Abstract

This article critically examines impeachment based on the Nigerian constitutional jurisprudence. The article reveals that contrary to common belief, there is neither a meaning of impeachment under the Nigerian Constitution nor a procedure for its execution and the Constitution is as well silent as to the person imbued with the power to impeach. It further reveals that the Constitution only mentions the consequence of impeachment and nothing more.The article makes comparative analysis between impeachment under the US constitution (since ours is fashioned after it) and removal under sections 143 and 188 of the Nigerian Constitution, but could not see any nexus between the two. Coupled with the fact the word impeachment and removal are used side-by-side in the Constitution and mostly separated with word “or”. This piece strenuously argues that there is a world of difference between the two words and, therefore, both cannot by any stretch of the imagination be used interchangeably. It relies on a Supreme Court decision delivered by one of our best, an eminent judicial icon, Hon Niki Tobi J S C, in proving the existence of a difference between the two words (impeachment and removal). The article observes that the word impeachment in the Constitution is superfluous, extraneous, meaningless and serves no useful purpose since it did not specify the person with the power to exercise same, and no procedure is spelt out for its execution. Can one put something on nothing and expect it to stay there? The thing will definitely collapse. Recommendations were made for the amendment of certain provisions of the Constitution, filling the lacunae therein.

The word “impeachment” has been misused as it were by a lot of people, including lawyers, judges, writers, etc. The usage has become so common that people appear not to care to find out the context and reasonableness of its existence in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This fact reared its ugly head most recently when on June 5, 2018, the joint-sitting of the two chambers of the National Assembly gave President Muhammadu Buhari about 12 demands, as condition for peace between it and the executive and threatened to invoke its constitutional powers against the President, if he fails to meet the demands. The media became awash with the description of the threat to mean impeachment.

The aim of this article is to clear misconceptions on impeachment vis-à-vis the Nigerian constitutional jurisprudence. The article shall give reasons why use of the word is inappropriate and shall suggest the word that ought to be used in lieu, as it were.

Impeachment and Nigerian constitution

The word impeachment is mentioned six times in the Constitution. The Constitution says a president or his vice and governor or his deputy shall not be entitled to pension if he leaves office by reason of impeachment. It also provides that vice-president and deputy-governor shall assume the office of the president and the governor, as the case may be, if he is impeached and that president and governor shall appoint anyone as his assistant if such assistant is impeached. See sections 84(5), 124(5), 146(1) & (3) (a) and 191(1) & (3) (a) thereof. They are the only things said by the Constitution with respect to impeachment.

What then is impeachment? In other words, what situation can we describe as impeachment?

The Constitution is silent on that. Since our constitution is modeled after the Constitution of the United States of America, let us try to get a clue from their constitution.

Impeachment under the United States’ constitution is provided under article 1 section 3 (6) & (7) and the definition by Black's Law Dictionary covers its provisions. It defines impeachment as follows:

“A CRIMINAL proceeding against a public officer, before a quasi-political court, instituted by a well-written accusation, called articles of impeachment. For example, a WRITTEN ACCUSATION OF THE HOUSE of REPRESENTATIVES of the United States to the SENATE of the United States against the President, Vice-President, or an officer of the United States, including federal judges.” (Capitalised for emphasis)

See The United States Supreme Court decision in Ritter v United States 84 Ct. Cl. 293 (1935) Cert. Denied, 300 US 32 . 653(1937). By Article II, Section 4 of the United States’ constitution, the Impeachment shall be for, and Conviction of, “Treason, Bribery, or other high Crimes and Misdemeanours.”

So far, only three presidents have been subjected to impeachment proceedings in the US. Two were impeached, but acquitted, and stayed in office: Andrew Johnson in 1868 and Bill Clinton in 1998 and 1999. A third, Richard M Nixon in 1974, resigned to avoid being impeached.

So, the combined effect of articles 1 section 3(6)&(7) of the US constitution and the definition of the Black’s Law Dictionary in respect of impeachment is that First, the House of Representatives votes on one or more articles of impeachment (a written accusation). If, at least, one gets a majority vote, the president is impeached - which essentially means being indicted.

Next, the proceedings move to the Senate, which holds a trial overseen by the Chief Justice of the Supreme Court. A team of lawmakers from the House, known as managers, play the role of prosecutors. The president has defense lawyers, and the Senate serves as the jury. If, at least, two-thirds of the senators find the president guilty, he is removed, and the vice-president takes over as president; but if acquitted, he shall remain the president.

Flowing from the US provision on impeachment, where then did Nigerians get the meaning of impeachment from? A holistic perusal of the provisions of the Nigerian constitution shows that nowhere is the meaning given nor the procedures of impeachment mentioned as is done in the United States constitution. The Nigerian constitution is also silent as to who can exercise the power of impeachment.

Is it reasonable to assume that the framers of the Nigerian constitution intended the procedures under US constitution be applied in Nigeria? The answer is a resounding no! If this was their intention, they would have clearly mentioned it. As our country is sovereign, so, too, our constitution; everyone shall always bow or kowtow to its sovereign nature: a sovereignty which gives rise to its supremacy over all laws of the land. We are concerned here with the interpretation of Nigerian constitution, so the provisions of the constitution of a different country cannot be read into it, no matter their historical tie. It would be indubitably ridiculous if that is done.

Does impeachment and removal mean the same thing under the Nigerian constitution?

This is where the confusion lies most. In fact, it is the basis of the confusion, because people use impeachment and removal interchangeably; suggesting that the two are the same. In other words, people tend to believe that by mentioning impeachment, they are referring to removal. Are they correct?

Perhaps, they refer to the procedures of removing the President or his vice and the governor or his deputy under section 143 and 188 of the constitution respectively as impeachment, because they are similar to the procedures of impeachment in the United States’ constitution. People might have thought that Nigeria adopted the impeachment process under the US constitution because of the historical and developmental link between the two.

But with profound respect, they cannot be correct. There is a world of difference between the Constitution of the United States and that of Nigeria in respect of the quorum for the removal of the office-holder. In the United States constitution, the quorum is two-thirds of the members present. In our Constitution, it is two-thirds of all the members of the House. Article 1 section 3 of the Constitution of the United States does not provide for the details of our sections 143 and 188. That apart, our sections 143 and 188 do not make provision for the situation in article 1, section 3(7) of the US constitution. It is also relevant to add that the number of words in article 1 section 6&7 with respect to procedures of impeachment are 103; that of sections 143 and 188 of the Constitution of the Federal Republic of Nigeria, 1999, are about 584 each. Besides, a careful examination of Sections 143 and 188 of the constitution shows that impeachment was not mentioned therein at all.

Other relevant sections of the constitution that mention impeachment are also not of any help, in supporting the view that impeachment is same thing as removal. Example: section 146 provides thus: “The vice-president shall hold the office of President if the office of President becomes vacant by reason of… impeachment...OR the removal of the President from office for any other reason in accordance with section 143 of this Constitution.”

Sub-section (3) (a) of section 146 further provides: “Where the office of vice-president becomes vacant by reason of… impeachment...OR removal in accordance with section 143 or 144 of this constitution;” President shall appoint a new vice-president. Section 191 makes similar provisions to that of section 146 in respect of the governor and his deputy.

It is obvious that impeachment and removal in the above sections appear side-by-side. And anywhere they appear, they are separated with the word “or”. The implication is that the words are to be construed disjunctively, not conjunctively. This position on the function of the word “or” in the Constitution or statutes was restated in the case of Nwaogwugwu v. President FRN (2007) All FWLR (Pt. 358) 1327 at 1356 as follows:

“The use of this word 'or' in a statute connotes disjunctive participle used to express an alternative or to give a choice of one among two or more things. The word always bears a disjunctive meaning in an enactment. It separates the provision preceding it from the provision coming after it. Its role is to show that the provisions in which it is appearing are distinct and separates one from the other: Abia State University v. Anyaibe (1996) 3 NWLR.

It the light of the foregoing, impeachment and removal cannot be used interchangeably. They are two distinct words under the Nigerian constitution. If they were intended to be the same, it would have been indicated, perhaps, by using them interchangeably in sections143 and 188 of the constitution and by not separating them with the word “or” in sections 146 and 191 of the constitution.

A distinguished law lord and an emeritus justice of the apex court, Niki Tobi J SC, was in agreement with the point this writer has laboured to make. He held in Inakoju v Adeleke (2007)4 NWLR (Pt. 1025) 423as follows:

“Section 188(1) and (2) does not provide for the word ‘impeachment’. The appropriate word is REMOVAL, although section 188(1) contains the verb ‘removed’. In the circumstances, the first relief should have used the word ‘REMOVAL’ in the place of ‘IMPEACHMENT’” (capitalised for emphasis)

Stressing the above, legendary Justice Tobi added: “Section 188… covers both civil and criminal conduct. I am not saying that the definition vindicates the totality of the impeachment provision of the United States constitution. It is my view that the word should not be used as a substitute to the removal provisions of section 188. We should call a spade its correct name of spade and not a machete, because it is not one. The analogy here is that we should call the section 188 procedure one for the removal of Governor or Deputy-Governor, not of impeachment.” (emphasis mine).

Conclusion and recommendations

Though the word impeachment, and who to be impeached, is mentioned in the constitution, however, the constitution is silent as to what impeachment exactly means.

Furthermore, the constitution did not specify who to exercise the power of impeachment. The law is that for anyone to exercise a power, he must establish that he got such power from either the constitution or any law or both see INEC v Musa (2003) 3 NWLR (Pt. 806) 72. Therefore, the person to impeach the President or his and governor or his deputy is unknown.

There are also no laid down procedures for impeachment.

The effect of the foregoing is that the word impeachment is baseless and meaningless under the Nigerian constitution. It appears the framers of the constitution themselves were not sure of what they were saying by mentioning impeachment on the mentioned sections of the constitution. The word impeachment has no practical relevance under the Nigerian constitution. This has once again brought to the fore the inadequacies of and the lacuna in the Nigerian constitution occasioned by its framers.

It is my view that sections 84(5) and 124(5) of the constitution, which make provision for denying president or his vice and governor or his deputy their pension respectively upon vacating office by reason of impeachment (whatever that means) are capable of causing constitutional crises.

The implication of the above loopholes (no meaning of impeachment, silence on who to exercise the power and the procedure for exercising such power) is that, impeachment has no leg to stand in Nigeria. The immutable pronouncement of Lord Denning in the case of Mcfoy v UAC (1961) 3 All ER 1169 at pg. 1172 that: “You cannot put something on nothing and expect it to stay there, it will collapse.” This expert opinion best illustrates the view.

See also the words of Justice Tobi in Owners v Adeniji (1993)2 NWLR (Pt 274) where he held as follows:

“One can add something to something, but one cannot add something to nothing because there will be nothing to receive the something. The something, which will have nothing to support it, will fall away, following Newton's law of gravity or gravitation.”

I recommend as follows:

Sections 143 and 188 of the constitution should be amended for the word impeachment be inserted so that it may be used interchangeably with “removal” or to stand as a replacement.

Alternatively, the above sections should not be tampered with, rather Sections 84(5), 124(5), be amended so that the word impeachment be removed and be replaced with removal in accordance with sections 143 and 188 of the constitution respectively. The word impeachment in sections 146(1) & (3) (a) and 191(1) & (3) (a) be removed because its existence in those sections is superfluous and prolix, playing only a cosmetic role.

It is further recommended that if a case is brought to court on the interpretation of either section 84(5) or 124(5) of the constitution or both at the time its amendment is yet to be effected, courts should interpret the word impeachment there in favour of the category of persons mentioned therein.

Lastly, I suggest that the word impeachment should not be used with reference to section 143 and 188 anymore, pending the amendment of the foregoing sections of the constitution. The correct word to be used is “removal”.•Chukkol, student, Faculty of Law, ABU, Zaria: 08032470318 or oliverchukkol@gmail.com

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