by Charlie Agboriso
Liberalising the process of impeachment is akin to removing the immunity clause. In an environment with fledgling institutions, such an act will constitute a needless distraction to the president, who may spend more time fending off impeachment than governing.
There is a Bill before the House of Representatives calling for an Act to alter the provisions of Section 143 of the 1999 Constitution. The bill seeks “to remove ambiguities in the process of removing the president and the vice-president from office on allegations of gross misconduct and to provide for a more transparent and democratic procedure for impeachment and for other matters connected thereto”. It is sponsored by Hon. Yakubu Dogara, and co-sponsored by Hon. Emmanuel Jime, Hon. Ewa, and Hon. Ibrahim El-Sudi Tukur. The sponsors obviously believe that that there are ambiguities in the impeachment provision in the omnibus phrase ‘gross misconduct’ and that the process of impeachment is not transparent and democratic, hence the need for amendment.
In examining the foregoing assumptions, it is important that they are placed in perspective against the historical reality and other considerations. In pursuit of this, the following questions need to be posed: Has section 143 of the 1999 Constitution been activated and logically concluded against any president or vice-president in Nigeria upon which outcome an empirical deduction can be made? Have ‘the ambiguities in the process of removing the president and the vice-president from office on allegations of gross misconduct’ allegedly identified in the 1999 Constitution been rectified in this amendment bill? And, is the procedure for the impeachment of the president and vice-president in the 1999 constitution not transparent and democratic?
Nigeria adopted the American-style democratic constitution in 1979. Since then, no record exists of any attempt by the National Assembly to impeach either the president or vice-president. What would pass for an attempt to commence impeachment proceeding- and therefore trigger the section for appraisal- was the feud between the Ghali Umah Na’abba-led House of Representatives and then President Olusegun Obasanjo in 2002. It fizzled out in the maze of political manoeuvring by the ruling Peoples Democratic Party (PDP). So how did Dogara and his co-sponsors arrive at the conclusion that section 143 is defective, even when it has not been tested? Even if we should assume – and without question concede – that section 143 is so patently defective, and therefore undeserving of any benefit of doubt, the amendment bill has not offered any alternative to the catch phrase which it labelled as ambiguous.
To be ambiguous is to be vague, unclear, uncertain, confusing, woolly etc. It is difficult to see any of the above descriptions in Section 143(11) of the 1999 Constitution, which describes ‘gross misconduct’ as ‘a grave violation or breach of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct’. Amend section 143 of the 1999 Constitution “to remove ambiguities in the process of removing the president and the vice-president from office on allegations of gross misconduct”.
The sponsor of the bill, Dogara, in an interview published by The Nation newspaper of Monday June 24, 2013 gave further details of what he considers the ambiguities in the subsisting impeachment clause contained in the section. He reeled out specific issues of alleged infringement of the Appropriation Act by the president, mentioned perceived lopsidedness in the interpretation of the Bureau of Public Procurement Act, raised sundry issues on the removal of subsidy on petroleum products, and concluded that they are all impeachable offences. Curiously, he did not indicate how section 143 of the 1999 Constitution inhibits the House from proceeding against the president on the strength of the offences allegedly committed.
It is evident that Dogara wishes that the phrase ‘gross misconduct’ were specific and outlines the offences he alleges in precise terms. He also wishes that the mere citing of what appears to him an impeachable offence suo motu constitutes a formal commencement of impeachment process against the president. His latent desire, while actuating the amendment exercise, failed him midway when he realised that the only way to remedy what he sees as ambiguity, or better still a lacuna, was to enumerate offences in exact terms.
But constitutions are not criminal codes, and therefore do not usually set out specifics as they relate to impeachable offences. The United States Constitution, for instance, defines impeachable offences as “treason, bribery, or other high crimes and misdemeanours.” However, only Congress decides what constitutes a “high crime or misdemeanour” since the United State’s Supreme Court would not assume jurisdiction in any matter to determine whether the Senate properly “tried” a defendant. The interpretation of this relevant and kindred section by the courts and scholars in the US is on all fours with the opinion of our courts in Nigeria. With Section 143(11) as it currently is, wide latitude still exists for the exploitation of legislators intent on reigning in a president. This indeed is an omnibus monster which plays to the whims of adversarial lawmakers, and therefore cannot be any worse than it is. It can only be ‘improved on’ to the advantage of the president.
From the foregoing, it can be safely concluded that the content of the amendment bill contradicts the first arm of its mission statement. It is indeed ambiguous, as against the subsisting section 143 that it seeks to disambiguate. The second arm of the bill, which is to make the process of impeachment ‘transparent and democratic’ ousts the judiciary from the impeachment process, it gives the House of Representatives the power to impeach the president or vice-president through simple majority and gives the Senate the power to prosecute the president or the vice-president upon impeachment by the House. The Chief Justice of Nigeria (CJN) is, however, to preside over the proceeding with the senators voting.
In the same interview in The Nation newspaper mentioned above, Dogara had also said: “…When the National Assembly, a body of 469 members by 2/3 majority has passed a resolution to say that an office holder has committed an impeachable offence, the CJN is called upon to constitute the panel, at the end of the day, whatever they say, the courts cannot query it, the National Assembly cannot debate it. So, if I were the president, I will just give the CJN the seven names, because he is my appointee. After that houses or mansions will be bought for them, they will be bribed and the story goes on. In fact, they won’t even put people of unquestionable integrity.”
This is an undeservedly grave indictment of the judiciary. But it may be beneficial to address the allusion to the size of the legislature, against that of the judiciary first. The doctrine of separation of powers, as eloquently espoused by Montesquieu the French philosopher, envisions checks and balances such that each arm moderates the other, to ensure the delicate balance on which democracy thrives. This doctrine is laboriously but surely beginning to work fairly well in Nigeria, at least at the federal level, hence there is no need to seek greater powers for one arm. The proponents of the amendment bill are flustered over their claim that the opinion of 469 members of the National Assembly could be subordinated to the “whims” of just seven justices of the Supreme Court, who are after all the appointees of the president and necessarily must do his bidding. They forget that Justices of the Supreme Court are not driven by whims.
The concept of separation of powers is not a by product of numbers. In the imagination of the law, the three arms are equal. The power of the National Assembly over the judiciary is evidenced by the confirmatory role of the Senate over its (judiciary’s) leadership. Hence the nomination of the CJN, among others, is confirmed by the Senate. Therein lies the power of the legislature over the judiciary. If due diligence is carried out by the Senate in its role, no judge whose conduct can justify the fears of the proponents of this bill can scale the confirmation huddle. Beyond this, the assumption of control by the executive over the judiciary is uncharitable and without substance. The current CJN for instance, was among the three justices of the Supreme Court in whose view, late President Umaru Musa Yar’Adua and then Vice-President Goodluck Jonathan were not properly elected in 2007. Could this Chief Justice also be counted among those who could be influenced as cavalierly alleged by Gobara?
Another reason advanced for this proposed amendment, though extraneously implied is to simplify the process of impeaching the president. No democracy makes the process of deconstructing its leadership infrastructure simple. Taking a cue from the United States, its Congress regards impeachment as an instrument to be used only in extreme cases. As testimony to the foregoing position, the House has initiated impeachment proceedings only 64 times since 1789 with 19 of these proceedings actually resulting in the House passing Articles of Impeachment. The reader should note that of these 19 cases of impeachment, only two involved their President. Andrew Johnson was impeached in 1868 and was acquitted by the Senate, falling one vote short of the necessary 2/3 needed to remove him from office. Bill Clinton was impeached in 1998 by the House of Representatives but was acquitted by the Senate. The vote fell short of the necessary 2/3 needed to remove him from office. This again is evidence of a deliberate cumbersome procedure, the lack of a super majority.
Liberalising the process of impeachment is akin to removing the immunity clause. In an environment with fledgling institutions, such an act will constitute a needless distraction to the president, who may spend more time fending off impeachment than governing. A fledgling democracy like ours needs to run under a standardised format for a reasonable period of time. The impeachment pattern modelled after the American system will scarcely sit easy in our clime, because the states are not running bicameral legislature. In the United States for instance, only the State of Nebraska runs a unicameral legislature. The other 49 function on bicameral platform.
Democratic traditions evolve from the known. This is not to say that radical departures from known practices are not possible. But when they occur, they ought to be seen to be remedying very obvious defects, rather than be potentiated with likely negative consequences.
Read this article in the Thisday Newspapers
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