Impeachment: A letter to Ghali NaAbba
By
UPON the expiration of the two-week ultimatum, the House compiled and levelled 17 impeachable offences against the President. The allegations were presented to Nigerians through a world press conference addressed by the leadership of the House. Thereafter, the 17-count charge was submitted to the caucus of the Peoples Democratic Party. On his own part, President Obasanjo has given a comprehensive reply to the charges sriatim.
Since the constitution has made elaborate provisions for the impeachment of the President I hasten to dissociate myself from the preposterous proposition that the Honourable members of the House of Representatives are determined to derail or scuttle the nascent democratic process by attempting to remove President Obasanjo from office before the end of his four-year term. I therefore advise you to disregard the empty boasts of those who are threatening to break up the country if the President is impeached through due process.
Be that as it may it is highly regrettable to note that you and your colleagues in the House have engaged in violent violations of the constitution with respect to all the steps taken so far in the on-going moves to impeach the President. By virtue of Section 143 of the Constitution the President of Nigeria can only be impeached or removed from the office upon the fulfilment of the following conditions:
Mr. Speaker, you will agree with me, that the passing of a resolution calling on the President to resign when the steps outlined supra have not been taken, is illegal and unconstitutional. Similarly, the submission of the purported Notice of impeachment to the caucus of the Peoples Democratic Party by the House is also illegal and unconstitutional. Furthermore, your usurpation of the constitutional functions of the Senate President and the Chief Justice in the on-going attempts to impeach the President is illegal and unconstitutional.
Accordingly, the reply of the President to the aforesaid allegations is also illegal and unconstitutional. As far as the constitution is concerned the President is required to react to a Notice of allegations forwarded to him by the Senate President and not by the Speaker of the House of Representatives. At this juncture you and your colleagues in the House may therefore wish to seek sound legal advice in order to save the nation from further embarrassment arising from the impeachment saga.
However, despite the illegalities that have characterised the said actions of the House and the Presidency it is germane to take a critical look at the recurring but diversionary bickering between the PDP-led Executive and the Legislature at the federal level. While the frustration of the House in the hands of an overbearing President is clearly understood it is high time that the National Assembly was made to understand the enormity of the powers conferred on the President of the Republic by Decree No. 24 of 1999 otherwise known as "the 1999 Constitution."
Without taking cognisance of such absolutist powers the House has accused President Obasanjo of amending the Revenue Allocation Act without any reference to the National Assembly. It is doubtful if your colleagues who drafted the impeachment charges have read the controversial judgment of the Supreme Court in the (Resource Control) case of Attorney-General of the Federation Vs. Attorney-General of Abia State & 35 Ors (2002) 16 WRN I. Otherwise they would have come across that aspect of the judgment where the Supreme Court (per Ogundare J.S.C.) said inter alia.
"Now, subsection (2) of Section 315 of the Constitution provides for modification of an existing law to bring it into conformity with the constitution. The subsection reads: The Appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this constitution."
The word "modification" is defined in subsection (4) of section 315a including: Addition, alteration, omission or repeal.
See Attorney-Genera, Ogun State Vs. Attorney-General of the Federation (1982) 1-2 S.C. 13. And the appropriate authority in respect of Cap. 16, a law of the federation, is the President. Thus, the President has constitutional power, by order, to modify Cap. 16 either by way of addition, alteration, omission or repeal, to bring it into conformity with the constitution. This he has not done. At least, our attention has not been drawn to any order made by the President modifying Cap. 16 to bring it into conformity with the 1999 Constitution."
With regard to the allegation that the President breached the constitution by stopping further payment of the 13 per cent derivations to states that produce natural resources the Supreme Court (per Uwais CJN) had this to say: "As has been seen earlier all the counter-claims are based on the premise that the provisions as to 13 per cent of the revenue from natural resources should, on principle of derivation under section 162(2), apply to the current system of allocation of revenue. This is a misconception and cannot be correct, because the National Assembly is yet to enact an Act that will take into account the provisions of subsection (2) of section 162 including the proviso thereto. In my view the provisions cannot apply to the Act, as it now stands, until it is modified by the President of the Federal Republic of Nigeria in accordance with the provision of section 315(2) and 4 of the Constitution. The President has not made any "modification" to the Act in question to bring it in conformity with the constitution. Therefore, all such claims in the counter-claims are misconceived and must fail and I hereby deem them all as failed."
Mr. Speaker, the aforesaid judgment of the Supreme Court was handed down on April 5, 2002. For some inexplicable reasons, the Honourable members of the National Assembly simply went to sleep while the Presidency was reportedly taking steps to tinker with the Revenue Allocation Act. But as soon as an Executive Order was signed by the President modifying Cap. 16 "to bring it into conformity with the 1999 Constitution" the House of Representatives woke up from its deep slumber to realise that an impeachable offence has been committed. In a more matured approach the 36 state governors have resolved to challenge the validity of the extra seven per cent statutory allocation to the Federal
Government through the Executive Order.
You have a duty to impress it on your colleagues that a President can neither be impeached for complying with the decision of the highest court in the land nor removed from office for exercising his powers under the constitution. The President can however be challenged in court if there is evidence that he has acted ultra vires or mala fide. Alternatively, the National Assembly can exercise its legislative powers under section 4 of the same constitution by repealing in toto the Revenue Allocation Act as amended by the Executive Order.
As you are no doubt aware, this is not the first time that the President has invoked the provision of section 315 of the constitution to repeal an existing law. Have you forgotten that the Petroleum Trust Fund Act was repealed by a presidential fiat a few months after the inauguration of the current political disposition in 1999? Those of us who criticised such exercise of legislative powers by the President were ignored by the Honourable members of the National Assembly.
Unfortunately, the Honourable members of the House now seem to believe that every conceivable act of constitutional violation by the President constitutes an impeachable offence. Otherwise how does the appointment of the former Inspector-General of Police, Musiliu Smith, without reference to the Police Council become an impeachable offence? Shouldn't that appointment have been challenged in court while Mr. Smith was still in office?
Notwithstanding the defence adduced by the Presidency I am compelled to state, with profound respect that some of the allegations border on hypocrisy and ignorance on the part of the House of Representatives. For instance, the genocidal attack unleashed on the Odi community in Bayelsa State by a detachment of Nigerian troops occurred in November 1999 while the violent invasion of Zaki Biam in Benue State took place shortly thereafter. The House of Representatives never deemed it fit, at the material time, to pass any resolution condemning these barbaric incidents. Now, they have suddenly become "impeachable offences" because the President never sought the approval of the National Assembly to deploy troops to attack unarmed Nigerians. In other words, it is not the attack that is impeachable but the deployment of troops without the permission of the distinguished members of the National Assembly!
Mr. Speaker, you may wish to inform your colleagues that the aggrieved people of Odi have, with the assistance of the human rights community, challenged the constitutionality of the military invasion and demanded for payment of exemplary damages to all the victims. The suit is pending at the Federal High Court holden at Port Harcourt. And following the public outrage against the Zaki Biam expedition a Judicial Commission of Inquiry is currently investigating the matter.
The most painful aspect of the unwarranted face-off at Abuja is that we have gone through this phase before. In the failed Second Republic virtually all infractions of the constitution by the President were challenged in court. For example, the appointment of the chairman of the Federal electoral Commission, the passing of the 1982 Revenue Allocation Act, the deportation of Alhaji Shugaba Dorman Abduraheem, the appointment of presidential liaison officers etc which were considered unconstitutional were taken up in court. Some of those cases were filed by your predecessors. When President Shehu Shagari issued the Constitution of the Federal Republic of Nigeria (Adaptation Order Act) Order 1981 in exercise of his powers under section 274 of the 1979 Constitution the Attorneys-General of Ogun, Bendel and Borno states tested the constitutional validity of the said order at the Supreme Court.
Notwithstanding the backward attitude of Nigerian courts to public interest litigation the late Prof. Ayodele Awojobi was particularly fond of filing cases in court to challenge what he considered the penchant of the Shagari regime to violate the constitution. It may interest you to know that the prosecution of public interest cases to check the excesses of the government has continued unabated. For example, I have had cause to sue the Federal Government in respect of some of the official policies that have belatedly become "impeachable offences." Two of such cases which are pending at the Federal High Court, Abuja, have to do with the illegal fixing of the exchange rate of the naira visavis other major currencies and the illegal increase in the prices of petroleum products announced on January 1, 2002 by an illegal body called the Petroleum Prices Regulatory Committee.
On the second case the Federal Government has filed a reply to the effect that the prices were actually fixed by the Minister of Petroleum Resources. And to my utter dismay the statutory instrument produced in court bore the imprimatur of Chief Olusegun Obasanjo as the Honourable Minister of Petroleum Resources. Although it has been impliedly conceded that the Petroleum Prices Regularlatory Committee has no power to fix and determine the prices of petroleum products in Nigeria I am now challenging the power of the President to appoint himself as minister without the confirmation of the Senate in accordance with section 147 of the constitution.
With respect to the allegations bordering on extra-budgetary expenditure by the Executive the defence put up by the Presidency calls for an urgent review of the increasing costs of maintaining and servicing the democratic government at all levels. It has become crystal clear that the democratic system cannot be sustained on the unrestrained discretion of the Executive to spend public funds that catch their fancy. The legacy of profligacy bequeathed to the civilian regime by former military dictators must give way to budgets that seriously address the crisis of grinding poverty in the midst of plenty.
The constitutional crisis in the land has, no doubt, been compounded by the fact that a constitution which has contempt for separation of powers and genuine federalism is being operated by a President that adopts authoritarian attitude to political matters that ought to be resolved democratically. The situation has not been helped by a National Assembly that has abdicated its primary responsibility of law-making to the Executive. Under the pretext of exercising oversight functions each House of the National Assembly has been too busy with the investigation of fraud and corruption in the various ministries and parastatals, examination leakage in the Law School, privatisation of government companies and corporations by the Bureau of Public Enterprises, breach of contracts including termination of appointment of staff by oil companies etc. In the process all the bills that have been passed into law since 1999 have emanated from the Executive.
Did it not occur to you, Mr. Speaker, that you were compromising the autonomy and integrity of the Legislature when the leadership of the National Assembly conspired with the Presidency to doctor the 2001 Electoral Act? What offence can be more impeachable than that? Curiously, the forgery of that Act is not one of the 17 impeachable offences allegedly committed by the President!
Mr. Speaker, you would recall that the Committee for the Defence of Human Rights (CDHR) invited you to a two-day conference on "Constitutionalism, Democracy and the Rule of Law" which held at Abuja in May 2000. Although you could not attend the programme some legislators including the Deputy Senate President, Senator Ibrahim Mantu, honoured our invitation. In a paper which I presented on that occasion I did observe that "these wide and arbitrary powers assigned to the President are not only subject to abuse but subversive of a Federal Republic. It can indeed be argued that what the 1999 Constitution has done is to confer all the dictatorial powers hitherto exercised by former military heads of state on the elected President of Nigeria. Urgent steps must therefore be taken to reduce the absolute powers of the 'Chief Executive' of the country."
Regrettably, my fears and those of other concerned citizens have been ignored by those of you in the National Assembly who have continued to kick against any suggestion that the 1999 Constitution be fundamentally reviewed via a Sovereign National Conference. Having regard to the fact that it is practically impossible to conclude the impeachment of the President before the forthcoming general elections that are due to take place early next year you and your colleagues in the House may wish to devote the reminder of your term to the urgent review of a constitution that was imposed on the country by the defunct military junta.
Finally, the 1999 Constitution which you and your colleagues swore to uphold and observe is a negation of the basic tenets of separation of powers. Instead of wasting valuable time on the ill-fated impeachment of the President you may find it more rewarding to impeach the constitution. You and your colleagues may therefore wish to join the campaign for the convocation of a Sovereign National Conference where the Nigerian people would have the opportunity to produce a popular, democratic and legitimate constitution that will clearly define and limit the powers of the Executive and other organs of government.
Sept 2002