has died. This number mirrors the early days of the outbreak in places like Italy, the United States, and the United Kingdom, and if there is any lesson that Nigeria must learn from the experience of these countries in their [mis]handling of this pandemic, it is the need to tackle the virus and its consequences head-on, and not to play the ostrich.

What is even more profound about the coronavirus pandemic is that new developments are taking place at such breath-taking speed. Nigeria’s seat of power, Aso Rock, has virtually shut down as a result of the positive outcome of Abba Kyari’s test; and very significantly too, the President, Vice President, some State Governors and some of our legislators have gone into self-isolation. Both the President and Vice President, thankfully have tested negative.

It is, however, not enough to shut down Aso Rock. A number of questions must be asked and answered regarding the circumstances surrounding the case of the President’s Chief of Staff. The Chief of Staff visited Germany on 10 March 2020, in the company of the Minister of Power, Saleh Mamman and the Executive Chairman of the Nigerian Electricity Regulatory Commission, James Momoh for discussions with Siemens on improving the country’s power supply. They returned to Nigeria on 14 March, passing through the United Kingdom and Egypt before returning to Nigeria. In other words, the Chief of Staff to the President visited three countries that are currently dealing with a significant COVID-19 emergency, with a combined infection rate as of 24 March, of 37,460 and a total of 559 deaths.

In the seven days between Mr Kyari’s return to Nigeria and when he fell ill, rather than self-isolate as the Nigerian Centre for Diseases Control’s guidelines over the past fortnight stipulated, he came in close contact with a lot of Nigeria’s power elite. On 16 March 2020, Mr Kyari met with the Chairman of the All Progressives Congress (APC), Adams Oshiomole to resolve the impasse within the APC leadership. The next day, Mr Kyari led a delegation which comprised the Minister of Special Duties, George Akume; Minister of Information, Culture and Tourism, Lai Mohammed; Minister of State for the Federal Capital Territory, Ramatu Tijjani; Minister of State, Foreign Affairs, Zubair Dada; and the President’s spokesman, Garba Shehu on a condolence visit to the Kogi State Governor, Yahaya Bello, over the death of his mother.

On 18 March 2020, Mr. Kyari met with President Buhari in the Aso Rock Villa, with other guests present. That same day, Mr. Kyari attended the Federal Executive Council alongside the President, the Vice President, Yemi Osinbajo, and most, if not all, the Ministers of the Federation.

Rather ironically, Mr. Kyari attended a meeting of the Presidential Task Force which is tasked with the responsibility of coordinating the country’s response to the pandemic. In attendance at the meeting which was held on Saturday 21 March were the Ministers of Health, Aviation, and Humanitarian Affairs as well as the Director-General of the NCDC. That same Saturday, he attended a wedding ceremony that was also attended by the Governors of Kano and Katsina states, Abdullahi Umar Ganduje and Bello Masari respectively. Newspaper reports suggest that he also came in contact with the Inspector General of Police, Mohammed Adamu; the Central Bank Governor, Godwin Emefiele, and Nigeria’s richest man, Aliko Dangote.

As if to buttress the official slackness, despite all of this, shortly after Mr. Kyari was confirmed to have tested positive to COVID-19, the Secretary to the Government of the Federation, who incidentally also doubles as the head of the aforementioned Presidential Task Force, and the Minister of Information paid a solidarity visit to him.

Though there has not been a confirmed case of COVID-19 infection among any of the country’s legislators, some Senators recently attended an event in London, a city currently on lockdown as a result of the virus, and one of the countries in respect of which a flight restriction is in place. Indeed a curious letter was circulated at the beginning of this week, issued by the same Chief of Staff and addressed to the Speaker of the House of Representatives. The letter complained about an alleged refusal of some members of the House, who had recently returned to the country, to subject themselves to tests.

Nigeria’s ruling class has not conducted itself without blemish since the outbreak of the pandemic. It is against this backdrop that it becomes pertinent to examine the line of presidential succession in the unlikely event of the incapacitation of the President and/or Vice President and Governors and/or Deputy Governors of states in particular and the potential constitutional implications of the coronavirus pandemic on the efficient working of Nigeria’s political system.

In most democracies, there is a clear line of succession in the unlikely event that both the President and the Vice President become incapacitated, die, resign from office, are removed from office, or are otherwise unable to perform the functions of their office either temporarily or permanently.

The 1999 Nigerian Constitution (as amended) recognizes this possibility and provides for a line of presidential succession. Section 146(2) of the Constitution provides that where any vacancy occurs in both the offices of the President and the Vice President at the same time, the President of Senate shall hold the office of President for a period of not more than three months, during which there shall be an election of a new President, who shall hold office for the unexpired term of office of the last holder of the office. There are two major drawbacks to this provision.

First, under the extraordinary circumstances which the entire globe finds itself in, in which virtually all major events have been postponed or outrightly canceled, it would be mission impossible for the Independent National Electoral Commission (INEC) to successfully conduct a general election within three months. This, therefore, poses a serious political risk. What happens after three months and INEC is unable to conduct a general election? Who takes over from the Senate President?

Second, it has now become obvious that the drafters of the Constitution did not possess sufficient foresight in restricting the line of succession to the Senate President. What if the Senate President is also unable to perform the functions of the office? Who takes over from the Senate President? Indeed, in some countries, the law makes provisions for what will happen in the event that the entire ruling class is also incapacitated. In the wake of the COVID-19 outbreak, such a scenario that once appeared far-fetched (except perhaps in times of war) suddenly no longer feels so remote.

Using the illustrative example of the United States of America, there is a Presidential Succession Act of 1947 (as variously amended) which provides for the performance of the duties of the office of President in case of the removal, resignation, death, or inability of both the President and Vice President. Although the Act has been criticized for being unconstitutional, it nevertheless outlines a long list of officers of the United States who will take the reins of power in the event that the President and Vice President are unable to perform the functions of that office. Those officers include:

“…Speaker of the House, President pro tempore of the Senate, Secretary of State, Secretary of the Treasury, Secretary of War, Secretary of Defence, Attorney General, Postmaster General, Secretary of the Navy, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labour. Secretary of Health, Education, and Welfare, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, and Secretary of Homeland Security.”

Further, the United States recognizes a concept known as a designated survivor (or designated successor) whereby a named individual in the presidential line of succession, is designated to stay (at a secure and undisclosed location) away from official events such as the State of the Union addresses and presidential inaugurations. The practice, which originated in the 1950s during the Cold War with its risk of a nuclear attack, is intended to safeguard continuity in the office of the President in the unlikely event the President along with the Vice President and multiple other officials in the presidential line of succession died in a mass-casualty incident. This is foresight.

Nigerians are hopeful people and this sensibility often translates into a distinct inability or unwillingness to accurately forecast and plan for likely future scenarios. of, especially where the discussion relates to illness and/or death.  One of the lessons that countries draw from times of crisis is to amend their laws to prevent a constitutional crisis or to forestall a repeat of a crisis situation.

There is no gainsaying the fact that the present ruling class in Nigeria has acted irresponsibly, both in terms of how they have managed the affairs of this country, and how they have conducted themselves in the past few days. There will be time for that inquest. In the meantime, the National Assembly should as a matter of urgency (while it still can) ensure the alteration of the Constitution to expand the line of, or provide more certainty concerning presidential succession; and either remove the mandatory requirement of holding a general election within three months of the Senate President took power, or make alternative provisions in the event that a general election cannot hold. Anything short of that, and we are planning to foist a constitutional crisis on ourselves. Our hands are already full dealing with a fast-evolving and dangerous pandemic, the least we can do is provide certainty about who will be at the head of the effort in tackling it.

SB Morgen Intelligence