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Overview of Procedure for Impeachment in Nigeria

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Overview of Procedure for Impeachment in Nigeria

 

The overview of the procedure for impeachment proceedings in Nigeria is provided for in the Constitution itself. Section 143[1] gives powers to the National Assembly to remove the President or Vice President from office in line with laid down procedures. Similar provisions are laid down for the removal of the Governor or Deputy Governor by a State House of Assembly under Section 188.[2]

In discussing this sub-topic, much emphasis will be laid on the provisions of section 188 of the Constitution which provides for the procedure for removal of the Governor or the Deputy Governor. The reason for this is not far-fetched. In the history of impeachment process in Nigeria the section relating to the removal of President or Vice President has never been put to test. In other words, no President or Vice President has ever been impeached.

The only attempt made in this regard was when the then President, Olusegun Obasanjo attempted to remove his Vice President Atiku Abubakar by way of “Judicial impeachment” and which the Supreme Court in agreeing with the lower courts held in favour of the Vice President that it is only the National Assembly that can carry out the act of impeachment against the Vice President and not the court or any other institution[3].

Due to the significance of the provisions of section 188 of the Constitution, it will be very pertinent to rely extensively on the relevant portions of judgment of Niki Tobi JSC in the case of Inakoju & Others v Adeleke & Ors,[4] wherein his Lordship x-rayed the provisions of section 188(1)-(11) which deals with removal of the Governor and Deputy Governor of a State by way of impeachment. His Lordship in the course of the judgment dissected the provisions of section 188(1)-(11) of the 1999 Constitution (as amended).

Subsection (1)… A removal of a Governor or Deputy Governor must comply with subsections (2) to (9) by the subsection.

Subsection (2)

(i) There must be a notice of allegations in writing signed by not less than one-third of the members of the House of Assembly…

(ii) The notice must be presented to the Speaker of the House.

(iii) The notice should state that the Governor or Deputy Governor is guilty of gross misconduct in the performance of the functions of his office.

  • The notice must specify detailed particulars of the gross misconduct…
  • Within a period of 7 days from the date of receipt of the notice, the Speaker will cause a copy of the notice to be served on the Governor or the Deputy Governor as the case may be.
  • The same notice as in (v) must be served on each member of the House.

(vii) By subsection (2)(b) the Speaker is expected to procure a written statement from the Governor or the Deputy Governor in reply to the 47 notice of allegation provided for in subsection (2). The reply must also be served on each member of the House. …If the Governor or the Deputy Governor fails or refuses to reply to the allegation, he should be presumed as having no reply.

Subsection (3)

  1. Within a period of 14 days of the presentation of the notice to the Speaker of the House, the House must resolve by motion without any debate whether or not the allegation should be investigated.
  2. The action in (i) above will be taken whether or not the Governor or Deputy Governor sent any statement in reply to the notice of allegation.

…the motion that the allegation should be investigated or not will not be debated… there should be no room for campaign on the floor to sway members at that early stage.

Subsection (4)

  • A motion that the House investigates the allegation will be declared as passed if it is supported by the votes of not less than two-thirds of all members of the House.

Subsection (5)

Within 7 days of the passing of the motion under subsection (4), the Chief Judge of the State will appoint a Panel of seven persons to investigate the allegation.

  • The Chief Judge can only set up the panel at the request of the Speaker. It therefore means that … the Chief Judge cannot do so by the request of any other member or suo motu.
  • The Panel must not exceed 7 persons. It must also be not less than 7 persons…

The seven persons must not be members of any public service, legislative house or political party. The subsection disqualifies members of the public service, legislative house or political party…

  • The 7 persons must in the opinion of the Chief Judge, be persons of unquestionable integrity…

… the Chief Judge can only invoke his constitutional powers under section 188(5) if the provisions of section 188(2), (3) and (4) are complied with … he should bow to the 7 days rule in section 188(5). This does not mean that the Chief Judge must wait for 7 days to set up the Panel. The requirement of the subsection is that the Panel must be set up within 7 days. Subsection (6)

  • The Governor or the Deputy Governor as the case may be has the right to defend himself before the Panel.
  • He also has the right to be represented before the Panel by a legal practitioner of his own choice.

Subsection (7)

  • The powers and functions to be exercised by the panel will be determined in accordance with the procedure as prescribed by the House. The procedure prescribed should not be ad hoc but should apply to all investigations. This is one way of avoiding different standards in otherwise similar matters. Of course, the House can revise or update the procedure as and when circumstances dictate. The House should avoid changing the rules at the middle of the investigation to assist or ruin the Governor or the Deputy Governor.
  • Within three months of its appointment, the Panel should report its findings to the House. The constitutional period should not be extended… it is a constitutional provision which the Panel must comply with…
  • The report of the Panel should be precise, concise and exact to the minutest details. There should be no room for doubt as to what the Panel decided. The report of the Panel should be unequivocal and not fluid or rigmarole.

Subsection (8)

  • The Panel can make one of two recommendations, not two. The Panel can either report that the allegation made against the Governor or Deputy Governor is proved or if not proved.
  • If the report is that the allegation is not proved, the matter ends there. The House has no constitutional right to set up another Panel to receive more “favourable” report. That will be tantamount to persecution of the Governor or Deputy Governor and the Constitution has no place for a second bite at the cherry. The House becomes Functus Officio.
  • It is however not my understanding of subsection (8) that no removal proceedings will be initiated against the Governor or Deputy Governor for the rest of his tenure qua office. The House is competent to initiate other removal proceedings, if the Governor or Deputy Governor commits any other gross misconduct within the meaning of subsection (11).

Subsection (9)

  • If the report of the Panel says that the allegation against the Governor or Deputy Governor is proved, the report will be considered by the House within 14 days of the receipt of the report by the House.
  • In debating the report there should be no consideration of political party and political leanings. …Let the debate and subsequent findings of the House be dominated by the report of the Panel and not by sentiment.
  • The House can take one of two actions. It can adopt the report of the Panel. It can reject the report of the Panel. If it rejects the report of 52 the Panel, the matter ends there. The Governor or Deputy Governor can smile home as a victor.
  • If the House adopts the report of the Panel, the Governor or Deputy Governor stands removed from office as from the date of the adoption of the report. He has to pick his personal belongings from Government House before the police arrive to force him out…

His Lordship has no doubt not only laid down the procedure for embarking on impeachment of a Governor or Deputy Governor as enshrined in the 1999 Constitution, but has also expounded the law and principles surrounding impeachment proceedings in Nigeria, despite the fact that his Lordship refused to use the word impeachment in place of removal as enshrined in sections 143 and 188 respectively.[5] Unfortunately, these laid down procedures were observed only in breach of the relevant section by our legislators in most of the impeachment proceedings carried out in Nigeria. Needless to say that most of the cases were reversed by our courts[6] for failure to comply with the procedures laid down in section 188(2) – (9) of the Constitution of Nigeria, 1999.

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The impeachment panel has power only to find that the allegations against the Governor are proved or not proved. See Section 188(8) and (9) of the Constitution. The panel has no power to find the Governor guilty of the allegations of gross misconduct[7]

 

[1] Constitution of the Federal Republic of Nigeria, (as amended)

[2] Ibid

[3]  A-G Federation & 2 Ors v Alh  Atiku Abubakar & 3 Ors [2007] 4 SCNJ p. 456

[4]  Supra at pp. 48-54 of SCNJ Report

[5] Constitution of the Federal Republic of Nigeria,1999 (as amended)

[6] For instance Inakoju & Ors v Adeleke & Ors.,Supra  Mike Balonwu & Ors. v. Peter Obi [2007] 5 NWLR pt. 1028  p. 488; Dapianlong v Dariye [2007] 8 NWLR pt. 1036 p. 332 etc

[7] APC v PDP & Ors (2015) LPELR-24587 (SC)

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