In a Monarchy, the King is the Law, in a democracy, the Law is the King—Thomas Paine, American Nationalist
The concept of impeachment is traced to the American Constitution where the Governor or the President can be impeached (removed ) where he or she is found culpable of gross misconduct which the then Congressman, Gerald Ford stated during the Impeachment Process of President Richard Nixon following the celebrated Water Gate scandal that:
“Gross Misconduct is what in the Opinion of a majority of Members of the House of Representatives say it is”
The case in Nigeria was akin to the position above until Judicial Interventions as we can see hereunder :
The Removal or Impeachment of a Governor or Deputy Governor under our Groundnorn is provided for by Section 188 (1) to (10).This section of our Constitution provides for a cumbersome political algorithm that must be followed through by the members of the House of Assembly for it to be legitimate but which has so far been simplified by political expediency and sometime acts akin to treasonable felony
Find hereunder the procedure for impeaching the Governor or the Deputy Governor of a State in Nigeria as provided for by Section 188 , Subsections 1-8 of the Constitution of the Federal Republic of Nigeria, 1999 (,As Amended ) and where ever you see the word “Governor’ also read it as “Deputy Governor” :
Gross misconduct is defined by the Constitution as ‘…a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct
Step 1
A notice of any allegation in writing alleging gross misconduct on the part of the Governor. This notice must be signed by not less than one-third of the members of the State House of Assembly is presented to the Speaker of the State House of Assembly.
Gross misconduct is defined by the Constitution as ‘…a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.’
Step 2
The Speaker of the State House of Assembly must within 7 days, serve the Governor of the State and each member of the State House of Assembly with a copy of the notice of allegation.
Step 3
The Governor has a right of reply (he/she does not have to reply however), and any such statement in reply to the allegation must be served on each member of the State House of Assembly.
Step 4
Within 14 days of the presentation of the notice to the Speaker of the State House of Assembly, the State House of Assembly shall resolve by motion without any debate whether or not the allegation shall be investigated. This motion needs to be passed by at least two-thirds majority of all members of the State House of Assembly.
Step 5
If the motion fails to reach the required majority, the process immediately stops, and no further action will be taken. However, if the required majority is obtained and the motion is passed, then the Speaker of the State House of Assembly will within 7 days of the passing of the motion, requests the Chief Judge of the State to appoint a Panel of seven persons who in his opinion are of unquestionable integrity to investigate the allegations. The members of the Panel cannot be members of any public service, legislative house or political party.
I frown at the haste with which the Houses of Assembly carry out such illegal Impeachments. I submit that should the House of Assembly of a State illegally remove a Governor or Deputy Governor in haste, the Court should also with equal haste upturn the illegality because no organ of government has a monopoly of speed
Step 6
The Panel is to report its findings within three months of being appointed. The findings will be reported to the State House of Assembly. During the proceedings of the Panel, the Governor shall have a right to defend himself, and shall also have the right to be defended by a legal practitioner of his/her choice.
Step 7
Where the Panel reports that the allegation has not been proven, there will be no further action. However, if the report is that the allegation against the Governor has been proven, then the State House of Assembly will consider the report, and a resolution for the adoption of the report shall be moved.
Step 8
For the resolution to be adopted, it must be supported by not less than two-thirds majority of all the member the State House of Assembly. Once adopted the Governor shall stand removed from office as from the date of the adoption of the report.
The first crux is that two-thirds of Members of the House of Assembly must sign the impeachment Notice to be served on the Governor or Deputy Governor. Anything less than this, renders the whole process nugatory! See Dapialong v. Dariye No. 2,(2007), 8 NWLR,(Part 1036),332.
The case mentioned above has also streamlined what constitutes a Governor’s Gross Misconduct in the contemplation of Section 188 (3) and (4) of the Constitution of the Federal Republic of Nigeria (As Amended), as opposed to the long held principle as expounded by Congress Man, Gerald Ford of the U.S. Congress expanded above.
From the foregoing, it is the Law that impeachment proceedings which are sui generis must follow the due process of law, failure of which it becomes a nullity
Gross Misconduct must be real, ascertainable, proven with cogent and real evidence and must fall within the parameters provided for by the Supreme Court in the above stated case.
The Nigerian Jurisprudential trajectory has placed on the State Legislators a duty to follow all the ten sine qua non provided for by Sections 188 (1) to (9)) to remove a Governor and failure to follow any of them gives the Courts powers to inquire as to legality or otherwise of the Process .See Inakoju v. Adeleke (2007),4 NWLR (Part 1025),p. 423.
This case dispenses with so called Political Question foisted on our jurisprudence in the case of Balarabe Musa v. Kaduna State House of Assembly (1982) 3 NCLR,450 and which is represented as an ouster clause on the impeachment process in Section 188(10) of the Constitution (As Amended ).
The Service of the Impeachment Notice must be personal Service and publishing of same in Newspapers or any other Media Platform does not suffice !See Dapialong V. Dariye (Supra).
The House of Assembly must also be properly constituted with a duly elected Speaker and not a Speaker Pro Tempore’, a Position not known to our Constitution! See Dapialong V. Dariye (Supra).
The House of Assembly when considering the Impeachment of a Governor or Deputy Governor must also conduct the process in the House of Assembly with presence of the Official Mace !See Balonwu v. Mr. Peter Obi (2009) 18 NWLR (Part 1172) 13.
From the foregoing, it is the Law that impeachment proceedings which are sui generis must follow the due process of law, failure of which it becomes a nullity.
By the Authority of Dapialong v. Dariye (Supra ), It has been held by the Supreme Court of Nigeria that the 8 steps provided for by Section 188 ,Subsections 1-8, of the Constitution must be followed strictly and non compliance to any of sine qua non , indicated there on ,will allow the Courts to inquire as to the legality or otherwise of the process and when the Court finds any illegality in the process, the Court will set aside the Process and reinstate the Governor or Deputy Governor purportedly removed or Impeached.
I frown at the haste with which the Houses of Assembly carry out such illegal Impeachments. I submit that should the House of Assembly of a State illegally remove a Governor or Deputy Governor in haste, the Court should also with equal haste upturn the illegality because no organ of government has a monopoly of speed.
Lawyers should act properly and they should not assist politicians to desecrate our Constitution. If Lawyers do not help politicians, they can not circumvent the Law .
In this light, because layman that are politicians cannot plan the legal labyrinth that pervades such illegal impeachment process, the illegality will stop! We must apply our Rules to stem the impunity.
Ogbankwa, Esq. @douglasogbankwa@gmail.com , is the Convener of the Security Situation Room.
