Procedural and Substantive Rules for Impeaching Governors in Nigeria

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Tuesday, August 26 2014 12.01 PM /  By Olumide K. Obayemi


I read and share the concern expressed by Mrs May Agbamuche-Mbu in her treatise entitled: “Impeachment: The Need for Constitutional Review” in ThisDay Law of August 19, 2014.  Not only is the use of impeachment procedure historically redundant, a review of the present constitutional provisions dealing with impeachment process under Section 188 of the Constitution of the Federal Republic of Nigeria, that allow for a unicameral legislature, show that amendments are desirable and necessary.


We submit that the impeachment procedure at the State level be expunged from the Constitution. In the alternative, far-reaching constitutional amendments should be effected. First, the arrogation of the sole powers of impeachment of an incumbent Governor, to the House of Assembly, without another reviewing institution, evinces a failure of necessary constitutional checks and balances. Thus, we argue for the introduction of bicameral legislative system under section 188. In other words, the impeachment process may be retained with the States’ Houses of Assembly. However, it is proposed that once a Governor is found guilty of impeachable offences, a separate “trial” should take place before a second legislative institution, similar to what obtains in the United States. In the United States, generally, State legislatures can impeach state officials, including governors. Thus, though trial court for trying impeachments differs somewhat from the federal model, in New York which also operates a bicameral legislative system, for instance, the State Assembly (lower house) impeaches the Governor, while the State Senate tries the case. Further, the members of the seven-judge New York State Court of Appeals (the state's highest, constitutional court) also sit with the senators as jurors during the “impeachment trial” as well.


Second, in the alternative, should the introduction of a second-tier legislative (bicameral) house be too expensive for the individual States’ financial budgets, we argue that decisions as to the provisional impeachment of an incumbent Governor by the States’ Houses of Assembly be referred to the Federal House of Senate before its finality.


Third, we demand that present section 188(5) conferring, on the House’s Speaker, the sole discretion of selecting the seven (7) member panel to investigate allegations underlying impeachment process be amended, and that the Panel be comprised of highest serving Justices of the Superior Court of the affected State.


Fourth, irrespective of whether or not our proposal for bicameralism is accepted, we further propose another constitutional amendment of Section 188(10) to the effect that a decision to impeach an incumbent Governor by the Houses of assembly be reviewable by a Panel of the Court of Appeal having jurisdiction over the state.


The original impeachment procedure as operated during the 1st Republic was fashioned after the British Parliamentary system, albeit, at a time when the system, itself had become redundant and useless in Britain. Thus, the British Parliament, from whose historical practice and Conventions our own 1st Republic’s rules and practice were largely received, was in its origins a High Court of Parliament.


A detail historical examination would show that the earliest ancestor of Parliament was the mediaeval Curia Regis, in which judicial, executive and legislative functions were fused, and this derived ultimately from the pre-Norman conquest, Anglo-Saxon, Witan. However, with Oliver Cromwell’s battles, the process of attrition of the judicial functions of Parliament was well under way by the 14th century and was completed with the outcome of the great English constitutional battles of the 17th century.


Nigeria’s 1979 and 1999 constitutions were fashioned after the United States’ Presidential Constitution, which, in itself, was heavily influenced by 17th century English Puritan (Cromwell) constitutional theory, and also directly incorporated the English constitutional institution of Impeachment in its Article II. Yet, as we must note, this was at a time when that institution of Impeachment had virtually disappeared in Great Britain itself.


Legal historians have argued that the Impeachment process was dead and buried in Britain as of the 18th century as evidenced that the fact that the last two British cases of Impeachment – of Governor-General Warren Hastings in 1787, and Admiralty Treasurer Lord Melville in 1805, – both ended in acquittal.


Further, it has been shown that the power of Impeachment had become politically redundant and unnecessary by the 18th century, especially, with the development of the principle of Ministerial responsibility before an elected House of Commons.


Thus, there is little doubt that, in its "classical" constitutional use in England, Impeachment, together with its constitutional analogue, Attainder, became high political acts of judgement only against the King’s Ministers, rather than legal trials in the strict sense in which issues of criminal conduct would have to be proved.


With the redundancy of the Impeachment process, especially in contemporary Nigeria, we submit that the Nigerian States’ legislature be subjected to the constitutional principle that was reinforced by the unhappy experiences of the European countries in the between-the-two-World-Wars era: That is the obligation of political self-restraint of Parliamentary majorities in regard to minority parties represented in their chambers.


Coming back to section 188 of the Nigerian Constitution, it provides that either the State Governor or the Deputy Governor may be removed from office whenever a notice of any allegation in writing signed by “not less than one-third of the members” () of the House of Assembly stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office with detailed particulars of the alleged “gross misconduct” specified. Compared with Article 61 of the Constitution of India and Sections 2&3 of Article XI of the 1987 Constitution of the Philippines, the Nigerian threshold of members to initiate impeachment proceedings is lower than the threshold stated under both the Indian and Philippines constitutions.


Further, section 188(11) further states that "gross misconduct" means 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 wide latitude accorded to Nigerian legislators can be compared with Section 2 in Philippines stating thus:


The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officer and employees may be removed from office as provided by law, but not by impeachment.”


Similarly, in India, under Article 61(1), a President may be impeached for violation of the Constitution. By clearly specifying the grounds for impeachment, the Indian and Philippines Constitution abrogate uncertainty and ambiguities contained under Nigerian Section 188.


Section 188 goes on to state that the speaker of the House of Assembly shall, within 7 days of the receipt of the notice, copies of the notice shall be served on the Governor/Deputy and on each House member. Where a statement is made in reply to the allegation, such statement shall be served on each House member.


Under section 188(3)&(4), within 14 days of the presentation of the notice to the House’s Speaker (with or without reply statement to the allegation contained in the notice, the House of Assembly must resolve by motion, whether or not to investigate the allegations. If the House decides to investigate, a motion of not less than two-thirds majority is required.


Further, within 7 days of the motion, the State’s Chief Judge, at the request of the Speaker, shall appoint a Panel of 7 persons who in the speaker’s opinion are of unquestionable integrity, and who are not members of any public service, legislative house or political party, to investigate the allegation. The Governor/Deputy whose conduct is being investigated has the right to personally defend himself or by an attorney of his own choice.


Under Section 188(7)&(8), the Panel shall has 3 months to present its report and findings to the House. Where the allegation has not been proved, no further proceedings shall be taken in respect of the matter.


Finally, under Section 188(9), where the Panel’s report states that the allegation has been proved, then within 14 days of receiving the report, the House shall consider it, and upon a members’ resolution adopting the Panel’s report, then the Governor/Deputy shall stand removed from office as from the date of the adoption of the report.



Curiously, section 188(10) provides 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.


As stated above, section 188(10) ousting judicial review should be expunged from the constitution. The principle of Nemo Judex in Casua Sua, a person can not be a judge in his own case is very important. The oversight of the judiciary in the removal of the executive by the legislature is important.


Again, we make a strong call for total expungement of the impeachment provisions against the State Governors on the ground of redundancy.



* Dr. Olumide K. Obayemi is with the Faculty of Law, Lagos State University.


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