Simplifying impeachment will check impunity, strengthen democracy

The root cause of pervasive corruption in the country is the absolute power each successive Nigerian President wields. As it stands today, our democracy is all about capturing power for the sake of it; it sadly has nothing to do with governance, much less good governance.

Having firmly and irrefutably established the basis of impeachment as a necessary tool of democracy, we can with this background proceed to examine the provisions of S. 143 of the constitution. The first major fatal defect of S.143 is that it reserves impeachment only as a weapon for “gross misconduct” in the performance of “official” not unofficial duties of the president and the vice president. This fails to address unofficial conduct that serves to seriously undermine or brings into disrepute the office of the president or vice president as the case may be.

The second and most fatal defect of S. 143 goes to the root of our jurisprudence that a person cannot be punished for an offence unless he has been tried and convicted and the trial must be open, fair and transparent in line with the principles of natural justice.

Although Section 143 gives the office holders the right of representation before the Panel of seven, the panel is not a court and regrettably there is no requirement that the panel must hold an open trial. Section 143 makes procedural injustice inevitable and procedural injustice is greater injustice in our jurisprudence than substantive injustice.

Also, contrary to the principles of natural justice, Section 143 does not make a clear separation between the body that accuses and the body that tries and convicts. This is a clear violation of the principles of “Nemojudex in causa sua” and a contradiction in terms as the constitution makes it the foundation of the administration of justice in Nigeria.

If it is the panel that tries and convicts, why would the framers of the constitution further require the panel’s report to be adopted by a resolution supported by not less than two-third members of the National Assembly (NASS) before an office holder who has been convicted by the panel can be impeached? It makes no sense. In another vein, if the NASS fails to garner two-thirds of its members to adopt the report of the panel, the office holder who has been convicted by the panel keeps his office. In that case, it would be that although the president or vice-president, as the case may be, has been convicted by the panel, the NASS fails to impeach and remove him from his office. That leaves us with a president or vice president who is a convict. That does not make sense either.

On the other hand, if it is the NASS that finally convicts by the two- third votes that secures the impeachment, is the NASS not a judge in its own cause having raised and passed the notice containing allegations of gross misconduct against the office holder before the panel is constituted by the Chief Justice of Nigeria (CJN)? The contradictions are such that space and time would not permit me to catalogue here.

Once the omnipotent Panel of seven is constituted by the CJN who himself is an appointee of the president and the panel reaches a decision, no authority not even the courts can question it. This may ridicule the NASS to the high heavens. It would be unprecedently ridiculous for a body consisting of 469 members to pass a resolution supported by two-thirds of its members only for a Panel of seven to throw it out. Where the panel decides that the office holder is guilty, it makes no sense referring the matter to the NASS for another round of debates and resolution adopting the decision of the panel. This is because each House of the NASS would have passed the notice containing the allegation of gross misconduct by two-thirds vote before the panel is constituted.

It is ludicrously strange that a panel appointed by the CJN, an appointee of the office holder who is alleged to have committed the impeachable offence, has the constitutional power to dictate to or supplant the most immediate representatives of the people of Nigeria, the Legislature. This has no precedence anywhere.

The net effect of S.143 of the constitution except perfunctorily construed is that the framers of our constitution failed to provide for impeachment. If they did, at all, they gave the powers to the CJN through his Panel of seven and ultimately to the president who appointed the CJN. This is totally unacceptable even in pretentious democracies because it makes the office holder who is alleged to have committed the impeachable offence a judge in his own cause against the principles of natural justice which is the cornerstone of our jurisprudence. Anyone in doubt should try activating the provisions of Section 143 of the constitution. The result would be the stark futility of his action starring him in the face.

As a responsible parliament we owe it a duty to make the democratic tool of impeachment more sophisticated in order to check abuse of power and corruption which is the order of the day regardless of who is for or against it. This can only be achieved if impeachment is made probable rather than likely.

Therefore, the proposed bill seeks to align the impeachment process with our jurisprudence and corpus jurist. It attempts to codify the impeachment procedure in the US where the House impeaches and the Senate serves as the court for all impeachment trials. It also obviates the need to constitute an omnipotent Panel of seven by the CJN. This is because impeachment as a democratic tool, as discussed earlier, is a form of political process over which no panel or the normal courts have jurisdiction except the legislature which consists of the most immediate representatives of the people.

Our experience is that in most cases, the courts have held, sometimes with dubious legal reasoning that, some provisions of our Standing Orders, made pursuant to the provisions of the constitution are unconstitutional. Consequently, any failure to elaborately capture the detailed process of impeachment in the constitution would leave the process to the mercy of the courts contrary to the accepted practice of representative democracy.

It is hoped that this article has highlighted the shortcomings of Section 143 of our constitution and the fact that it is incongruous with our corpus jurist and the legal principles that we dearly cling to.