President’s Health, Fitness for work and the Nigerian Constitution/

At this time in Nigeria no matter who you are whether a professional, public commentator, politician or ordinary Nigerian citizen, it will be difficult to speak and provide an opinion on this topic without being branded as either for or against the person of Mr President.  

The truth must however be told on the evidence that is available for Nigerians to understand the context. What is evident is that Nigeria has a President elected along with a Vice who can and should deputise for him in his absence for any reason from poor health to other causes of absences. These reasons are meant to be temporary as it is expected that the President will come back to his post to perform the duties for which he was elected.  

The Constitution of the Federal Republic of Nigeria is clear in section 145 that whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President. This section unfortunately does not state how long he should be away. What is understood is that if he is away having done the needful then the Vice President is empowered as Acting President. However, if he comes back after an absence due to ill health and takes over his duties, then he is expected to carry out his role as required. In such a situation, it is assumed that he is fit for work. Whether he is fit for full duties or not is another ball game.

So what is fitness for work. Fitness for work is an issue that can arise for any employee – whether because of a change of job or because they are returning to work after sickness. In most organisations, employees are normally subject to a pre-employment health. This will ascertain whether there is any medical reason why the employee should not be appointed to a particular post. Unfortunately, in Nigeria this is a taboo especially in the political sphere and also because we are a nation that hides issues about our health like cats hiding their poo.

The question of whether an employee is able to do a particular job can also come up at other points in their career. An assessment should be made if they change their job to one with substantially different duties – for example, involving more physical exertion or exposure to potentially hazardous working conditions. A deteriorating medical condition or the development of a condition which is related to their work may also mean involvement of their doctors or specialists in health and work to determine their fitness.

In many developed countries, if an employee is off sick for longer than seven days, their family doctor normally has to make a decision about their fitness for work. For those organisations with occupational Health services the Occupational Health nurse of doctor may decide.

I must emphasise that fitness for work is about both the functional capability of the employee to do the work in question and the risk involved to them and others of them doing the work. Saying an employee is not fit for a particular job does not mean they are not fit to do any job.

Occupational physicians consider a number of issues which may need to be looked and these include: the chances of the employee recovering from the condition, whether there is any prospect of improvement in their abilities, whether the work they do will make the condition worse, the extent to which the worker is unable to do the job – and whether any adaptations could be made, the employee’s ability to do other jobs within the organisation as well as the employee’s views.

In many cases, the worker may be fit to work but not fit for a particular job or task within that job. Some of these issues may be overcome by offering the worker alternative employment or by redesigning the job they do or providing adjustments. Usually an occupational health department can assist in this. Such adjustments can be physical adjustments, allocation of some of their duties to another employee, transferring the disabled person to another post in the same organisation, changes to working hours which may enable them to return to work or continue working – this could include working shorter hours, job-sharing, working from home and so on.

But any decisions will also need to bear in mind: any additional risk to the organisation by allowing the employee to continue, risks to the employee themselves from continuing, the effect on their fellow workers – and the impact on them on a redesigned job for a colleague which may put additional duties on others.

One may ask what has this got to do with Mr President? Of course, he is the number one worker in Nigeria. In a previous write up “Putting Occupational Health On The Political Agenda In Nigeria” March 13, 2009, I posited same. That was the time of President Yar‘Adua. Like then, there are several reports about the health of the President. I believe there are confidentiality issues around personal medical information and individuals have rights to keeping their medical information confidential unless they give their consent or if there is a greater effect on public interest over and above the right of the individual. Therefore, probing into such information is usually not in the best interest of the individual and most individuals will resist it especially in our volatile political clime. With regards to our current President, what appears to be evident is that all may not be well with him based on the information available in the public domain.

So the question is Mr president fit for the role? From the outside and without detail information about the health condition and its treatments, side effects and likely functional limitations we cannot say categorically if he is fit or not fit. Obviously however it seems some adjustments are already being made like working from home, reduction in hours of work and reduction in work load and delegation of some duties. Going forward it may be helpful for more openness with regards to what he is actually able to do or not do and for how long this is likely to continue. The role of the President is very tasking, requiring mental and physical agility. Because of the political situation, the role causes sleep deprivation as many meetings are held late night. The role requires physical presence, stamina, lots of energy, concentration and other cognitive requirements. It is a high mental functioning role among other requirements.

The country needs to move forward and some may say after all we are not stagnant now. But what we have now is an ill President on seat with a Vice President. Obviously, a Vice President is different from an Acting President in all ramifications especially in a cabalised environment. If the President continues in his role and is not able to carry out the duties, it gives room for backyard pseudo presidents among his aides. These persons were not elected with the President and constitutionally this would be an aberration in my lay man’s opinion. The option is therefore for the President to go on for further treatment even indefinitely and let there be an Acting President. That way the shouts about his incapacity for work will have a foot to stand as he is undergoing treatment. Also until such a time when he will inform the Legislators he is incapable he remains the President because permanent incapacity appears difficult to prove as required in the constitution.  

This brings me to what the constitution says about ongoing incapacity which may be considered as permanent.

Section 144. (1) The President or Vice President 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 Federation it is declared that the President/Vice President 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 President of the Senate and the Speaker of the House of Representatives.

(2) Where the medical panel certifies in the report that in its opinion the President/Vice President 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 President of the Senate and the Speaker of the House of Representatives shall be published in the Official Gazette of the Government of the Federation.

So what would I consider permanent incapacity in an employee? Permanent incapacity in an employment with retirement age will refer to the person being permanently incapable of discharging their duties of their own or an alternative role until at least their retirement age which is the time period the employer expects the employee to work satisfactorily and effectively. How will this apply in political offices? Of course, we know that these political offices are tenured and not lifelong. Therefore, it is apt to infer that permanent incapacity in political offices refers to incapacity to do the work until the end of the tenure. If the post is a 5-year post and renewable for another 5 years we could at best be looking at 10 years from the date of first employment.

Finally, if we see Nigeria as a concern that needs to succeed then the strong message here is that good health is good business. The evidence available is that Presenteeism which is working while sick can cause productivity loss, poor health, exhaustion and workplace epidemics and is of greater economic impact and I add political impact than absenteeism. May God grant them wisdom to do what is right for the benefit of Nigeria.