Impeaching State Executives - A Closer Look at Sections 188 and 192 of Nigeria's 1999 Constitution

Mobolaji E. Aluko, Ph.D.

Burtonsville, MD, USA

October 11, 2006

Dear Compatriots:

The impeachment proceedings of any Governor and Deputy Governor are subject to Section 188 of Nigeria's 1999 Constitution. Although the cases of the Ekiti State personalities Fayose and Olujimi are immediately of interest here, the discussion will be cast in a more general light as much as possible.

Assuming that an impeachment notice has been served on the accused and properly responded to, it is proper here to continue at the appointment of the Panel of seven persons by the Chief Judge. Their choice is ENTIRELY at the discretion of the Chief Judge, which persons.."... in his opinion are of unquestionable integrity", even if we THE PEOPLE question their integrity.

But what does "integrity" of a mother mean if perchance the Chief Judge chooses her to be on a panel to judge a case of her son who is the governor? Or the "integrity" of a close friend of the governor? Must "integrity" then not be in context? Does "integrity" here mean that the Chief Judge has convinced himself that the mother has SUCH integrity that it trumps family relationship?

I think not, and no reasonable person can assume that the CJ has an infinite lattitude to pack the Panel.

Just as a jury takes the place of a judge and should be adjudged to be a mix of reasonably unbiased persons with integrity RELATIVE TO THE CASE AT HAND, so must this Panel, even where the discretion of the CJ is not questioned. The CJ cannot "pack" a court with people of integrity! :-)

However, all is not lost at this time: the State Assembly (SASS) still has a stalling ace, since Section 188 (7)(a) states that the " Panel appointed under this section shall have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly." Thus without prescription, there are no powers: the panel is an empty suit, no pun intended.

But can the SASS stall for ever? That would leave the accused in place for ever. Can it use its powers to request the resumes or curriculum vitae (CV) of the panelists, and the basis of their choice, and then ask for a variation of the composition if bias is proved? The CJ may or may not accede. If bias is proved, should the SASS not, in the interim, invoke Section 292 (a)(ii) and (b) report the Chief Judge to the National Judicial Council for lack of integrity in composing a biased panel and then cause the Governor to dismiss the Chief Judge and appoint another?

Yes, the Governor, who through Section 292(a)(ii) can be compelled to so act "on an address supported by two-thirds majority of the House of Assembly of the State, Praying that [the Chief Judge] be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct ;"

All of this might take time, and again leave the accused governor (and deputy) in place, who would be strange judges in their own cases.

My advice is that despite the claim of bias, the State Assembly accusers in the case of Ekiti State, should proceed with the case before the panel, and may surprise the Panel by such overwhelming evidence that it would have no choice but to return a verdict against their own biased interest, or else cause them to return a howler verdict. If the proceedings were to continue, however, the Panel might want to take all of three months, since Section 188(7)(b) states that : " the Panel, shall,... within three months of its appointment, report its findings to the House of Assembly." Thus, to prevent such an eventuality, it is crucial that the SASS's prescription MUST include a time limit to the reporting back - say one week or two - which would still be "within three months", which was never meant to mean "at the end of three months."

Finally, suppose, in a worst-case scenario, the Panel DARE to COMPLETELY exonerate the accused governor and/or Deputy Governor? If that were the case, they would state that following Section 188(8) " the allegation has not been proved, [and hence] no further proceedings shall be taken in respect of the matter. " Thus a new panel would not be able to be formed on the "matter." It would appear that in that case the hands of the SASS would be completely tied.

That could cause a major problem [say in Ekiti State] if followed through.

But does that determination by the administrative panel really matter? Is that the end of the story? Absolutely not, since the State Assembly has the FINAL SAY, and is protected by Section 188(10) which states 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. "

This is a monster ouster clause reminiscent of military rule.

So from all the above, we see that our 1999 Constitution is somewhat a confused amalgam of prescriptions, and that there is a lot of murkiness in the future of these particular proceedings.

However, all hope is not lost in Ekiti State: the fat person has not yet sung, but we must closely watch the parting of the curtains for her arrival on stage.

Best wishes all.

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APPENDIX

Sections 188 and 192 of Nigeria's 1999 Constitution

188. (1) The Governor or Deputy Governor of a state may Removal of Governor be removed from office in accordance with the provisions or Deputy Governor of this section. from office.

(2)

Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly.

(b)

stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified.

the speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of 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 House of Assembly.

(3)

Within fourteen days of the presentation of the notice to the speaker of the House of Assembly (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice-, the House of Assembly shall resolve by motion, without any debate whether or not the allegation shall be investigated.

(4)

A motion of the House of 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 the House of Assembly.

(5)

Within seven days of the passing of a motion under the foregoing provisions of this section, the Chief judge of the State shall at the request of the speaker of the House of Assembly, 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 provided 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 or be represented before the panel by a legal practitioner 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 House of Assembly; and

(b)

within three months of its appointment, report its findings to the House of Assembly.

(8)

Where the Panel reports to the House of 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, the house of Assembly shall consider the report, and if by a resolution of the House of 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 form office as from the date of the adoption of the report.

(10)

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.

(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 in the House of Assembly to gross misconduct. ......

292. (1) A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances -

(a) in the case of -

(i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.
(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State,
Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;
(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.
(2) Any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria.

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Impeaching State Executives - A Closer Look at Sections 188 and 192 of Nigeria's 1999 Constitution