Impeachment is a formal process in
which an official is accused of unlawful activity, the outcome of which,
depending on the country, may include the removal of that official from office
as well as criminal or civil punishment. The word "impeachment" derives
from Latin roots expressing the idea of becoming caught or entrapped, and has
analogues in the modern French verb empêcher (to prevent)
and the modern English impede. Medieval popular
etymology also associated it (wrongly) with derivations from the Latin impetere
(to attack). (In its more frequent and more technical usage, impeachment of a witness means challenging the honesty or
credibility of that person.)
The impeachment process should not be
confused with a recall
election, which is
usually initiated by voters and can be based on "political charges",
for example mismanagement. Impeachment is initiated by a constitutional body
(usually legislative) and usually—but not always—stems from an indictable
offense. The steps that remove the official from office are also different.
Impeachment was first used in the
British political system.[citation needed] Specifically, the process was first used by the
English "Good
Parliament"
against Baron Latimer in the second half of the 14th century. Following the
British example, the constitutions of Virginia (1776), Massachusetts (1780) and
other states thereafter adopted the impeachment mechanism; however, they
restricted the punishment to removal of the official from office. In
private organizations, a motion to impeach can be used to prefer charges.[1]
Impeachment resolutions made by members of
the House of Representatives are turned over to the House Judiciary Committee
which decides whether the resolution and its allegations of wrongdoing by the
President merits a referral to the full House for a vote on launching a formal
impeachment inquiry.
The entire House of Representatives votes
for or against a formal impeachment inquiry, needing only a simple majority (a
single vote) for approval.
If approved, the House Judiciary Committee
conducts an investigation to determine (similar to a grand jury) if there is
enough evidence to warrant articles of impeachment (indictments) against the
President. The Committee then drafts articles of impeachment pertaining to
specific charges supported by the evidence. The Committee votes on each article
of impeachment, deciding whether to refer each article to the full House for a
vote.
If the House Judiciary Committee refers one
or more articles of impeachment, the entire House of Representatives votes on
whether the article(s) merit a trial in the Senate, needing only a simple
majority for approval.
If the full House approves at least one
article of impeachment, the President is technically impeached and the matter
is referred to the U.S. Senate. The House then appoints members of Congress to
act as managers (prosecutors).
The trial of the President is held in the
Senate with the Chief Justice of the U.S. Supreme Court presiding. The
President can be represented by anyone he chooses. He may appear personally or
leave his defense in the hands of his lawyers.
The entire Senate may conduct the trial or
it or it may be delegated to a special committee which would report all the
evidence to the full Senate.
The actual trial is conducted in a
courtroom-like proceeding including examination and cross-examination of
witnesses. During questioning, Senators remain silent, directing all questions
in writing to the Chief Justice.
After hearing all of the evidence and
closing arguments, the Senate deliberates behind closed doors then votes in
open session on whether to convict or acquit the President. The vote to convict
must be by a two thirds majority, or 67 Senators. If this occurs, the President
is removed from office and is succeeded by the Vice President. The Senate's
verdict is final and there is no right of appeal.
For
some time now, there have been calls from the opposition and their internet
foot soldiers for the president to be impeached. The hue and cry has been so
much that even people who do not know what steps are involved in the process of
impeaching the president have joined the fray calling the National Assembly to
impeach GEJ. This set of people think that the National Assembly on its own has
the power to sit and impeach the president with immediate effect.
For
those who think it is that easy, let's visit The 1999 constitution of the
Federal Republic of Nigeria Chapter 6 (section:143).
143.
(1) The President or Vice-President may be removed from office in accordance
with the provisions of this section.
(2)
Whenever a notice of any allegation in writing signed by not less than
one-third of the members of the National Assembly:-
(a)
is presented to the President of the Senate;
(b)
stating that the holder of the office of President or Vice-President is guilty
of gross misconduct in the performance of the functions of his office, detailed
particulars of which shall be specified,
the
President of the Senate shall within seven days of the receipt of the notice
cause a copy thereof to be served on the holder of the office and on each
member of the National Assembly, and shall also cause any statement made in
reply to the allegation by the holder of the office to be served on each member
of the National Assembly.
(3)
Within fourteen days of the presentation of the notice to the President of the
Senate (whether or not any statement was made by the holder of the office in
reply to the allegation contained in the notice) each House of the National
Assembly shall resolve by motion without any debate whether or not the allegation
shall be investigated.
(4)
A motion of the National Assembly that the allegation be investigated shall not
be declared as having been passed, unless it is supported by the votes of not
less than two-thirds majority of all the members of each House of the National
Assembly.
(5)
Within seven days of the passing of a motion under the foregoing provisions,
the Chief Justice of Nigeria shall at the request of the President of the
Senate appoint a Panel of seven persons who in his opinion are of
unquestionable integrity, not being members of any public service, legislative
house or political party, to investigate the allegation as provide in this
section.
(6)
The holder of an office whose conduct is being investigated under this section
shall have the right to defend himself in person and be represented before the
Panel by legal practitioners of his own choice.
(7)
A Panel appointed under this section shall -
(a)
have such powers and exercise its functions in accordance with such procedure
as may be prescribed by the National Assembly; and
(b)
within three months of its appointment report its findings to each House of the
National Assembly.(cool Where the Panel reports to each House of the National
Assembly that the allegation has not been proved, no further proceedings shall
be taken in respect of the matter.
(9)
Where the report of the Panel is that the allegation against the holder of the
office has been proved, then within fourteen days of the receipt of the report
at the House the National Assembly shall consider the report, and if by a
resolution of each House of the National Assembly supported by not less than
two-thirds majority of all its members, the report of the Panel is adopted,
then the holder of the office shall stand removed from office as from the date
of the adoption of the report.
(10)
No proceedings or determination of the Panel or of the National Assembly or any
matter relating thereto shall be entertained or questioned in any court.
(11)
In this section -"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 of the National Assembly to gross misconduct.
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Once again, the calls for the impeachment of the sitting
Nigerian president fill the air. Newspapers report threats tossed boldly into
the air before the party uttering such thoughts bravely depart for new
adventures in politics. The country is again gripped by an interesting,
almost seasonal fever, last experienced when Mr. Nzeribe, a Federal Senator,
threatened to impeach Mr. Obasanjo, the Federal President. Given the
political winds such a threat might unleash, it might be interesting to
understand how to impeach a member of the Executive branch.
The Constitution of the Federal Republic of Nigeria
(Chapter 6, Section 143) prescribes a clear process for impeaching the
President and/or the Vice-President. The most primary crime for which the
president and his deputy can be axed for is gross misconduct. Gross
misconduct is defined by sub-section 11 (Chapter 6) 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.” What
the definition of gross misconduct makes quite clear is that it presents the
National Assembly with significant leeway regarding how to define it, and by
implication, what standards of evidence to deploy in service of such a
definition. Logically, it immediately raises the question: can all the myriad
accusations recently leveled against Mr. Obasanjo’s administration,
particularly the alleged bribe of National Assembly members, constitute gross
misconduct? What will the charges be, curious minds will ask! Your guess is
indeed as good as mine!
Naturally, the corollary of such a question is what
constitutes appropriate conduct? Public opinion on what constitutes
appropriate conduct should not be too divided as all Nigerian agree that the
President is tasked with advancing the cause of equity, social justice,
prosperity and the citizen’s pursuit of happiness. However these are but
general principles and it is important to drill down to specific examples
because in detail lies reality or the devil. Thankfully, the Constitution
(Chapter 2, Section 15) provides a rather specific and representative example
of what could be termed the appropriate role of the state and its executive
representative. It states clearly that “the State shall abolish all corrupt
practices and abuse of power.”
Now, if Mr. Obasanjo and the Vice-President Mr. Atiku are
the custodians of state policy and power – constitutionally focused on the
stamping out of corruption and the abuse of power – it stands to reason that
each individual can be held responsible for a failure to enforce the
Constitution. This charge naturally is independent of and in addition to a
potential charge of willfully violating the provisions of the Constitution.
And if indeed, such is the case, what is the process for punishing
negligence, for example? Again, the 1999 Constitution makes it quite clear
and it is perhaps best to quote verbatim from Chapter 6 (Section 143)
143.
1. The President or Vice-President
may be removed from office in accordance with the provisions of this section.
2. Whenever a notice of any
allegation in writing signed by not less than one-third of the members of the
National Assembly:-
(a) is presented to the President
of the Senate;
(b) stating that the holder of the
office of President or Vice-President is guilty of gross misconduct in the
performance of the functions of his office, detailed particulars of which
shall be specified, the President of the Senate shall within seven days of
the receipt of the notice cause a copy thereof to be served on the holder of
the office and on each member of the National Assembly, and shall also cause
any statement made in reply to the allegation by the holder of the office to
be served on each member of the National Assembly.
3. Within fourteen days of the
presentation of the notice to the President of the Senate (whether or not any
statement was made by the holder of the office in reply to the allegation
contained in the notice) each House of the National Assembly shall resolve by
motion without any debate whether or not the allegation shall be
investigated.
4. A motion of the National Assembly
that the allegation be investigated shall not be declared as having been
passed, unless it is supported by the votes of not less than two-thirds
majority of all the members of each House of the National Assembly.
5. Within seven days of the passing
of a motion under the foregoing provisions, the Chief Justice of Nigeria
shall at the request of the President of the Senate appoint a Panel of seven
persons who in his opinion are of unquestionable integrity, not being members
of any public service, legislative house or political party, to investigate
the allegation as provide in this section.
6. The holder of an office whose
conduct is being investigated under this section shall have the right to
defend himself in person and be represented before the Panel by legal
practitioners of his own choice.
7. A Panel appointed under this
section shall -
(a) have such powers and exercise
its functions in accordance with such procedure as may be prescribed by the
National Assembly; and
(b) within three months of its
appointment report its findings to each House of the National Assembly.
8. Where the Panel reports to each
House of the National Assembly that the allegation has not been proved, no
further proceedings shall be taken in respect of the matter.
9. Where the report of the Panel is
that the allegation against the holder of the office has been proved, then
within fourteen days of the receipt of the report at the House the National
Assembly shall consider the report, and if by a resolution of each House of
the National Assembly supported by not less than two-thirds majority of all
its members, the report of the Panel is adopted, then the holder of the
office shall stand removed from office as from the date of the adoption of
the report.
10.
No
proceedings or determination of the Panel or of the National Assembly or any
matter relating thereto shall be entertained or questioned in any court.
The process is clear. If the president and/or his
Vice-President are to be impeached, the process will last approximately 5
months if drawn out (assuming the investigating panel actually spends 3
months compiling its report). That means that, assuming the House of Assembly
started its proceedings against Mr. Obasanjo, Nigeria will remain in a
political crisis until April 2001. Perhaps, if the country is perversely
lucky, the proceedings will be complete in March 2001, paving the way for an
Ides of March end to the Obasanjo Administration. That would indeed be the
perfect touch of irony as Mr. Obasanjo was arrested in March 1995 for
plotting against Mr. Abacha, then the Head of State. One then must ask, are we
indeed that callous or is this just a case of a cruel twist of fate and
coincidence? Or is a case of insisting or demonstrating that the President
and the Vice-President, when they swore to defend the Constitution that
lovely day in May 1999, did not really understand the social contract they
signed up for, and the consequences of failing to deliver on it? My view is
simple: as elected representatives of the electorate, the National Assembly
must act quickly to either exonerate the Executive or find him guilty. Either
way, the Constitution, albeit flawed in the eyes of a majority of Nigerians,
though that does not justify violating it, must be enforced.
Thus, the burning question remains this: will the National
Assembly make the move? Does it possess enough legally admissible evidence to
conclusively prove a direct link between the alleged bribery attempts and the
principal Executive officers? Assuming such evidence does exist and is
admissible, will the leadership of the National Assembly conclude that a scorched
earth policy is necessary in light of its own alleged internal contradictions
(read corruption scandal)? The questions and issues fascinate from an
analytical and strategy perspective but irrespective of the outcomes, the
people of Nigeria would have unwittingly made another historic gain in terms
of a strengthened resolve to dismantle the corrupt, lecherous and obsessive
system of power at the heart of modern Nigeria.
|
ubmit
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” (⅓) 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 ⅓ members
to initiate impeachment proceedings is lower than the ⅔ 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 ⅔ 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.
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