‘Deji Olunlade: What you should know about impeachment in Nigeria (Y! Legal)

by Deji Olunlade

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This, respectfully, robes the House of Assembly powerfully in determining what constitutes gross misconduct. Therefore, any form of activity can be garbed as an impeachable offence in the eyes of the members of the House of Assembly as far as our laws are concerned. 

Charles-Louis Montesquieu a French lawyer, man of letters and political philosopher said ‘political liberty is to be found only where there is no abuse of power. But constant experience shows every man invested with powers is liable to abuse it and carry his authority as far as it will go

In the light of the above quote, a basis may be found as to the reasons why legislatures around the world have been empowered to impeach or remove erring government executives. Though amply provided for by different laws world over, except for cogent and compelling reasons, the legislators have been wary of invoking their powers to remove a sitting President or Governor.

However, in Nigeria, the situation is different as public officials are being removed on flimsy, political and legally incorrect grounds. There was an attempt to impeach even the then President Olusegun Obasanjo whilst some governors in Nigeria have been successfully or unsuccessfully impeached. Prominent amongst these are Balarabe Musa, Rashidi Ladoja, Joshua Dariye, Ayodele Fayose and lately Admiral Murtala Nyako.

This paper only tends to discuss the legal means through which a sitting President, Vice-President, Governors and their Deputies can be impeached. Very illustrative and instructive is the notorious case of Inakoju v Adeleke (2007) 4 NWLR (Pt.1025) 423. A brief background of the case may suffice here. Governor Rashidi Ladoja was the Governor of Oyo State, on 13th December, 2005, some legislators opposed to him sat at the D’rovans Hotel in Ibadan and raised notice of allegations of gross misconduct against him. The Speaker and the Deputy Speaker were not among those that raised this notice of allegations of gross misconduct, the required service on the Governor and all members of the House of Assembly was done by a newspaper advertisement and the 18 out of the 32 lawmakers thereafter requested the Acting Chief Judge of the State to constitute a panel of seven people to investigate the allegations. The committee after only two days (while it had 3 months) submitted its report to the illegally constituted House of Assembly and the Governor was ALLEGEDLY removed.

It is necessary to reproduce the said facts as it relates to the procedure embarked upon by the members of the House of Assembly in removing a substantive Governor of a state. The law provides in Sections 143 and 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the procedure to be adopted in removing a President, Vice-President, Governors and Deputy-Governors. For this article, the procedure for that of a state governor will be adopted which is very similar to that of the removal of the President save for the bicameral legislature at the federal level.

The first thing to note is that the use of the word “impeachment” has no legal basis within the body of our laws as rightly stated by Justice Tobi JSC, the right description for this procedure is simply “removal”. Impeachment and removal connotes two different interpretations. Therefore, the fine points leading up to the removal of Governors or their Deputies can be briefly summarized as follows:

  1. Notice of any allegation in writing must be signed by not less than one-third of the members of the House of Assembly and presented to the Speaker of the House i.e If the House of Assembly has 24 members, not less than one-third of the members being not less than 8 members must sign the notice of allegation of gross misconduct and it must be presented to the Speaker of the House and not any other official or designate.
  2. This notice of allegation must state that the holder of the office is guilty of gross misconduct in the performance of the functions of his office, and detailed particulars of these misconducts must be specified.
  3. The Speaker must within 7 days upon the receipt of this notice cause the notice to be served on the holder of the office and on each member of the House of Assembly. The Holder of the office may thereafter reply to the allegation contained in the notice.
  4. Within 14days of presentation of this notice (whether the holder of the office replies or not), the House of Assembly shall resolve by motion supported by two-third majority of the House of Assembly whether the allegation should be investigated.
  5. Within 7 days of the passing of this motion, the Chief Judge of the state shall at the request of the Speaker of the House of Assembly appoint a seven man panel who must be of
  • UNQUESTIONABLE Integrity
  • And must not be members of the public service, legislative house or any political party
  • The committee is empowered to act within the guidelines and procedure set for it by the House of Assembly and must within 3 months submit its findings to the House.
  1. The elected official to be impeached may defend the allegation leveled against him by himself or by legal practitioner of his choice at the sitting of the panel.
  2. If the allegation leveled against him is unfounded then no removal proceedings can be continued against him however, if he is found liable on the allegations, the House shall within fourteen days of the receipt of the report adopt it by two thirds majority of all the members of the House and such holder of the office stands removed afterwards.
  3. The mace of the House of Assembly must be present as at the time of the proceedings.
  4. The House of Assembly must sit during parliamentary hours i.e the time fixed by the Rules of the House for parliamentary business.
  5. The venue of the proceedings should be open to members of the public.
  6. The Speaker of the House of Assembly must be fully involved in the procedure leading to the removal.
  7. The proceedings for the removal must be carried out in the official House of Assembly and not at any other place e.g private residences, hotels and non-designated places . See the case of Akintola v. Aderemi (1962) ALL NLR 442 at 445

It should be fully understood that any derogation from the above procedure enumerated will only serve to occasion injustice and render the removal proceedings of no legal effect whatsoever.

 

ISSUES ARISING FROM IMPEACHMENT PROCEEDINGS IN NIGERIA

While the Constitution has stated that a Governor of a state may be removed on grounds of gross misconduct, it has failed to properly define what gross misconduct implies and has indirectly empowered unruly members of Houses of Assembly to tag any administrative mistakes or seeming derogation of the use of power into gross misconduct. Section 188 (11) defines “gross misconduct” as a grave violation or breach of the provisions of this constitution or a misconduct of such nature as amounts in the opinion in the House of Assembly to gross misconduct”.

This, respectfully, robes the House of Assembly powerfully in determining what constitutes gross misconduct. Therefore, any form of activity can be garbed as an impeachable offence in the eyes of the members of the House of Assembly as far as our laws are concerned. This position will only serve the ends of politicians who seek personal vendettas against governors or their deputies as may be suggested in the recent spate of impeachment of some governors. It was also primarily used during the Obasanjo years to punish erring governors who decided with good conscience to withdraw support for the third term bid.

In a bid to curb these excesses, the Supreme Court has laid down certain acts which may be considered as gross misconduct, while these only serves to direct and guide our legislators to what may constitute gross misconduct, it has not changed the position of the law from what it is. These instances include:

  1. Interference with the constitutional functions of the legislature or the judiciary
  2. Abuse of fiscal provisions as it relates to budgeting.
  3. Abuse of the code of conduct for public officers.
  4. Disregard and breach of fundamental human rights of the citizens
  5. Instigation of military rule or take-over.
  6. Stealing or misappropriation of Local Government funds
  7. Subversive conduct
  8. Certificate forgery or racketeering.

Indeed, the list is limitless but the above may suggest the types of activities which should ordinarily cause the removal of state executives and not veiled cross-carpeting allegations or pursuing personal grievances.

Furthermore, Section 188 (10) further tries to oust the jurisdiction of the Court in respect of proceedings leading up to the removal of an executive. The section states that “no proceedings or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”

Some lawyers have used this opportunity to argue that once a state governor or the deputy has been impeached, then the court of law has no powers to entertain suits in that respect. It is, however, the clear position of the law that the jurisdiction of the court can only be ousted when the procedure leading up to the removal has been fully complied with, therefore, the court of law will be empowered to determine the legality or otherwise of the process leading up to the removal of such elected official.

Finally, the provision as regards the composition of the panel to investigate the allegations of misconduct against the official leaves room for maneuvers by politicians. The constitution simply provides that such persons should be people of unquestionable integrity and should not be members of any legislative house or political party. It is my submission that certain criteria be included as to the composition of this all-important panel. Membership of the panel should include professionals well versed in the type of allegation with which the elected official is being challenged. For instance, if it misappropriation of funds or embezzlement, I believe an accountant or an auditor will perfectly fit this role. Likewise, if it is a constitutional issue, a retired judge, A Senior Advocate of Nigeria etc may be in a better position to be a member of the panel.

Factors such as age, gender, class etc must be factored into selecting members of this panel and the Chief Judges of different states are encouraged in this respect to act with utmost good faith, integrity and good conscience.

It is the author’s hope that knowing fully well the requirements leading up to the removal of elected state executives, our legislators will live up to standard and respect the wishes of people of their constituencies in following to the latter the provisions of the law as it relates to removal.

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‘Deji Olunlade is a legal practitioner, a graduate of the University of Lagos and experienced in full time dispute resolution mechanisms with an uncanny ability of proffering simple solutions to complex legal issues. He is passionate about using the instrumentality of law to advance sound social, political and economic/business discourse.

Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.

 

 

 

 

 

Comments (7)

  1. Good one Counsel. am glad to see this write-up on this topic. Please i want to know further on this. In the conduct of its investigation by the members of the panel, what will be the position of such report where five members have agreed to the impeachment process, whereas two members have dissenting opinion on the removal of a chief executive/vice?

  2. Beautiful write up Barr. Deji Olunlade we will get it right very soon and that SOON is NOW that’s why we should wake up from our slumbering we YOUTHS and take our right full place we have a stake too in governance.

  3. True word,but u too know quite alright that there is rampant of in-justice in all parastatals including various homes…but all rules guiding such act is obvious to each of them,but when the right peg is not put into the right hole…..Tenks for Good work tied together.

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