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Procedure for Impeachment in Nigeria (3)

Procedure for Impeachment in Nigeria (3)

Panel of Seven Members

Section 143(5)[1] provides that within seven days of the passing of a motion under the foregoing provisions, the Chief Justice of Nigeria shall at the request of the President of the Senate appoint a panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service legislative house or political party, to investigate the allegation as provided in this section.

Similar provisions are made under section 188(5) in respect of House of Assembly of a State in the course of carrying out impeachment proceedings against the Governor or Deputy Governor.

The subsection only talks about the integrity of the persons. It does not talk about the professional callings, age, gender and all that of the seven persons.

Read also: Procedure for Impeachment in Nigeria (2)

However there has been a compelling suggestion that the panel be headed by a retired Judge or a senior lawyer preferably a Senior Advocate of Nigeria in view of the fact that the exercise of investigation under the Constitution will invariably touch law in its large parts.[2] A member can be picked and appointed from within or outside a State. As a matter of law the search for the seven-man Panel could go to the Diaspora particularly Nigerians in Diaspora by virtue of chapter 3 of the 1999 Constitution.[3]

In his leading judgment in the case of Inakoju & Ors v Adeleke & Ors,[4] Justice Niki Tobi while expounding the qualities of the Panel of seven members held inter alia as follows:

…The 7 persons must in the opinion of the Chief Judge, be persons of unquestionable integrity. Integrity is a matter of character of the human being and the character must be unblemished, consistent in doing wrong or bad things. The character must be transparent, honest and trustworthy… He should be a person without taint. A person who believes in vengeance or vendetta is not one of unquestionable character. An overzealous human being with superlatives or extremities or idealisms will not be a person of unquestionable integrity because some of his superlatives or extremities or idealisms may turn out to be utopian and will be a bad way of judging a Governor in a realistic way in the running of a State. So too a person with pompous and arrogant bones in his chemistry with so much egotic flare. The Chief Judge should avoid them in his Panel as if they are plagues. Pompous and arrogant people are not the best Judges.

In the case of Alamieyeseigha v Igoniwari (2)[5] where the Bayelsa State House of Assembly took up an impeachment process against Governor D.S.P. Alamieyeseigha for gross misconduct in the performance of his functions, the appellant, Alamieyeseigha, argued that the provision relating to composition of panel of seven persons was not complied with because the Chief Judge appointed two persons who were alleged to be Civil Servants and card-carrying member of a political party, the Peoples Democratic Party (PDP). The Governor had earlier written a protest letter to the Chief Judge alleging likelihood of bias against the chairman and some other members of the Panel, but all to no avail.

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In nullifying the decision of the High Court which held that the action of the Chief Judge in appointing the Panel of seven persons cannot be challenged in court, the Court of Appeal observed inter alia as follows:

…With due respect I do not agree with the learned trial judge the suggestion that whether the Chief Judge acts outside the provisions of section 188(5) of the 1999 Constitution his actions cannot be challenged. Section 188(10) cannot be used to oust the jurisdiction of the court if the actions of the Chief Judge contravenes the provisions of section 188(5)

The Court of Appeal cannot be more correct. By the provision of section 188(5), the legislature intended that the Chief Judge must comply with certain conditions or criteria while appointing members of the Panel.[6] Once the Panel is constituted, the Governor or Deputy Governor as the case may be has the right to defend himself before the Panel either by himself or through a counsel of his own choice.

The powers and functions to be exercised by the Panel will be determined in accordance with procedure set up by the House. The procedure should not be ad hoc but should apply to all investigations so as to avoid different standards in otherwise similar matters.[7] It should be noted that in conducting its investigation the Panel is enjoined to observe the principles of fair hearing enshrined in section 36(1) of the 1999 Constitution even though not specifically mentioned in section 188 or 143 of the Constitution.

The issue of fair hearing featured extensively in the case of Abubakar Danladi v. Nasiru Audu Dangiri & 6 Ors[8] wherein the Deputy Governor of Taraba State, the appellant herein challenged his purported impeachment up to the Supreme Court alleging among other issues that he was not given a fair hearing before the Panel of seven who investigated his allegation of gross misconduct in the performance of his function as Deputy Governor of Taraba State.

In this case the embattled Deputy Governor sued the Panel of seven members for not according him his right to fair hearing when the Panel refused his genuine application for adjournment. The Deputy Governor instituted his action by way of originating summons seeking to restrain the Panel from investigating him. It was the complaint of the appellant that in the course of the impeachment proceedings of the Panel, after the counsel to the House had closed their case, the appellant called a witness and later applied for a four day adjournment to enable him bring two additional witnesses before he closes his case.

The Panel turned down this harmless application which was made within the first week of the sitting of the Panel which constitutionally has three months to round off its sitting. Needless to say that the Panel closed the case of the appellant and went ahead to submit its edited report to the House which wasted no time in removing the helpless Deputy Governor, who in turn challenged his purported removal in court.

In criticizing the Panel for its unconstitutional acts in indicting the Deputy Governor, the Supreme Court[9] held inter alia as follows:

The impact of what happened in the Panel on the country’s impeachment jurisprudence is too alarming to contemplate. Here is a Panel that had three whole months to investigate the serious allegations of gross misconduct against the appellant, a Deputy Governor of the State. For no apparent reason for the indecent haste, the Panel completed its sitting and prepared and submitted its report to the Taraba State House of Assembly… a period of six days inclusive of the first and last dates… one has the inevitable but disturbing impression that the Panel composed of the respondents was a mere sham and that the removal of the appellant from office was a done deal as it were. In my view, the respondents in their purported investigation of the allegation made against the appellant, merely played out a script previously prepared and handed over to the Panel.

His Lordship concluded that the Court of Appeal ought to have resolved the issue of denial of fair hearing against the respondents (the Panel of seven members) and in favour of the appellant, the Deputy Governor of Taraba State. The Supreme Court ordered that the purported impeachment was null and void.

In his contributing judgment, W.S.N. Onnoghen, J.S.C. held inter alia as follows:

Here is a case where the Panel has three months within which to conduct and conclude its investigation of impeachable allegations against appellant but appellant requested for four days adjournment on health grounds and to enable two of his witnesses attend and testify on his behalf but the Panel refused the request, closed the case of appellant and prepared its report which was submitted to the Taraba State of Assembly the next day. The said House proceeded on the same day of receipt of the report to remove appellant from office. In all, the proceedings lasted a period of about six days out of the three months assigned. Why all the rush one may ask. The rush in this case has obviously resulted in a breach of the rights to fair hearing of appellant which in turn nullifies the proceedings of the Panel.[10]

In his own supporting judgment Rhodes-Vivour, J.S.C. put it in as follows:[11]

I agree with his Lordship that the proceedings of the investigating Panel is null and void because the appellant was denied fair hearing… the position of the law is long settled that once there is denial of fair hearing, that in effect is a breach of the audi alteram partem principle of the rules of natural justice that is to say please hear the other side.

It can therefore safely be said that the principle of fair hearing is very fundamental to all courts proceedings (including Panels and tribunals) and like jurisdiction, the absence of it vitiates the proceedings no matter how well conducted.[12]

One issue that needs to be addressed is whether the Chief Judge can be compelled by the legislature to change members of the Panel who in their opinion are likely to show elements of bias towards the Governor or Deputy Governor. This was the case in Ekiti State when Fayose was removed by way of impeachment together with his Deputy.

It was alleged that the seven-man Panel was packed with family relations and cronies of Ayodele Fayose prompting the Ekiti State House of Assembly to reject the Panel and ordered the Chief Judge to reconstitute another Panel to which the Chief Judge refused giving the excuse that as a judge with limited contacts with ordinary “folks”, he was not expected to know everybody’s background. The Chief Judge maintained his ground even after the Speaker of the House of Assembly bulldozed his way into the arena to object to the Panel’s composition.[13]

For his refusal to reconstitute the Panel the Chief Judge was suspended and another appointed as Acting Chief Judge who later appointed another Panel that eventually sat and impeached Ayodele Fayose and his Deputy.[14] The confusion that followed this constitutional crisis eventually led to the declaration of State of Emergency in Ekiti State.

A similar incident happened in Nasarawa State where impeachment proceedings were initiated by the Nasarawa State House of Assembly against Governor Al-Makura. At the juncture of setting up the Panel of seven by the Chief Judge, the House of Assembly kicked against the members who in their own belief would be biased in favour of the Governor whom the legislators wanted to impeach at all costs. But unlike what happened in Ekiti State, the legislators did not consider it worthwhile to suspend the Chief Judge when he failed to reconstitute the Panel.

The controversial Panel went ahead to sit and considered the allegations against the Governor. The House of Assembly failed to put up appearance at the hearing whereas the Governor showed up to defend himself. The Governor was present and was equally by a counsel, a Senior Advocate of Nigeria, Udechukwu, SAN.

In the absence of the complainants, the Nasarawa State House of Assembly, the Panel considered all the allegations and dismissed them one after the other. Thus, the impeachment plot against Tanko Al-Makura was nipped at the bud against all odds as a minority party then CPC in the midst of majority party PDP which was the ruling party in Nigeria.

 

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

[2] Ibid         

[3] Inakoju v Adeleke (Supra) at p. 50 per Niki Tobi, J.S.C

[4] Ibid

[5] [2007] NWLR p. 524

[6] A.M Madaki, “An Examination of the Jurisdiction of Courts to Determine Impeachment Proceedings under the 1999 Constitution of Nigeria” In: Agom A. et al (eds) Ogebe & The Law, (Zaria: Tamaza Publishing Co., 2010) pp. 149-150

[7] Inakoju v Adeleke (Supra) per Tobi, J.S.C. p. 62

[8] [2014] 11 S.C.N.J. 155

[9] Ibid at p. 199 per Ngwuta, J.S.C. who read the leading judgment of the court

[10] Ibid at p. 201

[11] Ibid at p. 207

[12] Ibid at p. 227

[13] S. Oguche “Challenges of Use of State of Emergency In Democratic Governance: Plateau and Ekiti Experiences” In:E  Azinge. (ed.) State of Emergency In Nigeria, Law and Politics (Lagos: NIALS, 2013) p. 353

[14] The Supreme Court has held in the recent case of APC v PDP & 4 Others [2015] 4 SCNJ 1 that the Constitution of the 2nd Panel was null and void and that Fayose was never impeached in the eye of the law

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