The Legal and Political Implications of Unconstitutional Impeachment in Nigeria

Abstract

One of the interpretations given to the concept of the rule of law is that of equality of all persons before the law, this implies that all person’s conduct and actions whether of noble, government officials, or mere citizens must conform with the general law of the land and there should be no exclusion or discrimination in the application of the law.

Hence the law should apply to the people and also to the ruler except for the privileges or immunity granted by the constitution or other law for certain public officers during their terms in office.

This does not in anyway mean that those executive with immunity can go scot-free when guilty of misconduct and impeachment has been the most apparent, effective and universally adopted method of holding them accountable since there is no doubt that in any administration of government, there are bound to be depraved and corrupt officials whose selfish interests and conduct are capable of jeopardizing and hindering the smooth progress of the state or the nation. Hence the need to take appropriate measures to curb and punish these officials is highly imperative and of utmost importance to the proper and effective administration of the government as the abuse of power by the executive can only be reduced through the proper use of the instrumentality of impeachment in the hands of the legislature.

Introduction

The impeachment process is not alien to Nigeria’s system of government and a myriad of impeachments of Nigerian government executive officers from office have been recorded both at the federal and state levels as the first formal impeachment case was recorded in the Second Republic, the case against Governor Balarebe Musa of Kaduna State in 1981 and over the years, Nigeria has witnessed different impeachment of executive officers from office which is often marked as a result of intra-political party disputes, it is in this same event that the former Governor of Ekiti State, Ayo Fayose was impeached in 2006, the same goes for the Governor of Plateau State, Joshua Dariye who was also impeached on November 2006 as well as Governor Rashidi Ladoja of Oyo State impeached on January 2006.

Surprisingly, in all of the above-mentioned cases, impeachment was conducted in defiance of the established constitutional procedures and disregard for the court orders.

While impeachment serves as a mechanism for holding public officers accountable it has also been criticized for being politically motivated and for lack of transparency.

This article seeks to briefly analyze the constitutional frameworks and the legal procedures of impeachment, the manner of the application of the concept of impeachment in the hands of the legislature, the legal and political implications, and the role and position of courts in the impeachment process.

The Adoption of Impeachment Process in Nigeria’s System of Government

Since the constitution of Nigeria like other democratic constitutions creates the offices of the President, Vice President, Governor, and Deputy Governor and expressly dictates their duties and responsibilities, this same constitution also prescribes how they leave office, hence it is safe to say that executive officers leave offices not only at the expiration of his tenure or his death or incapacitation but also upon impeachment.

Impeachment is therefore both a constitutional provision and political arrangement for the removal of certain categories of elected executive officers from office through the legislative process for gross misconduct or grave violations of the constitution, the impeachment provision is enshrined in the 1999 FRN constitution in both Section 143 and 188 as a result of the immunity granted and enjoyed by the executive officers while in office.

 The impeachment Process in Nigeria is a product of the adoption of a presidential system patterned after the United States model and it was adopted into Nigeria’s system of government as a means of removing and holding public officers accountable for misconduct including the President, Vice President Governor, and Deputy Governor if they engage in actions detriment to the public interest or the integrity of their office.

 Impeachment in Nigeria has its root in the country’s political history and it draws from parliamentary and presidential principles aiming to ensure checks and balances within the government, and for checkmating executive recklessness and abuse and a very useful instrument for instilling the principle of accountability.

The Doctrine of Checks and Balances in the Impeachment Process

There are various methods of holding corrupt government officials accountable for their misconduct, this is in line with the seemingly establishment of different disciplinary measures that can be taken against any such government officials such as temporary suspension from office, permanent dismissal, demolition, and prosecution for criminal offenses, these measures are necessary to ensure proper compliance with the rule of law and to keep government officials actions within the boundaries of the law.

These measures are predicated on the doctrine of checks and balances which is usually employed to check the other’s misuse of governmental powers and operates to ensure that each government official’s actions are subject to check and review and of course, in conformity with the law of the land.
In other words, checks and balances are the constitutional controls that separate branches of government to ensure that they have limiting power over each other so that no branch will become supreme or encroach on and exercise the power of another and each arm serves as a check on the misuse of power by the other, the purpose of the doctrine is to ensure that governmental powers will not be used in an abusive manner hence where an executive actions are not being checked, reviewed or challenged then there is bound to be an abuse and misuse of power, misconduct, and such executive may operate with impunity and total disregard for the due process.

However, it is not all executive officers that are generally subject to civil or criminal proceedings in the ordinary courts for misconduct, and the only potent way of sanctioning executive office holders be it the President, Vice President, Governor, or Deputy Governor as the case may be, over the decades has been through an impeachment process.

The Constitutional Procedures for Impeachment in Nigeria

The constitution both 1979 and the1999 as amended provides in detail for the procedures for impeaching an executive from office as contained in Section 143 which relates to the removal of the President or the Vice President and Section 188 which applies to the removal of a Governor or his Deputy Governor from office. These procedures as contained in the Constitution have three crucial stages and could however be succinctly summarized in the following;

First, there must be allegations of gross misconduct which must be stated in detail and signed by at least one-third of the members of the House and the allegations must be presented to the President of the Senate or the Speaker of the House of Assembly, and no other person.

Secondly, within Fourteen days, the recipient (President, Vice President, Governor, or Deputy Governor), is expected to reply to the allegations before the expiration of that period and the House must decide on whether or not to investigate the allegations. A decision to investigate the allegations requires a resolution of at least a two-thirds majority, where the requirement is not met, the impeachment proceeding automatically terminates and the House cannot go further with the process.

Thirdly, where the House is resolved however by the required majority vote that the allegations be investigated, the Chief Justice of Nigeria or the Chief Judge of a State is duly informed and is expected within seven days of the resolution to set up a panel of seven persons who in his opinion are of proven and unquestionable integrity to investigate the allegations and where the panel decides that the allegations are proven then the impeachment proceeding enters its final stage. When within fourteen days of the presentation of the report, the House takes a second vote by a two-thirds majority vote of all its members and where such a resolution is passed the President, the Vice President Governor, or the Deputy Governor stands impeached.

This process shows the power and authority of the legislature in removing the executive from office, the court on the other hand, by the virtue of Subsection 10 of each of these sections, does not have the power to entertain any proceeding relating to impeachment unless such impeachment was done maliciously, politically motivated and outside the procedures laid down by the constitution then the court will assume jurisdiction to review such impeachment whether it is done by the constitutional procedures or otherwise.

The role of the courts with respect to the impeachment process is to ensure that all the constitutional provisions regulating the exercise of the power of impeachment are duly respected. Thus the Supreme Court reiterated the role expected of the courts to perform in such cases when it stated as follows;
“Impeachment of elected officials is a serious matter and should not be conducted as a matter of course. The purpose is to set aside the will of the electorates as expressed at the polls. It has implications for the impeached as well as the electorates who bestowed the mandate on him. Whether it takes one day or the three months prescribes by law, the rules of due process must be followed. If the matter is left at the whims and caprices of politicians and their panels, a state or even the entire country could be reduced to the status of banana republic, the procedure for impeachment and removal must be guarded jealousy by the courts”.

The implications of unlawful and unconstitutional impeachment as illustrated in the above judicial pronouncement go far beyond the ordinary adverse effect of breaking down of law and order or diminishing the authority of the court but also have the potential of thwarting the will of the electorates who elected such executive officials into an office and it is the constitutional duty of the courts to ensure proper compliance of the constitution by the legislature in the process of impeachment.

Impeachment Process in the Hands of the Legislature

A closer look at the manner of the past impeachment proceedings held against many government executives by the legislature would reveal the fact that most were done maliciously and it is no offense to say impeachment process by the legislature has become a purely political tool in the hands of political parties and politicians to remove an executive from office who is from another political party and not a loyalist to them.

It has been the duty of the court not to interfere with any impeachment instituted by the legislature against the executive and a plethora of cases abound where courts have declined jurisdiction to entertain cases of impeachment notwithstanding the obvious disregard for the constitutional procedures employed in such process for instance, in Alhaji Abdulkadir Balarabe Musa V. Auta Hamza & Ors (1982). The federal court of appeal declined jurisdiction and did not make any pronouncement over allegations of violations of constitutional provisions by the House on the basis that “the moment the Legislature commenced removal proceeding under Section 170(2). The jurisdiction of the court was ouster by Section 170(10) of the 1979 Constitution.

Another interesting case of the same nature is the case of Murtala Nyako V. Adamawa State House Of Assembly & Ors (2016) LLJR-SC the court order issued during the impeachment of Murtala Nyako as the Governor of Adamawa state, that he be personally served with the impeachment notice as required by the constitution was not complied with. The House of Assembly not only refused to comply but its Speaker justified the refusal in his words “The issue of impeachment is the constitutional responsibility of the lawmakers and the House of Assembly will not allow the judiciary to intervene in it because there is no going back over the impeachment exercise which the court lacked the constitutional power to intervene”.

Also in Chief Enyi Abaribe v. The Speaker, Abia State House of Assembly (2000) Jelr 52602 (CA) The case in which the complaint was that the Deputy Governor was not afforded his fundamental rights of fair hearing since the impeachment process against him was voted upon by the House ” three days before the expiration of the time allowed the appellant to submit his reaction, the court felt uncomfortable with this unregulated power conferred on the legislature but affirmed the decision of the trial judge declining jurisdiction in the case.

The decision in the above cases has undoubtedly opened the floodgate for impeachment threats which tend to undermine the democratic process and the authority of the court, threaten the rule of law, and have also given rise to a plethora of unconstitutional impeachments.

These unconstitutional impeachments have continued and have been in existence for a long time. However, the prompt intervention of the courts on different occasions in which the courts have frowned and disagreed with the majority of the trial court’s decision in declining jurisdiction to entertain impeachment proceedings and now, have assumed jurisdiction to entertain and redress those malicious impeachments propelled by political rift and indifference, this could be seen in different popular decided cases.

In Inakoju v Adeleke (2007) 4 nwlr (pt 1025) 423, the appellants, contrary to the rules of Oyo State House of Assembly sat at a hotel in Ibadan where they purportedly suspended the house rules and issued a notice of allegation to the respondent, and a week later, a resolution calling for the investigation of the governor was passed without the constitutional requirement of two-thirds majority vote of the house leading to the impeachment of the Governor.

In an action challenging the constitutionality of the said removal, the Supreme Court held that where the constitution has made a specific provision as to any particular procedures, if there is a breach, the court will assume jurisdiction as the custodian of the constitution hence the said removal was void.
The court per Ogebe JCA further held that the High Court had jurisdiction to hear the matter and stated that;
 “For all I have said in this judgment I have no hesitation to say that the learned trial judge was wrong in declining jurisdiction. Indeed he had jurisdiction to examine the claim in the light of section 188 Subsection 1-9 of the 1999 Constitution and if he was not satisfied that the impeachment proceedings were instituted in compliance thereof, he had jurisdiction to intervene to ensure compliance with the pre-impeachment process that what happened thereafter was the internal affair of the House of Assembly and he would have no jurisdiction to intervene”.

Also in the case of Obi V. Inec (2007) CLR 7(D) (SC)  Where the state House of Assembly met in a hotel outside the state and issued an advertisement in some newspapers, with a notice of allegation to commence impeachment proceedings against the Governor, all attempts to halt the process through court orders were ignored, the removal was challenged on the ground of non-compliance with the provisions of the constitution, the Court of Appeal later voided the removal proceeding and ordered the reinstatement of the Governor.

Such were the manners of abuses and disregard for the due process by the legislature in the process of removing executive officers from office while the courts on many occasions have rectified and warned the legislature against further unconstitutional and arbitrary impeachment, this is in line with the wise dictum of Onnoghen in Dapialong V.  Dariye 8 NWLR (2007). Part 1036 
“It is true that Section 188(10) of the Constitution oust the jurisdiction of the courts in respect of the impeachment of a Governor or Deputy Governor but that must be subject to the rule that the legislature or the House of Assembly complied with all the constitutional requirement in Section 188 needed for the impeachment as the court have jurisdiction to determine whether the said constitutional requirement have been strictly complied with or not”.

The effect of the above dictum of the learned judge seems to be that where a court forms the opinion that the impeachment power of the legislature is exercised with total compliance with the stipulated constitutional procedures without being either maliciously or politically motivated then the constitutional ouster clause will take effect and the court will not have the power to interfere with such removal proceeding.

Conclusion and Recommendations

The adoption of the impeachment process in the system of government reflects Nigeria’s commitment to democratic governance and the rule of law and has been in operation and occasionally invoked when the need arises.

Impeachment could be said to be one of the best methods of punishing and holding the erring executive accountable for their misconduct by the legislature if done with the constitutional requirement contained in the constitution as it is also necessary for the legislature while conducting the impeachment process against any executive to be transparent and reasonably exercise such power as any accusations that will warrant impeachment must be onerous, grave or gross that is glaringly noticeable or conduct in breach or violation of the constitution as succinctly defined in section 188(11).

It ridicules and diminishes the integrity of the legislature being one of the most crucial arms of the government to become an instrument for any political party to punish other political opposition through the use of malicious and unconstitutional impeachment proceedings by the legislature.

In other to avert the recurrence of unconstitutional impeachment, offenses that will warrant impeachment must be such certain serious crimes in nature as encapsulated in Section 188(11) and should be grounded with credible evidence and a thorough investigation rather than mere speculation or being political motivations.

The process would however be more respected when it is done with proper adherence to the constitutional requirements and established procedures.

Any impeachment proceeding instituted against any executive must be transparent and the accused should be afforded his right to a fair hearing as well as the opportunity to present his defense thus by following these guidelines, the impeachment process can maintain its integrity and serve as a vital check on power, upholding the rule of law and accountability in governance.

Cases and References

Mojeed Olujinmi A. Law and the Politics of Impeachment in Nigeria: Interrogating the Basis of Judicial Control of a Political Process.

Mitong Dapal. The concept and procedures of impeachment.

Mojeed Alabi.A. Constitutional law note on the judicial control of impeachment power in Nigeria.

Abdullahi Sani. An examination of the role of courts in ensuring compliance with the constitutional requirements for impeachment in Nigeria.

Hon. Muyiwa Inakoju & 17 Others v Hon Abraham Adeolu Adeleke & 3 Others (S.C. 272/2006) [2007] NGSC 47 (11 January 2007).

Obi v Independent National Electoral Commission (INEC) and Others (SC 123/2007) [2007] NGSC 23 (12 July 2007).

Hon. Micheal Dapialong & Ors v Chief Joshua Dariye & Ors (2007) NWLR28.

Chief Enyi Abaribe v The Speaker, Abia State House of Assembly (2000) JELR 52602(CA).

Murtala Nyako v Adamawa State House of Assembly &Ors (2016)LLJR-SC.

Dapialong v Dariye 8 NWLR (2007). part 1036.

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