Impeachment: Genuine or mischievous? (2)

IT is settled principle in law that the Constitution is the supreme law of the land and the failure to follow any of its provisions renders any steps taken unconstitutional, null and void. In HOPE DEMOCRATIC PARTY (HDP) V. MR. PETER OBI & 5 ORS (2011) 12 SC (PT. II) 162, the Supreme Court stated that: ‘’The Constitution is the supreme law of the land; therefore, the provisions are superior to every provision embodied in any Act or law and are binding on all persons and authorities in Nigeria. The failure to follow any of the provisions renders the steps taken unconstitutional, null and void. Such Act must be set aside by the court.’’ The courts have also held that supremacy of the legislature is subject to the overall supremacy of the Constitution and the legislature must exercise its powers within the limits of the provisions of the CFRN.

Please see the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR V. BALARABE MUSA & ORS (2003) 1 SCM 62, where it was held that: ‘’The supremacy of the National Assembly is subject to the overall supremacy of the Constitution. Accordingly, the National Assembly in which the Constitution vests powers cannot go outside or beyond the Constitution. Where a situation arises, the Court will, in an action by the aggrieved party, pronounce the act unconstitutional, null and void.’’ Placing reliance on the above-cited decisions of the Supreme Court, it is indisputable that the House of Assembly of a State must strictly comply with all listed procedure in Sections 188(1) – 188(9) of the CFRN before it can lawfully and constitutionally remove a person from the office of Governor or Deputy Governor. InINAKOJU & 17 ORS V. ADELEKE & 3 ORS (2007) 1 SC (PT. I) 1 @ PG. 135, LINE 5, it was stated that: ‘’The provisions of Section 188(1) to (9) must be strictly complied with before a Governor or Deputy Governor can be constitutionally removed from office.’’

Please also hear his Lordship Ogbuagu, JSC at PG. 222-223 @ LINES 40-15, where his Lordship held that: ‘’It can be seen that the draftsmen, were alert in respect of the seriousness or magnitude of the removal of a Governor or his Deputy. They chose their words and every word in this section or provision, is weighty and material. Therefore, in the removal of such officers, the procedure clearly specified, must be followed and strictly complied with before such removal becomes valid and constitutional. Any breach of any of the said provisions surely and certainly renders such removal ineffective, null and void and of no effect. It is now settled firstly, that where a statute or Constitution, prescribes a procedure for seeking a remedy or the doing of anything or act and the language used is clear and unambiguous, (as in the above section) that is the only procedure open to the parties concerned and any departure therefrom, will be an exercise in futility.’’

It is thus clear that not all the conditions in Section 188(1) – 188(9) of the CFRN have to be breached before the impeachment can be declared unlawful and unconstitutional. A breach of any one of the conditions in Section 188(1) – 188(9) of the CFRN by the House of Assembly of a State is enough to render an impeachment unlawful and unconstitutional. Please see the case of INAKOJU & 17 ORS V. ADELEKE & 3 ORS (SUPRA) @ PG. 83 LINES 1 – 5, where it was held that: ‘’I should briefly take the above, not before I make an important point that all the above conditions need not be breached before a Court of law can hold that the procedure is unconstitutional. Breach of one condition is enough.’’

Whether or not our law courts have the jurisdiction to interfere with the impeachment of a governor or his deputy under the CFRN

A reading of Section188(10) of the CFRN is likely to give some the false impression that our courts do not have the jurisdiction to interfere with the impeachment process. For the sake of emphasis, Section 188(10) of the CFRN 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.’’ In the case of ABARIBE V. SPEAKER, ABIA STATE HOUSE OF ASSEMBLY (2000) FWLR (PT. 9) 1558 the Court of Appeal interpreted the above-quoted section to mean that our law Courts do not have the jurisdiction to interfere with the impeachment proceedings of the Governor or his Deputy. The Court of Appeal’s position was that the reason why the CFRN ousted the interference of the courts in impeachment proceedings is because impeachment proceedings are political matters which should be left in the hand of the politicians and not the Courts. However, the Court of Appeal’s decision in the ABARIBE’s case has not stood the test of time and same is no longer good law.

The Supreme Court in the case of INAKOJU & 17 ORS V. ADELEKE & 3 ORS (SUPRA) while interpreting the provisions of Section 180(10) of the CFRN applied the principle of statutory interpretation which states that a subsection is only a part of a section, hence same cannot be read in isolation but must be read in the context of the other subsections. The Court was of the view that Section 180(10) of the CFRN cannot be considered in isolation to the provisions of Sections 188(1) – 188(9) of the CFRN. All the said sections must be given a holistic reading before the true intention of the lawmakers in Section 188(10) of the CFRN can be deciphered.

The apex court took the position that a holistic of Sections 188(1) – 188(10) of the CFRN reveals that the provisions of Sections 188(1) – 188(9)of the CFRN are condition precedents which must be complied with before the jurisdiction of the court can be ousted pursuant to Section 188(10) of the CFRN. The court held that:

‘’It must first of all be understood that the entire Section 188 sub-sections 1-11 must be read together. And a proper reading of the whole section will reveal that the ouster clause in sub section (10) can only be properly resorted to and invoked after due compliance with subsections (1)-(9) that preceded it.’’ The Supreme Court followed its decision in INAKOJU V. ADELEKE in the subsequent case of DAPIANLONG & 5 ORS V. DARIYE & ANOR (2007) 4 SC and EKPENYONG V. UMANA (2010)

Following the forgoing, it is my humble opinion placing reliance on all the above-cited decisions that our law courts have the jurisdiction to interfere with and nullify any impeachment done in violation of the provisions of the CFRN. However the jurisdiction of the Courts is limited to investigating whether or not the impeachment was done in compliance with the provisions of the CFRN. Where an impeachment was done in strict compliance with the provisions of the CFRN, particularly the provisions of Section 188(1) – 188(9) of the CFRN, the courts pursuant to Section 188(10) of the CFRN would have no jurisdiction to interfere or disturb the said impeachment.

Conclusion

The salient points articulated in this article could be summarised as follows: 1. The procedure of the impeachment of the Governor or his Deputy is listed under Sections 188 of the CFRN. 2. The House of Assembly must comply with all the provisions listed under Sections 188(1) – 188(9) of the CFRN before it can lawfully and constitutionally remove a person from the office of Governor or Deputy Governor. 3. A breach of any even one of the conditions in Section 188(1) – 188(9) of the CFRN by the House of Assembly of a State is enough to render an impeachment unlawful and unconstitutional. 4. A breach of any of the fundamental provisions in the CFRN would also render an impeachment unlawful and unconstitutional. 5. The Courts have the jurisdiction to interfere with an unlawful/unconstitutional impeachment. 6. The jurisdiction of the courts is limited to investigating whether or not the impeachment was done in compliance with the provisions of the CFRN, particularly Sections 188 of the CFRN. 7. Where an impeachment was done in strict compliance with the provisions of the CFRN, particularly the provisions of Section 188(1) – 188(9) of the CFRN the Courts pursuant to Section 188(10) of the CFRN would have no jurisdiction to interfere or disturb the said impeachment.

Finally, following all the above-said it is hoped that Politicians will keep within the confines of the law at all times. If they fail to do this, the Courts will be right to intervene to uphold the rule of law. His Lordship, Musdapher, JSC (as he then was) in INAKOJU V. ADELEKE (SUPRA) @ PG. 185, LINES 20-30, held that: ‘’Whenever politicians begin to engage in self-destruction, bastardizing the rule of law and the flagrant abuse and disregard of the Constitutional provisions, the courts have the duty as the guardians of the Constitution to intervene and appropriately pronounce on the legality of the legislative function be it impeachment or otherwise.’’

AARE AFE BABALOLA, OFR, CON, SAN, LL.D

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