THE LEGISLATIVE POWER OF IMPEACHMENT IN NIGERIA: A TOOL FOR DEMOCRATIC GOVERNMENT OR A TOOL FOR POLITICAL PUNISHMENT

 THE LEGISLATIVE POWER OF IMPEACHMENT IN NIGERIA: A TOOL FOR DEMOCRATIC GOVERNMENT OR A TOOL FOR POLITICAL PUNISHMENT

                                                            BY BAMIGBOLA, JIMOH M.[1]

INTRODUCTION

Impeachment is one of the issues of regular discussion in our polity today particularly as our democracy continues to grow.  Without regard to due process, many Governors and Deputy Governors were impeached. In spite of the ouster clause in the constitution, some of the victims successfully challenged their impeachments in courts. This paper examines impeachment proceedings against the backdrop of Sections 143 (1-11) and 188 (1-11) of the 1999 constitution with recommendations thereof.

HISTORY AND ORIGIN OF IMPEACHMENT

Professor Hood Philips reveals that the first recorded case of impeachment occurred in 1376 when two British Lords and four commoners were charged with removing the staple from calasis, lending the king money at usurious interest and buying crown debts for small sum and then paying themselves in full out of the treasury.[2] It might then be said that the concept of impeachment originated in England, although the concept is considered obsolete in the British constitutional history today.[3] Many of the American Colonial government and States adopted the impeachment concept in their Constitutions. The concept and practice of impeachment was in 1787 included the Constitution of United States of America.[4]

Historians have found antecedents for the practice of impeachment in the early Norman period, and even as far back as the ancient city of Greece.[5] In England, during the thirteenth and fourteenth centuries, several incidents occurred which involved the removal of royal officers by the king with the consent of parliament. Such events served as precedents which parliament, especially the House of Commons use to justify later impeachments.[6] Meanwhile, some consensus exist that these were not impeachment in a modern context.[7] Historians have, instead, identified the 1376 impeachment of Richard Lyons, a London Merchant, and Lord William Latimer, a peer of the realm, as the first modern impeachment.[8] Their justification for this relates to specific structural relationship between branches of government and within the legislative branch, which originated in this impeachment and which became the foundation of the modern institution. The history of impeachment continues as each country of the world adopts new procedures of impeachment.

MEANING OF IMPEACHMENT AND IMPEACHABLE OFFENCES

The term impeachment literally means “to question a person, to try (a public official) on a charge of wrongdoing.”[9] Hood Philips defines impeachment as a judicial proceeding against any person, whether Lord or commoner, accused of State offence beyond the reach of the Law, or which no other authority in the State would prosecute. The commons were accusers, and the Lords were judges both of fact and Law.[10] According to Black’s Law Dictionary[11], impeachment is a criminal proceeding against a public officer before a quasi political court, instituted by a written accusation called "article of impeachment”. The word "impeachment" has no precise definition but all proffered definitions agree that it is a legislative weapon that is being used to find fault or call the executive to question. The process is adversarial in nature and somehow resembles a judicial trial.[12]

Although Nigeria’s constitution does not use the term “impeachment”, I am of the humble view that the procedure of “removal” laid down under Sections 143 and 188 of the constitution conceptually has the purport of impeachment as it is understood, especially taking into account other provisions of the constitution. .

Section 146 of the Constitution provides thus:

“The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 of this Constitution.”

From that section it is obvious that the word “impeachment” as used is referring to removal under section 143 of the Constitution, while the phrase permanent incapacity is referring to removal under section 144 of the constitution.

The definition of impeachment may not be of much significance as much as the nature of offences that may bring about impeachment. This therefore leads us to the question of what constitutes  an impeachable offence.

The 1999 Constitution of Federal Republic of Nigeria provides that impeachable offences are "gross misconducts". The Constitution further defined gross misconduct to mean grave violation or breach of the provisions of the Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly or State House of Assembly to gross misconduct.[13] This definition leaves much to be desired. This is because the legislature is given wide and blanket power of discretion to determine what a gross misconduct is.

This definition has been regarded as being rather ambiguous as to cover various offences ranging from civil or criminal to political offences or any other act as the legislature may deem fit to define as "gross misconduct.[14] In the same token, Jadeshola Akande writes that "gross misconduct" is susceptible to three different interpretations namely:

(i) any action which specifically violates or breaches the provision of the constitution.

(ii) any offence constituting criminal offences punishable under the criminal law of the land; and

(iii) any action which gets the disapprobation of the National Assembly or State House of Assembly whether or not it amounts to a violation of the constitution or a criminal offence.[15]

In INAKOJU V ADELEKE[16], the court held as follow:

“The word "gross" in section 188(11) of the 1999 Constitution means generally in the context atrocious, colossal, deplorable, disgusting, dreadful, enormous, gigantic, grave, heinous, outrageous, odious and shocking. All these words express some extreme negative conduct. Therefore a misconduct which is the opposite of the above cannot constitute gross misconduct. Whether a misconduct is gross or not will depend on the matter as exposed by the facts. It cannot be determined in vacuo but in relation to the facts of the case and the law policing the facts.”

The Supreme Court further held in this case[17] that whether 'gross misconduct' is sufficient to warrant the removal of the Governor is apparently a political question and what is tantamount to it is within the discretion of the legislature. In their legislative functions, including deciding whether a conduct amounts to an impeachable offence, the legislature is bound by the other provisions of the Constitution. The court stated that  the offending conduct must be at least breach of code of conduct contained in the Constitution it is not every conduct that the legislature deems impeachable that is impeachable as a matter of course.[18]

Also in NOSA AKINTOLA OKUNGBOWA & ORS V. GOVERNOR OF EDO STATE & ORS[19] it was held that

“the determination by the House of Assembly of whether an act amounts to misconduct should be objective and not be subjective because the legislature is bound by the provisions of the Constitution.”

Therefore it may be contended that a gross misconduct which is not a violation of the provision of the constitution is subjective.

AN APPRAISAL OF IMPEACHMENT CASES IN NIGERIA

There is a need to appraise impeachment cases in Nigeria as to whether the exercise of power of impeachment by legislative arm is, in most cases, for the purpose of ensuring democratic government or compliance with rule of law by the executive, or as a tool for political punishment. Some notable impeachment cases shall be analysed.

ADEGBENRO V. S.L. AKINTOLA & Sir ADESOJI ADEREMI[20]

THE FACT OF THE CASE

A political crisis developed within the Action Group, which was the party in control of the government of Western Nigeria. Following the crisis, the national executive of the party deposed Chief Akintola as deputy leader and asked him to resign his appointment as premier of Western Nigeria. On May 20, the premier advised the governor of Western Nigeria that in view of the political crisis which had developed in the region and of the rival claims of the two factions to a majority support of the electorate in the region His Excellency should exercise his powers under Section 31 of Part III of the Constitution of Western Nigeria to dissolve the legislative house of the region. The governor refused.

On the same day the Premier asked the Speaker, for the same reasons, to convene a meeting of the Western House of Assembly to consider and pass a motion for a vote of confidence in the government of Western Nigeria but the Speaker also refused. The following day, the Governor purported to exercise the powers vested in him by Section 33(10) of the Constitution of Western Nigeria set out in the Fourth Schedule to the Nigeria Constitution order-in-council 1960 and purported to remove Chief Akintola from his office as premier. The governor appointed the appellant as the premier of western region. Chief Akintola then challenged the power of the governor to remove him from office in the manner he did. The case went to the then Federal Supreme Court. The Federal Supreme Court used golden rule to interpret the ambiguous provision of S.33(10) of the 1963 Western Region Constitution and held in favour of Akintola. But on appeal to the Privy Council, the court used the literal rule to interpret provision of S.33(10) of the Western Region Constitution and held in favour of the appellant (Adegbenro). However it should be noted that the Western Region House of Assembly amended the provision of the said S.33(10)  retrospectively and therefore made the removal of Akintola ineffective.

 

BALARABE MUSA V. KADUNA STATE HOUSE OF ASSEMBLY[21]

THE FACT OF THE CASE

The appellant was elected the first civilian governor of Kaduna State during Nigeria’s second Republic. He emerged governor on the platform of the then Peoples’ Redemption Party (PRP), which was a minority party in the state House of Assembly. Barely one and half years in office, hewas confronted with impeachment threat by the National Party of Nigeria (NPN) - dominated lawmakers in the state.

Specifically, some members of the state legislature had leveled allegations of gross misconduct against him and they sought to investigate these accusations by constituting a seven-man committee.

The document prepared by the then state legislature was entitled:’’ Notice of Allegation of guilt of Alhaji Balarabe Musa regarding his gross misconduct in the performance of the functions of his office as the Governor of Kaduna State.’’

On May 7, 1981, the state legislature served Musa a copy of the notice and thereafter on May 31 of the same year, it resolved that the allegations be investigated by a committee of seven persons.

Few days after the Investigation Committee of the state House of Assembly invited the appellant to appear before its public sitting on June 10, 1981, Musa sought to enforce his fundamental rights under Section 170 (2) and (6) of 1979 Constitution .

The appellant approached the Kaduna State High Court and asked for an order prohibiting the state House of Assembly and its Investigating Committee from proceeding with the investigation of the allegation against him. The court refused the application.

Aggrieved by the court’s decision to turn down his application, Musa lodged a notice of appeal before the Court of Appeal, Kaduna division. The Court of Appeal also dismiss the appeal on the ground that the jurisdiction of the court has been ousted by S.170(10) of the 1979 Constitution.

ABARIBE V ABIA STATE HOUSE OF ASSEMBLY[22]

THE FACT OF THE CASE

The 1st respondent by a letter dated 28th January, 2000 notified the applicant of the pendency of impeachment notice against him attaching the said notice and requiring him in accordance with the Constitution to have his defence entered on or before the 11th of February,2000.
On Tuesday 8th February, 2000 being the 12th day of the presentation to the Speaker of the impeachment notice, without receiving the defence of the applicant, three days before his constitutionally allowed period of defence was to expire, the respondents took a vote to refer the impeachment notice for investigation in breach of section 188(3) and section 36 of the 1999 Constitution and Article 7 of the African Charter on Human and People’ Right.
The appellant applied to the High Court for the enforcement of his rights  under the Fundamental Rights (Enforcement Procedure) Rules. The trial court held that Section188 (10) does not permit proceedings brought under Section46 of the Constitution. The court held that the applicant's Fundamental Rights cannot be enforced without any encroachment into the process which caused the breach, which is the impeachment process, over which the court has no jurisdiction. The suit was dismissed. On appeal to the Court of Appeal, the court dismissed the Appeal and upheld the judgement of the High Court.

One notable thing about this case was the fact that the Supreme Court per Pat-Acholonu noted that the courts can entertain matters of impeachment if evidence is shown that there was a substantial non-compliance with the provisions of the constitution despite the provision of Section 188(10) of the constitution .[23]

INAKOJU V. ADELEKE[24]

THE FACTS OF THE CASE

The 3^rd respondent (Senator Rashidi Adewolu Ladoja) was the elected Governor of Oyo State. His four years term of office started in May 2003 and would end in May 2007. Towards the end of 2005, the members of the House became polarized as a result of some political disagreement among them. The 32 members of the House were divided into two factions.

The 18 appellants belonged to a faction while the 2 respondents and the remaining 12 members of the House were in the second faction. The 18 legislators were opposed to Senator

Ladoja while the remaining 14 were in support. On the 13th December 2005, the 18 legislators met at D’Rovans Hotel, Ring Road, Ibadan. They raised a notice of allegations of gross misconducts against the Governor. They did this without the involvement of the Speaker and his Deputy. The service of the notice on the Governor was done by the group through a newspaper advertisement. Thereafter, they went ahead and requested the Acting Chief Judge of Oyo State to set up a 7-man panel to investigate the allegations of gross misconduct against the Governor.

The Acting Chief Judge inaugurated a panel to investigate the alleged acts of gross misconduct. The Panel sat for two days and without taking oral evidence from anybody. It eventually submitted its report to the 18 member faction in January 2006. The 18 member faction later passed a resolution by which they removed Senator Ladoja as the Governor.

The respondents as plaintiffs filed an action at the high Court of Oyo State by way of Originating Summons. They asked for six declaratory reliefs and three orders setting aside the steps taken by the appellants/defendants. The action was supported by a 17 paragraph affidavit.

In a preliminary objection, the appellant as applicants contended that the court lacked jurisdiction to entertain the suit and that the plaintiffs lacked locus standi. They also contended that the claims did not disclose a reasonable cause of action.

The learned trial Judge upheld the preliminary objection that he had no jurisdiction to deal with the matter. The Originating Summons was accordingly dismissed. 

On appeal to the Court of Appeal, it was held that the High Court had jurisdiction to hear the matter. The Court of Appeal invoked the powers conferred on the Court by section 16 of the Court of Appeal Act and took the merits of the matter before the High Court. It gave judgment to the respondentsand granted eight of the nine reliefs sought by the respondentsexcluding injunction. It should be pointed out that Senator Ladoja was joined as an interested party in the Court of Appeal.

Dissatisfied with the judgment of the Court of Appeal, the appellants appealed to the Supreme Court. The apex court dismissed the appeal and upheld the decision of the Court of Appeal to the effect that the trial court had jurisdiction to entertain the matter. 

At this juncture, I note with humility that the case under review is a landmark decision in Nigeria’s judicial history as far as impeachment is concerned. Both the Court of Appeal and the Supreme Court faulted the use of the constitutional Ouster clause in Section 188(10) as an engine of impunity. The two courts maintained that the court’s jurisdiction will be ousted only if subsections 1-9 of section 188 or 143 are complied with in the process of impeachment. However, where any of the nine sub-sections of Section 188 had been violated, a court has a duty to exercise its inherent powers to intervene.

APPRAISAL OF THE EXERCISE OF IMPEACHMENT POWER IN NIGERIA

In ABARIBE V ABIA STATE HOUSE OF ASSEMBLY[25] it was held that the primary object of impeachment is to improve the public service by removal of the officer and not to punish the officer or to safeguard his interest. The court also held further that the Legislature in impeachment proceedings exercises judicial, not the legislative power conferred on it by the Constitution. Consequently, the legislature ought to follow due process expected of any tribunal, body or authority performing judicial or quasi judicial functions. In impeachment proceeding therefore, the legislature ought to strictly adhere to the fair hearing provisions in the constitution.

Many of the impeachment proceedings have been upturned or criticized for lack of non compliance with constitutional provisions on the part of the Legislature. This shows that there is more to the exercise of impeachment power by the legislature. If truly the legislatures adhere to rule of law they need not be in a hurry during impeachment proceedings to the extent that they will now be guilty of breach of the constitution. The impeachment of Ladoja of Oyo State and Mr. Peter Obi[26] of Anambra State appeared to be for selfish, parochial and personal interest of the political class in the states. In the case of Ladoja, it was fueled by a section of politicians in Oyo state led by the Late Lamidi Adedibu. The scenario resembled a plan to get the governor out of office in order to have access to the state’s treasury. In the case of Obi, the impeachment seemed to be part of People Democratic Party (PDP) grand design to get the opposition out of power in the state in preparation for 2007 gubernatorial election. The thinking in the PDP then was that, with an opposition in power in the state, the emergence of PDP candidate – Andy Uba may prove difficult if not impossible. Hence, the need to remove Obi arose even if only through trump up charges.[27]

The recent impeachment of Muritala Nyako of Adamawa State raises a suspicion that the power of impeachment was used as a political punishment by the legislature. A lot of political issues surrounded the removal of the governor. Many political observers in the State opined that, trouble started for the Governor when he and his political structures defected to All Progressive Congress (APC).[28] Another political school of thought observed that another factor for Nyako’s impeachment was his letter to the northern governor forum indicting the president Jonathan’s administration of Genocide in northern states.[29] It was also argued that the removal of Enugu State deputy governor, Sunday Onyebuchi, was politically motivated.[30]

Also, the case of ALHAJI SANI ABUBAKAR DANLADI V. BARR. NASIRU AUDU DANGIRI & ORS[31] is relevant on any discussion on impeachment in Nigeria.  Danladi was the deputy governor of Taraba State before he was impeached by the State House of Assembly. The manner by which he was impeached raised a suspicion that there was more to the impeachment.[32] He was however reinstated as the deputy governor of the state through a Supreme Court judgement. It was shown in evidence that there was substantial non compliance with the Constitution. Particularly the fact that he was not given fair hearing by the panel of investigation constituted to look into the allegations against him.

In Adegbenro V. Akintola & Ors (supra), it is obvious that the 1963 Constitution of Western Region did not oust the jurisdiction of the court to entertain suit relating to the removal of premier or governor. This was why Akintola was able to challenge his removal and succeeded at the trial court up to the Federal Supreme Court. One of the important issues in Adegbenro’s case is interpretation of statute. The trial court used golden rule to interpret Section .33 (10) of the 1963 Constitution of Western Region and gave judgement in favour of Akintola. But on to the privy council the court used literal rule to interpret S.33(10) of the 1963 Constitution of Western Region and gave judgement in favour of the appellant.

In Barabe Musa V. Kaduna State House of Assembly (supra), the jurisdiction of the court in respect of suits relating to the impeachment procedure of governors and deputy governors had been ousted by Section 170 (10) of the 1979 Constitution. The court allowed the ouster clause to eliminate the jurisdiction of the court instead of restricting it. Perhaps, this was due to the fact that the issue of noncompliance was not raised before the court. Also in Abaribe’s case, the jurisdiction of the court has been ousted by Section188(10) of the 1999 Constitution of Federal Republic of Nigeria. However, in the case of Inakoju V. Adeleke (supra), the courts engaged in judicial activism and gave a proper interpretation to the provision of Section188(10) of the 1999 constitution to enable the court do justice where injustice has been done by the legislature.

In the case of ALAMIEYESEIGHA V.  IGONIWARI[33] which was decided after Inakoju’s case, it was also held that the courts have jurisdiction to entertain suit relating to impeachment procedure in order to determine if Section 188(1)-(9) has been complied with, and if it is not complied with, to ensure compliance.  From the foregoing, one may say that before Inakoju’s case, the ouster clause eliminated the jurisdiction of the courts to entertain impeachment suits. But after Inakoju’s case, the ouster clause merely restrict the jurisdiction of the court in respect of impeachment matters.

CONCLUSION AND RECOMMENDATIONS

From the discussion so far, it is right to say that the exercise of impeachment power amounts to the performance of quasi judicial functions by the legislature. Furthermore, a review of the impeachment cases shows that in most cases due process were not followed by the legislature. Research also showed that the legislatures in most case, use impeachment as a tool for political punishment. In the circumstance, it is recommended that impeachable offences be re-defined and not subject to legislative interpretation in order to avoid frivolous impeachment proceedings. The legislature should always be made to comply with constitutional provisions during impeachment proceedings. Finally, legislative actions in respect of impeachment should be made subject to the intervention of the court because the courts are the custodians of the constitution.

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[1] Bamigbola, Jimoh M. is a 400 Level Common Law student of Faculty of Law University of Ilorin. 08099538930, jimohobams@gmail.com (2014/2015)

[2] Philips O.H .and Jackson, Constitutional and Administrative Law 8^th ED (Sweet and Maxwell, London: 2001) P 154.

[3] Ibid, p. 155

[4] Onalaja. O, "How not to remove a President" Daily Times, Sept. 3,2002. p. 12.

[5] Ibid.p.12.

[6] Mathew R. Romney, "The Origins and Scope of Presidential Impeachment" Hinckley Journal of Po lilies, Vol. 2 No. 1. 2000, p. 1. r t.

[7] Melton B, The First impeachment: The Constitution Framer and the Case of Senator William Blount (Mercer University Press, 1998) p. 8.

[8] Ibid p. 35

[9] Geddes and Grosset  Webster’s Universal Dictionary and Thesaurus 1^st ed P.250

[10] Ibid . p. 154

[11] Henry Campbell. Black's Law Dictionary 6^th ED (Minn West Publishing. 1990) p. 753.

[12] Buckner, opcit. P.25

[13] Section 143 (11), 1999 Constitution. See also S.188(11) of the 1999 Constitution for a similar provision.

[14] Fashakin. Y,  "Impeachment of Democratically Elected Executive Officers under the 1999 Constitution: An Appraisal" Fountain Quorterly Law Journal VoL 1 No. I, August 2004, p. 109.

[15] Akande. J, introduction to the Constitution of Nigeria 1 999 (MIJ Professional Publishers Limited, Lagos: 2000) p.243.

[16] (2007) 4 NWLR pt. 1025 pg. 423

[17] Inakoju’s case

[18] Per OGUNWUMIJU,J.C.A. (Pp.37-38,paras.G-G)

[19] CITATION: (2014) LPELR-22135(CA)

[20] (1963) 3 WLR 63 PC

[21] (1982) 3 NCLR 463

[22] (2002) 14 NWLR (Pt.788)466

[23] Per PATS-ACHOLONU, J.C.A. (Pp. 22-23, paras. C-A)

[24] (2007) 4 NWLR (Pt 1025) 423

[25] Supra

[26] Mr. Peter Obi was removed as the governor of Anambra by the Anambra State House of Assembly, however he was reinstated by the court after a finding that there was substantial non compliance with the provisions of the constitution.

[27] Michael Abiodun Oni, Judicial Reivew of Governors’ Ladoja And Obi Impeachment In Nigeria’s Fourth Republic” SINGAPOREAN Journal Of Business Economics, And Management Studies Vol.1, NO.6,2013 117

[28] http://www.peoplesdaily-online.com/weekend/index.php/news/special-report/3616-revealed-real-reasons-nyako-is-wanted-impeached accessed on 18th February 2015

[29] Ibid

[30] http://nationalmirroronline.net/new/real-reason-enugu-dep-gov-was-impeached/ accessed on 18^th February 2015

[31] (2014) LPELR-24020(SC)

[32] http://www.dailytimes.com.ng/article/%E2%80%9C-taraba-sani-danladi-redefining-political-loyalty%E2%80%9D accessed on 11^th February, 2015.

[33] Suit no  CA/PH/124/2006