The Process and Flaws of the Impeachment Law

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Definition of Impeachment

The term ‘Impeachment’ refers to a legislative, and not a judicial process; the process by which the Legislature charges certain public officials for ‘gross misconduct’, and if such official is found guilty, they are removed from office by the Legislature. In fact, Sections 143(10) & 188(10) the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) oust the jurisdiction of the court from the determination of the Panels or Legislature in impeachment matters. See the cases of Inakoju & Ors v Adeleke & Ors (2007) LPELR-1510(SC); APC v PDP & Ors (2015) LPELR-24587 (SC) per Olabode Rhodes-Vivour, JSC. However, in Inakoju & Ors v Adeleke & Ors (Supra), the Supreme Court held that an ouster clause in a statute or the Constitution doesn’t prevent the court from investigating if the conditions prescribed in such statute or Constitution are fulfilled, prior to the act purported to be done under the statute or Constitution; because, if the conditions have not been fulfilled to the letter, then the act purported to be done would be ultra vires and declared null and void, as not being done under the said statute or constitutional provision. 

The wrongdoing being alleged by the Legislature, may not necessarily be a criminal offence, and the burden of proof is not proof beyond reasonable doubt, as is required to secure a conviction in the case of criminal offences.

Grounds of Impeachment and the Removal Process

Just like the US Constitution does not fully define the grounds for impeachment beyond ‘treason, bribery, other high crimes and misdemeanours’ (see Article I Section 2, Article I Section 3 Clause 6 &7 & Article II Section 4 US Constitution), so also do Sections 143 & 188 of the Constitution fail to define ‘gross misconduct’ – the ground for impeachment, only inserting a qualification in Sections 143(2)(b) & 188(2)(b) of the Constitution, that it be a gross misconduct in the performance of the functions of the office, either a grave violation or breach of the Constitution or gross misconduct which, in the opinion of the House of Assembly amounts to gross misconduct (Section 188(11) of the Constitution). This last part of the definition is rather subjective and can therefore, be easily abused; I will address this issue below. 

The impeachment and removal process, differs from country to country. In Nigeria, the constitutional impeachment and removal process is one in which a President, Vice President, Governor and Deputy Governor may be removed from office. For us, the impeachment and removal process, which I won’t bother to regurgitate especially due to space constraints, is covered by Sections 143 (President and Vice President) and 188 (Governor and Deputy Governor) of our one and only Constitution, while in America, where we have copied our Presidential system from (and where true Federalism is practised, unlike the Nigerian system which is Federal in name only but is actually Unitary in reality and practice), the process of impeachment and removal of State Officials like Governors is covered by their State Constitutions. Every State except Oregon, has an impeachment process for the State Governor; in Oregon, the Governor cannot be impeached, as the Oregon State Constitution has no such provision (I believe there may be a Bill for a new provision pending, to rectify this state of affairs). The impeachment processes of the American States are similar, though the grounds for impeachment may vary; some States mention the grounds for impeachment, while others do not.

For the National Assembly and the State Houses of Assembly, by virtue of Section 50(2)(c) of the Constitution, the Senate President, Deputy Senate President, Speaker of the House of Representatives and Deputy Speaker can be removed for no stated reason by a two-thirds majority of either House, while the Speaker of a State House of Assembly or Deputy Speaker can also be removed in same manner as those of the National Assembly (see Section 92(2)(c) of the Constitution).

Abuse of the Impeachment and Removal Process

The matter that was on the political front-burner a few days ago, was that of Deputy Governor of Edo State, Phillip Shaibu, who was impeached, found guilty, removed from office and instantly replaced. While the allegation levelled against him was misconduct, perjury and disclosure of official secrets, Mr Shaibu on the other hand, claimed that it’s all a campaign of calumny against him, in order to truncate his ambition to become Governor of Edo State.

As I said above, the same definition of gross misconduct stated in Sections 143(11) & 188 (11) of the Constitution is rather subjective, thereby leaving it open to abuse, though in the case of Phillip Shaibu, the allegation of perjury is a serious one particularly as it is also a felony in Nigerian law that attracts 14 years imprisonment, and in some circumstances, even more, upon conviction (see Section 118 of the Criminal Code Act and Akpatason v Adjoto & Ors (2019) LPELR-48119(SC) per Paul Adamu Galinje, JSC), while disclosure of official secrets could also be gross misconduct, depending on what information was leaked. Of course, the public is not in a position to comment on the veracity of the allegations against Mr Shaibu, since we are not even aware of the details.

But, Mr Shaibu claimed that he was framed, and unfortunately, the court is not empowered to look into the veracity of the allegations against him, but can only ascertain that the process of impeachment was properly followed. This means that it is not particularly difficult to impeach and remove a disfavoured public official from office, based on a trumped-up charge, as long as the process stated in Sections 143 & 188 of the Constitution is followed to the letter. It is therefore, easy for the impeachment law to be misused.

It seems that in the Nigerian context, gross misconduct in the performance of official duties mostly has nothing to do with violating the Constitution or even the Code of Conduct for Public Officers, and is more about an elected official in one of the aforementioned categories who has fallen out of favour with a power that is or powers that be, or a group of his/her colleagues that have more clout than the individual being charged, and want him/her removed from their position to pave the way for someone more amenable or acceptable to them. Using these provisions to chase out disfavoured public officials by hook or by crook, amounts to an abuse of the law.

Recall the removal of the Deputy Governor of Kogi State, Simeon Achuba in 2019. What was Mr Achuba’s offence, if not a grouse against him harboured by Governor Yahaya Bello who was in full control of the Kogi State House of Assembly (like most Governors are usually control of theirs)? In a television interview, Mr Achuba had stated that he had complained that Governor Bello had mismanaged more than a couple of hundreds of billions of Naira of Kogi State funds, and was owing civil servants in the State 38 months salary. His criticism of Governor Bello’s style of leadership, obviously didn’t go down well with his Principal. In that case, the Panel constituted to investigate the allegations against Mr Achuba under the then Chief Judge of the State, late Justice Nasiru Ajanah, reported that the allegations levelled against him were not proven. Section 188(8) of the Constitution provides that where the allegation isn’t proved, no further proceedings shall be taken in respect of the matter (also see Section 143(8) of the Constitution). In Tabik Investment Ltd & Anor v GTB (2011) LPELR-3131(SC) per Aloma Mariam Mukhtar, JSC (later CJN) the Supreme Court held inter alia that “The word ‘shall’ connotes mandatory discharge of a duty or obligation, and when the word is used in respect of a provision of the law, that requirement must be met”. In short, the impeachment proceedings against Mr Achuba ought to have ended by operation of law, but, instead, since it is the usual practice for Government authorities and bodies to observe our laws in their breach, worse still the Legislature that is responsible for lawmaking, the Kogi State House of Assembly still went ahead to unlawfully remove Mr Achuba. At the time, I remember having a problem with Justice Ajanah swearing in Mr Achuba’s replacement, particularly because the Panel he constituted didn’t find Mr Achuba guilty, but some, including the court that declared Mr Achuba’s impeachment unconstitutional because it didn’t follow due process, maintained that Justice Ajanah was simply performing his constitutional duty.

In Inakoju & Ors v Adeleke & Ors (Supra), Governor Rasheed Ladoja’s removal was declared by the Supreme Court (and the Court of Appeal) to be unconstitutional, null and void, as the process set out in Section 188 of the Constitution wasn’t followed. And, he was restored to the position of Governor of Oyo State. For one, contrary to Section 188(2)(b) of the Constitution, the notice of impeachment was served by means of substituted service in the newspaper, instead of personally on Governor Ladoja and each member of the Oyo State House of Assembly.

How long are our Politicians going to continue to turn the law on its head and observe  our laws in their breach, manipulatively using them as a tool of oppression and intimidation against those whom they do not care for? It is particularly shameful and off-putting that lawmakers, elected representatives of the people, whose function is to inter alia, make laws for peace, order and good governance (see Section 4 of the Constitution) have now become puppets in the hands of the Executive, doing their bidding, whether lawful or otherwise.

Conclusion

I have some issues with the Nigerian method of impeachment, particularly that of the State level. In America, just as Federal impeachments and removals are carried out by the bicameral Legislature, so also is this procedure replicated on the State level. The Lower House which has the sole responsibility so to do under the US Constitution, votes for the impeachment, while the Upper Chamber, the Senate sits as a trial court to try the impeached official by considering evidence and hearing witnesses. Such official is either found guilty by means of a vote of at least two-thirds majority of the Senate and is then removed from office, or acquitted, and continues in office like Presidents Johnson, Clinton and Trump. In the USA, the decision of the Lower House is questioned, by way of trial in the Senate.

In the Nigerian scenario, no Nigerian President has ever been impeached and removed, only Governors and Deputies; and as far as the State level is concerned, the House of Assembly is literally the Judge, Jury and Executioner, in that, even though it is unlawful, the example of the Kogi House of Assembly has shown that a State House of Assembly can wrongfully go against the recommendation of the Panel, as was done in Mr Achuba’s case, since its determination cannot be questioned in a court of law. Even in Mr Achuba’s case, the court decision wasn’t about the truth or otherwise of the allegations levelled against him, but about the fact that contrary to Section 188(8) of the Constitution, the Kogi State House Assembly didn’t follow due process. Instead of the impeachment process ending as a result of unproven allegations, they removed him instead. And, in situations where the court decides that due process wasn’t followed, valuable time may have already been lost and wasted, or the term of office even completed, so that it ends up being an academic process in which only monetary compensation and benefits are the fruits of the judgement. The aim of getting the person out of office, is already achieved.

I believe that the constitutional provisions concerning impeachment and removal, require some amendments, to address some of the pertinent issues that have been raised.