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How not to remove a President By Curiously and arguably the most popular political and constitutional law concept in Nigeria Fourth Republic is impeachment. In the National Assembly at the centre and the state Assemblies at the periphery, from Lagos to Enugu, Benue to Borno etc, the operating word is impeachment . Yet, the word Impeachment cannot be found in any of the eight chapters and the three hundred and twenty sections of the 1999 Constitution of the Federal Republic of Nigeria. In other words, in creating the impeachment “fever” it may be argued that the pen of the Nigerian press is mightier than the word of the constitution.
Anyhow, it is perhaps an opportune time, having regard to the latest ultimatum to President Obasanjo to resign from office within two weeks from August 13, 2002 or face “impeachment” proceedings by the House of Representatives and the allegation of the Senate President, Anyim Pius Anyim during the Senate/Media interactive session also of August 13, 2002 that there was a plot to “impeach” him to make a clinical and forensic examination of the theory and practice of “impeachment” as a constitutional and political principle vis-a-vis the provision of the 1999 Constitution.
As indicated above; since our Fourth Republican Constitution does not use the word ‘impeachment,” what then is meant by impeachment, how and where does it originate from and which equivalent or alternative concept is contained in our constitution ?
According to Oxford 20th Century Dictionary of English Language, to impeach means to find fault with, to call to question (especially when a lower legislative house charges a high officer with grave offences before the upper house as judges )
However, by the 21st century edition of Collins Concise dictionary, the verb “impeach” is defined as, to bring a charge or accusation against; to accuse of a crime against the state; and, especially in USA-to charge (a public official) with an offence committed in office. Generally and in constitutional law jurisprudence, impeachment means a charge or allegation made against an elected officer of state usually a president, or governor as the case may be.
Comparative constitutional law reveals, according to Prof. Hood Phillips, that the first recorded case of impeachment occurred in 1376, when two British lords and four commoners were charged with removing the staple from Calais (the nearest French port to England-under British control between 1347-1558), lending the king money at usurious interest and buying crown debts for small sums and then paying themselves in full out of the treasury. In its migration, the concept and practice of impeachment was in 1787 included in the oldest surviving written constitution of the Western world, the constitution of USA.
It was from the American Constitution of 1787 that the 1979 Constitution of Nigeria borrowed the concept of impeachment as well as the Presidential system of government.
From the political point of view, impeachment process is a very grave and serious matter. The essence and implication of the impeachment proceedings wherever it is instituted is to immediately terminate the tenurial period of office of the affected officer of state. It is not about partisanship and petty politics but about punishment and dishonour-permanently banishing from political office someone who has done deep wrong to state or security.
In other words, the effect of successful impeachment proceedings is to invalidate or undo the electoral mandate given to the affected officer of the state by the electorate. Thus, the issue of impeachment involves enduring questions of constitutional law that apply to members of all the political parties in equal measure.
As indicated above under the 1979 as well as the 1999 Constitution of the Federal. Republic of Nigeria instead of impeachment as used in the USA constitution, removal was and is the term used by the framers and draftsmen. Removal is a dry, active and strict word easily understood and of immediate import than impeachment. However, the removal process under the Nigerian constitution is not as easy or simple as the word suggests. In fact, given the short coming contained and built into the process by the less definitive constitutional provisions on the matter, the level of political party discipline in Nigeria (where defection or apostasy has brazenly defiled all known rules of regularity, scruples and established principles), the poor and low level prescribed educational and intellectual standard for members of the National and State Assemblies, the outer clause that ensures that the entire process, rightly or wrongly, cannot be challenged in the court of law, and the potential level of tangible intellectual on material corruption in our society among others, the impeachment or removal process as contained in our constitution predisposes the Fourth Republic to the oscillation theory of instability.
Within two years of the introduction of the impeachment/removal process into Nigeria’s constitutionalism, the removal proceedings was invoked against Governor Balarabe Musa of Kaduna State by the National Party of Nigeria (NPN) dominated House of Assembly.
According to Prof. Ben Nwabueze in his book “Presidential Constitution of Nigeria”, 1982 page 144, assuming, for the purposes of argument, that the allegations levied against Governor Balarabe Musa by the Kaduna State House of Assembly were well founded, they were not of the gravity contemplated by the 1979 Constitution as justification for the impeachment of the governor of a state, hence the potential danger of abuse of the process.
The new Fourth Republic has witnessed the removal of Mr. Salisu Buhari erstwhile Speaker of the House of Representatives before the arrival of Alhaji Ghali Umar Na’Abba; Mr. Evan Enwerem and Dr. Chuba Okadigbo respectively as presidents of the Senate before the arrival of Anyim Pius Anyim all within the last three years. Quite apart from the rounds the “removal” fever has made amongst various houses of Assembly from Lagos to Borno, Benue to Bayelsa, Enugu to Edo states etc.
The question may now be asked if the removal of elected representatives of the people in the legislative arm of government have been rampant and easy, whether justifiable or not, why then the sudden hue and cry on the threatened attempt to remove the president and head of the executive arm of government of the Federal Republic of Nigeria?
Just as the President and Vice-President are the prime symbols of our national unity, so are the governors and deputy governor prime symbols of the unity of each of the thirty-six states of the Federation. The election of the president the vice-president is only political act that, Nigerians, as a unit, perform together as a nation just as the election of the governor and deputy governor is the only political act the people of each state of the Federation as a unit perform together. In the case of the president and the vice-president, the presidential election is certainly the political choice most closely attended by all of us. It is submitted that no other matter can be of higher political significance than our considering whether, in any given instance, this act of choice is to be undone and our chosen president dismissed from office in disgrace. The impeachment or removal process in the case of the president is indeed a drastic measure that must not be taken lightly, hence the upsurge of public opinion against the threat.
However, the framers of the 1999 Constitution envisaged the occasional necessity of this awful act and laid down a procedure and standard for its being taken.
The intention of this writer is to analyse the procedure and standards set up by the Constitution and raise some of the questions that must still be answered. As indicated above, the constitutional provisions for removal of the president and vice- president is substantially about the same for removal of the governor and deputy governor of a state. However, the constitutional import of the removal process may favourable be compared to a high risk major surgical operation in a hospital’s accident operating theatre, which must be gone into or undertaken only when the rightness of diagnosis and treatment is absolutely sure.
The entire process is entrusted by the constitution to the National Assembly or House of Assembly of a state and these bodies are duty bound to act on their own views of the law and facts, hopefully, as free as may be from partisan and narrow-minded political motives and pressures. In short, the removal process is intended as a remedy for tortuous or criminal acts committed by state officers.
Nevertheless, public opinion does build up and form itself as well as try to follow and understand what is going on-whether, in our environment. Such opinion will assume principled political neutrality as we hope these bodies constitutionally enjoined to undertake the process will be.
The process for the removal of the president or vice-president is contained in Section 143 whilst that of the governor of a state or his deputy is contained in Section 188 of the 1999 Constitution respectively. The provision for removal of the president of the Senate and the speaker of the House of Representatives that had been used successfully in the last three years is contained in Section 50 (2) (c) of the 1999 Constitution.
With regard to the threatened removal of the president, the procedure must be commenced by notice of any allegation in writing signed by not less than one-third of the members of the National Assembly. In our National Assembly of four hundred and sixty-nine members, what the constitutional prescription means for the allegation in writing is that it must be signed by at least one hundred and fifty seven members. The notice/allegation must state that the president as guilty of gross misconduct in the performance of his office, with details specified. In other words, the notice must contain distinct and specific allegations that are of such a nature that if proved would be sufficient to warrant a dismissal of the president from office. See M. Cleland’s case (1819) 74 C.J. 493. Meanwhile, gross misconduct means a grave/serious violation or breach of the provisions of the constitution or a misconduct of such a nature as amounts in the opinion of the National Assembly to gross misconduct. It is submitted with respect that gross misconduct means more than neglect to perform any duty imposed by law or voluntarily undertaken whether for reward or otherwise. In other words, the constitutional definition admits of gross-misconduct not only in matters concerning the office of the President but includes matters outside or unrelated to the functions of the President provided it is an infamous offence of such a nature as to render the person unfit to exercise the office which may amount legally to gross-misconduct though not committed in connection with the office/functions of the President see Richardson’s case (1758) 1 Burr. 517 C539. Having achieved these two requirements, the notice will then be presented to the President of the Senate who is the head of the National Assembly. It is submitted to the President of the Senate who is the head of the National Assembly. It is submitted that written notice of allegations is in the nature of a petition or article of charge to the Senate President.
Within seven days of receipt, the Senate President must ensure service of the written notice of allegation(s) on the President and each member of the Senate and House of Representatives, in addition to any statement made in reply to the allegation by the President, which must also be circulated among the members of the National Assembly. In other words, the President must make a reply to the Senate President to enable him circulate same within the seven days provision or not later than fourteen days from the date the Senate President received the notice of allegation(s).
Whether or not any statement was made by the President in reply to the allegations contained in the written notice, each house of the National Assembly (i.e. Senate and Reps) must within fourteen days of the presentation of the notice to the Senate President resolve by motion without any debate whether or not the allegation shall be investigated. The import of this stage of the procedure and the buffer of time provided is that reading, studying, consultations, discussions, debates, comments, and arguments for and against the contents of the notice of allegations will not be allowed on the floor of any of the two houses of National Assembly. At this stage, the President is by necessary inference given free reign and liberty to use his political party’s machinery and harness its membership strength in each house to lobby, canvass and argue against and possibly guillotine the resolution on investigation when it arrives in the floor of the National Assembly and thus kill the inchoate effort to remove him from office. However, it is to be assumed that if the facts alleged are sufficient the National Assembly may resolve to proceed to refer the matter for investigation.
If that constitutional and political buffers or leverage fail because the President finds himself in a hopeless minority or it is not used or the matter is very grave and the motion that the allegation be investigated is supported by the votes of not less than two-thirds majority of all the members of each house of the National Assembly the procedure then moves on. However, we move on certain issues needs to be clarified.
One, there is no gainsaying that political party discipline is not only at its incipient level but also Nigerian politicians of the Fourth Republic have made a virtue of defection and apostasy. In other words, members of the National Assembly are not immune to the susceptibilities of corrupt influences both inter and intra political parties or external undue influences.
President Obasanjo who has made a public declaration of an avowed interest, and statutory proclamation against corrupt practices cannot in the circumstance be seen to be engaged in horse-trading with a view to purchase his invincibility. Secondly, some members of the National Assembly are definitely friendly or definitely hostile to the President. In that case, the possibility of interest prejudice and bias looms large in this matter.
Thirdly, when the constitution says “two-third majority of all the members of each house of the National Assembly”, does all its members mean all the total capacity of the members notwithstanding any vacancy or vacancies? Only the votes of members present at the voting procedure alone? The answer to these questions are not easy because Section 143 (10) of the Constitution says, “No proceeding or determination of the panel or of the National Assembly or any matter relating thereto shall be entertained or questioned in any court”.
Attention is called to this aspect of the constitution because it is not crystal clear, in view of the recent antecedent of the members of the National Assembly on the Electoral Act 2001 and the Court of Appeal and Supreme Court recent decisions thereon, how many members of the National Assembly understand or appreciate the very heavy responsibility of determining finally some of the weightiest of constitutional questions as well as important and difficult question or procedure that may potentially arise in impeachment/removal proceedings?.
Anyhow, within seven days of passing of a motion that the allegation against the President be investigated, the Senate President must request the Chief Justice of Nigeria (CJN) to appoint a panel of seven persons who in the opinion of the CJN are of unquestionable integrity, who are not members of any party, to investigate the allegations in federal, legislative house or political party, to investigate the allegations in accordance with provision of Section 143 of the Constitution. The panel of seven, if you like, is a committee of inquiry into the allegations against the President.
Again this is also not an easy stage. Looking for the seven wise Nigerians with impeccable and unimpeachable moral principles and honesty, with all the exceptions as to members of the public serve and politicians, leaves quite few choices for the Hon. CJN. In the words of a respected and impressive newspaper columnist, this process was likened to searching for a pin in a haystack. Without the use of magnetic force, the process may take longer than necessary. The current integrity rating of Nigerians makes this stage of the procedure very agonising especially when the head given not more than a power of appointment.
The appointment of the panel of seven signals the commencement of the investigation of the allegation(s). The whole process of investigation is to wind down within three months of the appointment of the panel and the panel is constitutionally empowered to exercise its functions in accordance with such procedure as may be prescribed by the National Assembly. Definitely this stage will involve hearing or trial which must in accordance with Section 36 (3) be held in public.
Expectedly, the constitution gives the president whose conduct is impugned by the allegations and who is being investigated the right to defend himself in person in addition to representation before the panel by legal practitioner of his own choice. It has since 1966 been settled by the Supreme Court in the case of Awolowo vs Sarki & others (1966) NSCC Vol. 4 page 209 that in so far as the minister of the internal affairs may validly and constitutionally refuse entry to a non-Nigerian, therefore right to legal practitioner of his choice is necessarily restricted to those who have unrestricted and absolute right to enter and practice law in Nigeria. Further more, the impeachment process being a situation where each side will most probably call witnesses and introduce documentary evidence bearing on the allegation being investigated by the panel is a matter of law, constitutional law.
That been the case, lawyers must run the process just as doctors must run the hospital operation room. It is the most important of proceedings. Lawyers and advocates must take a side and present it with skills and vigour. No doubt procedural questions relating to hear say and admissibly of evidence must rise. If and when they do, who makes a ruling?
In the United States where we borrowed this process, we saw recently how the Chief Justice of the Supreme Court of US personally presided over and played a pivotal and leading role in the congressional hearings during the impeachment proceedings of former President Bill Clinton over the Monica Lewinsky saga. That scenario is not part of Nigerian Constitutional process.
In practice, given the makeup of our society and its predilection for mutual mistrust the provision for the appointment of a panel of seven who are not institutional representatives and their handling of this politically sensitive process is certainly in my view neither going to be free from controversy nor allowed to settle the matter finally if allowed to get to the panel stage.
As it were, the panel is authorised by law to make inquiries/investigation into the facts and the law receive evidence. After the evidence had gone in, arguments will follow and having regard to the principles of their appointment and constitution, the panelists must act without partisan or narrow political bias and proceed to judgment in their report. However, it is plausible to argue that the panel is a tribunal established by law within the context of Section 36 (1) of the constitution dealing with the fair hearing rule and that the president whose civil right and obligation is involved in the matter being investigated by the panel is entitled to fair hearing.
Therefore its (panel’s) independence and impartiality as opposed to its proceedings or determination may be challenged in the court of law! This possibility is hinged on the argument that the independence and impartiality of the panel is not a matter relating to its proceedings and determination as it relates to only appointment and constitution of members of the panel.
Having regard to the natural law foundation and fundamental right stature of the fair hearing rule, there is a clear possibility that appointment of any member of the panel of seven, who has substantial interest of such character that it will give rise to a real likelihood of bias (Kujore & other Vs Otunbanjo). (1974) 10sc 173 at 181 per Fatayi-Williams, JSC as he when was or who has formed an opinion on the issue in advance and will most likely approach the investigation with an open mind (Oyelade Vs. Araoye & Alt-Gen. Western Region (1968) NMLR 44 @ 46 669 per Lord Denning) or that the appointment of any member of the panel was in breach of natural justice in that his position is analogous to being the accuser as well as the judge (head of Fed. Mil. Govt Vs Nwachukwu ex. P .Umukoro (1976) NMLR 151 affirmed an appeal as fca/b/4/77-unreported) or that any member of the panel made a statement to the press which might be evidence of bias and malice (Koguma Vs Governor of Kaduna State (1981) 2 NCLR 529 may be challenged successfully in the court of law.
Barring any of these possibilities which may clog or at least constrain the process, the panel will then turn its reports over to each house of the National Assembly that the allegation (s) has not been proved or that the allegations have been proved. Where the report of the panel is that the allegations have not been proved, no further proceedings shall be taken in respect of the matter. Likewise, each house of the National Assembly shall within fourteen days consider the report.
Again at this stage, the president has a second opportunity to lobby members of the National Assembly and harness his political party members to turn the event in this favour. Unless he finds himself and his political party in a hopeless minority, he has a good chance of succeeding. However, if the situation is otherwise and by a resolution of each house of National Assembly supported by votes of not less than two-thirds majority of all its members the report of the panel is adopted, then the president shall stand removed from office from the date of the adoption of the report. The votes of the members of the National Assembly as it were, are expected to be on the facts as well as on the law and the possible questions to be answered by the votes are (I) did the president do what he is charged in the allegation paper with having done? (ii) if he did, did that action constitute an impeachable offence within the meaning of gross misconduct in the constitution? As stated above, gross-misconduct must necessarily mean more than neglect to perform any statutory duty.
Furthermore, the success of the impeachment/removal process has implications beyond the person or office of the president alone. For instance all special advisers/assistants appointed to assist him in the performance of his functions are obliged by the constitution (Section 151 (1) and (3) to leave/cease when the president ceases to hold office.
Moreover, the secretary to the government of the Federation as well as officers on the personal staff of the president shall also leave when the president ceases to hold office. However, in the case of the secretary to the government of the Federation, he is constitutionally entitled to return to the public service from where he was appointed, federal or state, if he so desires (Section 171 (2) and (6) of 1999 Constitution)
In the whole gamut of the impeachment or removal process, the role and function of the National Assembly is neither legislative nor judicial and certainly not executive. It is sui generis or quasi-judicial. The trial is simply by resolution supported by the constitutionally prescribed majority of its members. Whether in so acting the members are objective or impartial or that there is possibility of prejudice and bias may not be challenged in a court of law because the constitution itself says no proceedings or determination of the National Assembly or any matter relating thereto shall be entertained or questioned in any court.
Thus, the constitutional design of the impeachment/removal process and its central structure of legitimacy prohibits all efforts, outside those mentioned above, to appeal the decision of the National Assembly Court of Removal whose findings of fact and law must stand as res judicata in all other tribunals or courts.
In other words, the constitutional and legal decisions. In this regard are to be made by senators and Representatives on behalf of the citizens, rather than by the judicial officers.
Sept 2002
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