THE GALE OF IMPEACHMENT AND CONSTITUTIONAL INTRICACIES
By Ajayi Olatunji Olowo
The impeachment clause is a major weapon of check-and-balance in the Nigerian 1999 Constitution to check the abuse of enormous executive powers exercised and exercisable by elected functionaries of the executive arm of government – the President, Vice President, Governors and Deputy Governors, who are shielded from prosecution from criminal and or civil charges (in their personal capacities) while in office as contained in the provisions of section 308 of the constitution.
From legal statutory interpretation point of view, it is instructive to note that the provisions of section 308 is meant to protect the aforementioned office holders from frivolous litigations that could otherwise distract them from focusing on proper governance.
It is not and would not have been the intention of the framers of the constitution that the executive office holders should hide under the immunity clause in section 308 to commit crime against the citizenry and the state in any manner whatsoever. Neither would it have been the intention of the constitution to shield executive office holders from legal repercussions where issues of gross misconduct tantamount to treason contrary to provisions of section 1 (2) of the constitution is involved.
As a check-and-balance against abuse of power in the normal course of governance, the legislature is empowered under section 188 of the constitution (in case of Governors/Deputy Governors) and section 143 (in case of President/Vice-President) to remove such an erring political office holder covered by immunity against prosecution of any kind under section 308.
It then follows prima facie that for the affected political office holders to face prosecution, they would have to be first removed from office by the legislature (with a theoretically stringent two-thirds majority of all members of the legislature) in accordance with provisions of sections 188 or 143 of the constitution as the case might be.
To give adequate power to the legislature to serve as proper check on the executive arm of government through the aforementioned constitutional provisions, sections 188 (10) and 143 (10) state that the legislative process leading to impeachment are not justiceable, that is it is not within the competency of the court to intervene.
The provisions of sections 188 (11) and 143 (11) state further that what constitutes a gross misconduct warranting impeachment is a violation of the provisions of the constitution or whatever so amount to gross misconduct in the opinion of the legislature.
From the foregoing, it is clear that the impeachment process is not meant to be subject to any judicial veracity of the alleged constitutional breaches and or gross misconduct. While the truth of such impeachable offences may not survive the test of normal judicial trial in a court of competent jurisdiction, the process is arguably meant to serve a political antidote to an omnibus shield provided the political office holders under section 308 of the constitution.
Despite obvious potential checks provided in sections 188 and 143, evidence of plundering of state funds and even commission of heinous crimes such as murder by political office holders who enjoy immunity under section 308 have been elicited by the report of State Security Service (SSS) and Economic and Financial crime Commission (EFCC) in various reports that have been made public at various level of government in recent time.
The recent oral submissions of the Chairman of EFCC, Mallam Nuhu Ribadu, before the Senate, which indicated that 31 out of 36 State Governors are under investigation for corruption is a reference point of the decadence in our political strata which should have been ameliorated by the various legislative assemblies. But what do we have?
Since most of the affected political office holders have a firm grip on their political environment (including party machineries) it has been practically impossible to invoke the impeachment clause to sack such erring office holders and make them face prosecution. In effect, political expediency has largely impeded the efficacy of the constitutional provisions.
However, there has been a new dimension since the impeachment of the former governor of Bayelsa State, Alamieyeseigha, which seems to have whittled down considerably, the “larger than life” political aura wielded by the state chief executives. The new dimension is the EFCC-induced fast-track impeachment currently sweeping across the political landscape of Nigeria.
The nucleus of the approach is that the lawmakers at the affected state of assemblies are made to bargain for their freedom by embarking on their constitutional role of impeachment of governors that have been indicted by the EFCC. This is so as the lawmakers are themselves, in most cases, indicted of being secondary parties to the indictment of the governors, but unlike the governors who have constitutional immunity, they (lawmakers) enjoy no immunity and as such could be prosecuted at will by the anti-corruption agency of the federal Government.
However, unlike the governors who are alleged to be involved in massive lootocracy of the treasury, the lawmakers are tangential partakers in the corrupt enrichment through the little amount doled out to them by the governors under ‘constituency projects’ that were never implemented. This trend, which started in Bayelsa state, is the same scenario being played in the on-going impeachment saga in Ekiti, Plateau and Zamfara states. And if the story in the Tribune newspaper issue of 09 October 2006 were anything to go by, more states would face similar impeachment scenario sooner than later.
As much as it is a standard practice in criminal justice procedure for the prosecution to engage in trade-off to tactically obtain the cooperation of a co-accused, accessory or secondary parties in the trial of indictable offences with the resultant effect of turning such persons into witnesses (with their protection and freedom guaranteed in return in order to secure conviction of the main culprit) the current approach adopted to rein in the lawmakers to perform their constitutional and oversight duties raise some pertinent questions deserving critical analysis on the efficacy of the rule of law in the Nigerian nascent democratic experience of the last seven years.
Some of the jurisprudential issues arising are encapsulated in the following rhetoric:
1) Where lies the efficacy of the federalism professed in section 2 (2) of the 1999 Constitution?
2) Does State Assembly lawmakers require external promptings to undertake their constitutional duties of checking the governors as spelt out in section 188?
3) If the EFCC induces impeachment proceedings (overtly or covertly) against erring Governors/Deputy Governors, who then induces such proceedings against a defaulting President or Vice-President where necessary?
While the EFCC-induced impeachments against alleged corrupt governors might be a cause for political victory for the governed, the scenario is a breach of the fundamental principle of federalism in a presidential system of government with supremacy of the constitution and if the trend is not handled cautiously it could lead to a subversion of the democratic process.
This brings forth the naughty issue of over-centralisation of security apparatus and the police currently being deplored at the whims and caprices of the Federal Government (FGN). The state governments have Chief Security Officers that do not control the security apparatus deplored in the state and even to guard them.
The negative effect of this was over-dramatised in the abduction case of Dr. Ngige, the former governor of Anambra state who lost out at the Election Appeal Tribunal after three years in office. The questions that have refused to go away are: Should the police force remain wholly under the absolute control of the FGN? If decentralised, what necessary measures are needed to avoid persecution and intimidation of political opponents by governors, who at present manifestly manipulate the federal security agents in their domain for alleged illegal motives?
The currently gale of impeachment sweeping across the country (while good enough to bring erring governors to book) is seen in some quarters as made possible by the monopoly of security apparatus by the Federal Government deployed to exert pressure on the lawmakers, thus the view that the anti-corruption campaign is targeted (rightly or wrongly) at those governors not in the good books of the FGN.
Ordinarily, the state assemblies and the National Assembly (NASS) need no overt or covert prompting or inducement from outside to initiate impeachment proceedings against the elected officers covered by the immunity clause in section 308 (3) of the 1999 constitution. The question that no plausible answer has been found to is “if the influence of federal government controlled security apparatus is borne to sanitise corruption at the state level (with or without trampling on the principle of federalism), then who facilitates such actions when and where necessary by exerting similar pressure on the NASS?”
The provisions of sections 188 and 143 of the constitution are unambiguously clear – it is the prerogative of the lawmakers. Where the lawmakers remain insensitive to rise up to the occasion, nonetheless accusations and counter-accusations against the political office holders where then lies the proper practical check against the executive office holders at the national level (bestowed with enormous constitutional powers) in a nascent democratic experiment where the ruling political party controls over 77% of the NASS?
The foregoing analysis makes the on-going investigation of the issues surrounding the Petroleum Technology Development Fund (PTDF) by the senate a mere academic exercise. If the allegations and counter-allegations in that regard are capable of justifying impeachment procedures against Mr. President and or Vice-President (as canvassed by the CNPP in the Punch newspaper edition of 09 October 2006) the two chambers of NASS need only to resort to exercise their powers under section 143 of the constitution.
But is the NASS capable of moving in such a direction? The answer, from all political permutations, is not in the affirmative considering the overbearing dominance of the ruling political party and the grip of the presidency on the federal lawmakers. And if NASS cannot practically exercise its powers under section 143, its on-going investigations of the PTDF issue is needless as it could only be consummated under section 88 of the constitution.
The efficacy of such investigations is overshadowed by section 88 (2) (a), which provides that investigations pursuant to oversight functions of NASS under section 88 can only lead to ameliorating existing law in whatever scope covered. The ineffectual status of section 88 investigations, reports and or pronouncements by NASS was covered in the case of elRufai v. House of Representatives, which was decided in 2006 wherein the Federal High Court sitting in Abuja held that the 2005 pronouncement of the House following an investigation on the NITEL/Pentascope management Contract (which purportedly sanctioned the FCT Minister) do not have any legally binding effect and was null and void abinitio.
In effect, whatever the NASS comes up with under a section 88 investigations can only result in advisory pronouncements to other arms of government, particularly the executive. In the case of section 89 which empowers the NASS to invite anybody in the course of its duty under section 88 and issue warrant of arrest (executable by the Inspector General of Police) against anybody that refuses to honour such invitation, section 308 of the constitution renders the provision inapplicable to elected political office holders covered by the immunity clause as in the case of the President/Vice-President and Governors/Deputy Governors.
Interpretation of the provisions of section 308 by the judiciary has been very strict as held in the case of Gani Fawehinmi v. Governor Tinubu of Lagos State where the court declined jurisdiction on that note. Until the Supreme Court’s original jurisdiction of interpreting the constitution is invoked, it seems the interpretation of the immunity provisions of the constitution would remain narrowly strict.
And if so, it is unimaginable how political office holders covered by section 308 could be sanctioned in real terms, while in office, even by the Code of Conduct Bureau empowered to sanction public officers who contravene any of the provisions of the fifth schedule of the constitution.
This is obvious in view of the fact that section 18 of the fifth schedule, which specifies the power of the Bureau, does not cover any sanctions relating to political office holders granted constitutional immunity under section 308. The aforementioned officers, with immunity, can bluff or ignore the Bureau as they deem fit without any repercussions while in office as long as they have their influence and grip on political machinery in their jurisdiction to ward off any backlash under sections 188 or 143 as applicable.
The negativity of the immunity clause in section 308 brings to bear the implications of a breach of section 1 (2) of the constitution by any of the public office holders so protected by the clause in a manner tantamount to treasonable felony. Section 1 (2) of the constitution provides thus: “The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution”.
This reminds us of the abduction of the Anambra State Governor in 2004. Another scenario is where a state government raises a vigilante group or local militia in violation of the provisions of the constitution or in confrontation with the rest of the federation. Could the Kano vigilante group established by the state government lead to such a charge against the state governor? The answer to this might not be forth coming as the issue is at the moment subjudice.
If there is evidence that governors in the Niger Delta are culpable in the militancy against the state (covertly or overtly), will the provisions of section 308 be observed particularly where the impeachment cannot be facilitated either practically or because of exigency of time?
It is important to note that even in the event of a proclamation of a state of emergency on a state of the federation by the FGN pursuant to provisions of section 305 of the constitution, as experienced in Plateau state in 2004, there is no settled judicial precedent to indicate that such affected political office holders (with immunity under section 308) would lose their immunity when the suspension of the political structures lasted as elicited in the case of Governor Dariye of Plateau State who could not be arraigned in court for money laundering (after jumping a police bail on similar allegation in London) while the state of emergency and his suspension from office as governor lasted.
While it is good to protect elected political office holders from frivolous litigations and witch hunting while in office, our experience in the last seven years has shown the need for a review of the constitution, particularly the influence of the FGN (which is obviously too strong and impugn on effective practice of virile federalism) such that independent investigation and prosecution of a sitting President/Vice-President; Governor/Deputy Governor could be carried out by independent prosecutors (appointed and capable of being dismissed only with recourse to the NASS) outside the ambit of the regular impeachment procedure in the constitution in a manner similar to the independent prosecution experienced by the former American President – Bill Clinton in the Monica Lewinsky saga. And for this kind of development to become manifest, an amendment of the constitution might have to be effected.
The big question is ‘could such or any amendments be attainable in view of the stringent amendment provisions in section 9 of the constitution?’
These are weighty constitutional questions begging for answer and capable of precipitating constitutional crises with political consequences of unimaginable dimensions. And worse still is the fact that the probability of the spotted lacuna in the constitution being amended during the present dispensation and before the 2007 general elections as being too remote.
This leaves the populace with only the choice of exercising their voting power in a more dynamic manner and remaining staunch and steadfast to defend their mandate in the 2007 elections to avoid the kind of close to one party state scenario foisted on the country since 2003. It is only when such a height is attained that an objectively corruption free nation state can be attained at all levels of Nigerian body polity and the relevant constitutional inadequacies in the exposition above could be exhaustively ameliorated through a constitutional overhaul if Nigeria must survive the dooms day prediction of a failed state.
Ajayi Olatunji Olowo writes from the School of Law, University of Buckingham in England.
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