Where are the impeachable offences?

By

Olu Onagoruwa

IN 1994, as Attorney General I told members of the Constitutional Conference that whatever they did or did not do, they must incorporate into the constitution the principle of rotation of the presidency. The purpose of this suggestion was to bring stability into the Nigerian Political system. The suggestion was adopted with the other suggestions like the division of the country into geo-political centres to enable the rotations amongst them and to increase the revenue allocation. They were incorporated into the 1995 Constitution. This was due to the intellectual manoueverability of the Chairman of conference, Justice Karibi-Whyte and the sedate political wisdom of the former Vice-President Dr. Alex Ekwueme. Unfortunately that constitution was suppressed and the Abdulsalami Abubakar administration adopted the 1999 Constitution without these provisions except the 13 per cent of revenue distribution.

In 1999 political leaders, particularly of the North, who had hijacked the political leadership of the land to themselves for so long agreed to let the presidency to the Southerners particularly to the Yorubas. It was not a very healthy arrangement because it was not backed up by the constitution. The wisdom of 1995 constitution was discarded and the consequences are crystallising into the present ugly scenario. The first point is that the northern political leadership never believed in the agreement and because of their hesitation about it, they asked that Southern leaders must sign a secret agreement to recognise their entrenched position in Nigerian politics. Obasanjo said he did not sign it, Ekwueme said he did not but some signed. Nwobodo said he would sign any document any day. The legal import of this agreement cannot be discussed here. Whatever it was, it was a document which betrayed the chicanery and corruption at our political leadership level. It shows a scant regard for the constitution and it is a thorough betrayal.

Inspite of all that documentary ritual, the northern leadership is still not satisfied. They indulged in all forms of political acrobatics to upset the Obasanjo's government. They adopted the Sharia, a religion that is contrary to the constitution and endeavoured all other political stratagems to discomfit the government. Their ace card now is impeachment because Obasanjo has to go inspite of all the unconstitutional concessions granted to them by Obasanjo. Obasanjo has to go because they chose him in the first place. But what is the legal position of the impeachment and its prospects of success?

The Notice of allegations of gross misconduct contains thirty-two allegations. The notice includes breaches of Sections 80(4), 162(111) 2(2) and 313 of the 1999 constitution. This includes arbitrary amendment of the capital provisions of the 2002 Appropriation Act without National Assembly's approval through legislation. He also issued an executive order to constitute an amendment to the Revenue Allocation Act. The issuance of extra-budgetary expenses, for example spending N9.5 billion instead of N5.9 billion approved for the project was considered gross misconduct. Also the spending of N3 billion on 63 ministerial houses with furnishing without a budgetary approval for it in the year 2000 was gross misconduct. Various unlawful withdrawals from the Federation account without National Assembly legislation. In one occasion he withdrew N16 billion to purchase $40 million. Usurping of the powers of the National Assembly by withdrawing $185 million without authority of the National Assembly.

The president showed lack of transparency and accountability by not disclosing the exchange rate for the sum of N16 billion which brought in $40 million. That he refused or neglected to pay the 13 per cent revenue derivation to the benefiting states. That the president made N82 million available to Ghana for the use of their police. That he intentionally refused to pay the sum of $229 million into the federation account; that Obasanjo paid N362 million as legal fees to Akin Delano without appropriation by the National Assembly. This was from the loot account. Another payment from the loot recovery account was a legal fee payment, again to Akin Delano in sterling for the sum of almost £1.5 million.

There were other payments from the Federation Account without any legislative approvals from the National Assembly. The Nigerian Airline scandal was also listed. The Notice is a breathtaking catalogue of government expenditure that was done without transparency and accountability. How can a government spend money from the federation account without legislate approval of the National Assembly? The Notice contains an unbelievable negligence in the spending of government money, particularly in an age when Babangida and Abacha have shown how profligate one in authority can fritter away government money for idiotically selfish purpose?

But our purpose in this article is to discover whether these allegations contained in the Notice amount to impeachable offences? What really constitutes an impeachable offence? Section 143 of the 1999 constitution talks of the "Removal of President from office". Under this section various procedural steps must be followed. It says whenever a Notice of any allegation in writing, signed by not less than one-third of members of the National Assembly is presented to the President of the Senate stating that the holder of the office of President or his vice is guilty of gross misconduct in the performance of the function of his office, details of which must be specified, the President of the Senate shall on receipt of the notice cause copies to be served on the holder of the office and each member of the National Assembly within seven days. He will also cause the reply of the President to be served on members of the Assembly.

Within 14 days of the presentation of the Notice each House shall resolve by motion (without debates) whether or not the investigation of the allegations shall be investigated. The National Assembly shall so resolve by a motion supported by two-thirds majority of each House of the National Assembly. Within seven days the Chief Justice of Nigerian on request from the President of the Senate, shall unquestionable integrity to investigate the allegations. The President shall be entitled to representation by lawyers of his choice before the panel. The procedure to be followed by this panel shall be as prescribed by the National Assembly.

Within three months the panel shall report its findings to each House of the National Assembly. If the panel finds the allegation proved the National Assembly shall by two-thirds majority, within 14 days of the receipt of the report, pass a resolution by each House of not less than two-thirds majority, asking that the report of the panel be adopted. Once adopted the President is removed from office immediately. It should be stated that "no proceedings or determination of the panel or of the National Assembly or any matter relating thereto" shall be entertained or questioned in any court. Apparently this provision removes all deliberations of the panel and of the National Assembly from the realm of judicial interruption. The culprit Head of State cannot seek legal remedies. The only option is to have a strong legal representation before the panel because he is not entitled to one before the National Assembly. The question must then be asked: What are his chances before the panel? In the Notice before the panel the President is accused of gross misconduct. In subsection 11 of section 143 of the 1999 constitution, gross misconduct is defined as "a grave violation or breach of the provisions" of the constitution or a conduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.

This means that the body which investigates the allegations is not a judicial organ and can therefore return a verdict based purely on its own understanding of the allegations in the light of defences supplied by the President. The panel constitutes a type of jury in the impeachment process. They will apply their own view of what amounts to "gross misconduct" to the adjudication or determination of what the allegations mean and regardless of whatever opinion the National Assembly holds of the allegations. Therefore the body which tries the allegations (Constitution says "investigates" the allegation) is not the National Assembly itself but an almost surreptitious panel whose most prominent value, if properly selected would be its neutrality.

Let us look at the US constitution from which we copied impeachment as an instrument of punishment against aberrant political executives. In the American political system the impeachment is recommended by the House of Representatives to the Senate, which tries the impeachment with the Chief Justice of the United States presiding over the trial. Our own constitution has removed all the noisome pestilences that may come from the National Assembly, from the trial of impeachment. A case that looks so much like the Obasanjo case both in its emotional intensity, its lack of legal contour and political decorum is that of the trial of President Andrew Johnson of the United States. He was the Vice President to Abraham Lincoln. After the civil war he supported a peaceful reconciliation with the Southern States. It was a period of great political ebullition when peace was difficult. It was more compounded by others who felt the south should be made to realise their folly. They regarded President Johnson as a dangerous appeaser, almost a traitor. He supported states rights and tried to maintain equilibrium. Johnson also had his own faults, which fuelled the situation. He removed the Secretary of war who had sided against him; this led to war with the Republicans who had brought him to power. They brought a bill of impeachment against him as he continued his opposition to the fourteenth Amendment of the constitution.

He was accused of "fostering disaffection and discontent throughout the lately revolted states" i.e. the southern states. Congress decided that the Secretary for the department of war must be responsible to Congress instead of to the President. But the American Supreme Court stated that the "Secretary of war is the regular constitutional organ of the President for the administration of the military establishment of the nation": The United States Vs. Eliason (1842). As a dispassionate writer observed "It was high tragedy that by accident of history a man whose will ran counter to that of the party which had elected him and ultimately to that of the great majority in the North became President at a time of tremendous national crisis". President Andrew Johnson had to be removed from office. The tone of the crisis was set by Benjamin Butler who declared that "The Senate does not sit as a court and has none of the attributes of a judicial court". He told the Senate "you are bound by no law; you are a law unto yourselves". One Senator, Ebon C. Ingersoll prophesied "I shall for one be disappointed if within ten days from this time, honest Ben Wade is not President of the United States". It would be clear that the Senators who were to preside as a court have already found President Johnson guilty and have chosen Ben Wade the protem President of the Senate as a President after the disposal of Johnson. However Johnson also had supporters who rallied round him. For example a Mr. Morison who described the impeachment as "one of the most disgraceful episodes in our history. No valid ground legal or otherwise existed for the impeachment".

One Mackitrick viewed it as "a great act of ill-directed passion". In the trial the lawyer for President Johnson, William Groesheck addressed the Senate as follows: "He was eager for pacification. He thought that the war was ended. The drums were all silent; the arsenals were all shut; the roar of the cannon had died away to the last reverberations; the armies were disbanded; not a single enemy confronted us in the field. Ah, he was too eager, too forgiving, too kind. The hand of conciliation was stretched out to him and he took it. It may be he should have put it away, but was it a crime to take it? Kindness, forgiveness a crime? Kindness is omnipotent for good, more powerful than gunpowder or cannon, kindness is statesmanship, kindness is the high statesmanship of heaven itself". The President, Andrew Johnson, was acquitted by one vote. It was a very acrimonious and unrefined political affair. But the American stepped down the combustible fervour of impeachment and thereafter only used it for more evidently useful purpose in their political history. The recent impeachment of President Clinton demonstrates how civilised from Johnson's time the Americans have become. The Obasanjo impeachment approximates very closely to the Johnson's impeachment. Like Johnson, Obasanjo is a Southerner; the political anger against the President, like that of Johnson is primarily from the North. The issues were almost the same only to the extent that like the American congress the National Assembly wants to assert a superior power over that of the President.

Of course Obasanjo is going to face a less boisterous organ of State the panel, to be chosen by the Chief Justice of the Federation of Nigeria. The character of those chosen into the panel would go a long way to determine the outcome of the impeachment Section 143(5) of the constitution 1999 says people to be appointed by the Chief Justice must be of unquestionable character "not being members of any public service, Legislative House or political party". This of course means that the Chief Justice could appoint journalists, sociologist, psychologists, engineers, ecclesiastics, scientists or any other intelligent groups into the panel. They would have proper understanding of good governance, the constitution and the party system by which the country is governed. It would be asked to determine whether the frantic withdrawals of money from the federation account without legislative approval and none payment of money into the federation account were a "gross misconduct or a mere constitutional aberration which cannot or should not provide a ground for his removal as President. They are to act as a jury in adjudicating on all issues raised in the Notice in the light of legal argument to be presented by the lawyers of the President. Perhaps more particularly the panel would have to decide whether there are no other political or constitutional remedies that could be asserted against the President aside from impeachment. The panel would have to consider the effect of a removal on the constitutional equilibrium and constitutional order of the country. Other factors which may influence the panel are the economy, international reactions to the removal of the President and the general reactions of future investors who would decide whether Nigeria has enough political stability to protect their investments. These are the elusive intangibles of the impeachment.

Nov 2002