…Okorocha’s
abuse of impeachment clause under 1999 constitution as amended, a call for
concern.
The
beauty of democracy rests largely on inbuilt checks and balances. It also
provides the latitude for the minority to have their say, while the majority
has its way.
In
theory, there is a separation of powers between the Executive, the Legislature
and the Judiciary which constitute the three arms of government. However, in
practice, what exists is inter-dependence.
Every
democratic society has mechanisms that checkmate its leaders from becoming
autocratic. This is in consonance with the words of Lord Acton that “Power corrupts, and absolute power corrupts
absolutely”.
Nigeria,
like most democratic societies, has one of such mechanisms and this is known as
‘’impeachment’’. Unfortunately, this
mechanism almost broke the slender body of Nigeria’s burgeoning democracy
between 2005 and 2007, when the process of impeachment was grossly abused.
Today, Okorocha is working towards the same light.
The impeachment clause is a major weapon of
check-and-balance in the Nigerian 1999 Constitution to check the abuse of
enormous executive powers exercised and exercisable by elected functionaries of
the executive arm of government the President, Vice President, Governors and
Deputy Governors, who are shielded from prosecution from criminal and or civil
charges (in their personal capacities) while in office as contained in the
provisions of section 308 of the constitution. From legal statutory interpretation point of
view, it is instructive to note that the provisions of section 308 is meant to
protect the aforementioned office holders from frivolous litigations that could
otherwise distract them from focusing on proper governance. It is not and would not have been the
intention of the framers of the constitution that the executive office holders
should hide under the immunity clause in section 308 to commit crime against
the citizenry and the state in any manner whatsoever (yet Okorocha has done
worse than this and left to roam about freely). Neither would it have been
the intention of the constitution to shield executive office holders from legal
repercussions where issues of gross misconduct tantamount to treason contrary
to provisions of section 1 (2) of the constitution is involved. As a
check-and-balance against abuse of power in the normal course of governance,
the legislature is empowered under section 188 of the constitution (in case of
Governors/Deputy Governors) and section 143 (in case of
President/Vice-President) to remove such an erring political office holder
covered by immunity against prosecution of any kind under section 308. It then
follows prima facie that for the affected political office holders to face
prosecution, they would have to be first removed from office by the legislature
(with a theoretically stringent
two-thirds majority of all members of the legislature) in accordance with
provisions of sections 188 or 143 of the constitution as the case might be. To
give adequate power to the legislature to serve as proper check on the
executive arm of government through the aforementioned constitutional
provisions, sections 188 (10) and 143 (10) state that the legislative process
leading to impeachment are not justifiable, that it is not within the
competency of the court to intervene. The provisions of sections 188 (11) and
143 (11) state further that what constitutes a gross misconduct
warranting impeachment is a violation of the provisions of the constitution or
whatever so amount to gross misconduct in the opinion of the legislature. From the foregoing, it is clear that the
impeachment process is not meant to be subject to any judicial veracity of the
alleged constitutional breaches and or gross misconduct. While the truth of
such impeachable offences may not survive the test of normal judicial trial in
a court of competent jurisdiction, the process is arguably meant to serve a
political antidote to an omnibus shield provided the political office holders
under section 308 of the constitution. Despite obvious potential checks
provided in sections 188 and 143, evidence of plundering of state funds and
even commission of heinous crimes such as murder by political office holders
who enjoy immunity under section 308 have been elicited by the report of State
Security Service (SSS) and Economic and Financial crime Commission (EFCC) in
various reports that have been made public at various level of government in
recent time.
But
where did the country get it wrong? Was it that Nigeria did not get it right
from her colonial masters or from the country she copied the 1999 Constitution?
Was it that the country’s political class had a sheer disregard for
constitutional provisions?
Between
2005 and 2007, five governors were impeached by their State Houses of Assembly.
The only unifying factor of these
impeachments was that none could be said to have followed due process. They
were all removed without having regard to constitutional provisions. Why
then has Okorocha’s case been a hard nut to crack despite his continuous
disregard for the law and due process?
Section
188 of the 1999 Constitution provides for the removal of governors and their
deputies. This latter section is a replica of section 170 of the extant 1979 Constitution under which Alhaji Balarabe Musa of the defunct
People’s Redemption Party (PRP) of the old Kaduna State was impeached by a
House dominated by the also defunct National Party of Nigeria (NPN). He was the
only executive Governor removed under that constitution.
Both the 1979 Constitution and 1999 Constitution
do not provide grounds for impeachment. This is in contrast to the American
constitution which highlights the grounds for impeaching a public officer. The
1999 Constitution only provides that above mentioned elected officers shall be
removed from office if they are found guilty of “gross misconduct”. And yet, the
definition of “gross misconduct” in Section 188 (11) is not explicit enough.
Therefore,
reckless legislatures have harped on
this inadequacy to impeach on frivolous grounds. The case of Prince Eze Madumere of Imo State is an
evidence of this rascality. Therefore, the
constitution has put the executive at the mercy of the legislature because the
latter can in its own opinion manufacture what amounts to “gross misconduct”.
For
example, The United Kingdom that colonized Nigeria utilized the impeachment
process until 1795 when Warren Hastings was
impeached. Since that time, the impeachment process has no longer been in
practice and the country has developed what is known as “passing a vote of no confidence”
on any public officer who has committed an offence serious to warrant such a
fundamental decision. These processes mentioned above have been sparingly used
by the United Kingdom; it only resorted to them when it was absolutely
necessary.
Another
interesting country is the United States. This is so because of the political
and constitutional nexus that exists between Nigeria and America. In this
country, impeachment is not only limited to the president and his vice,
governors and their deputies but to all civil officers – they could be senators
and judges as experience has shown.
Since
1787 when the United States Constitution became operative, only thirteen
officers have so far been impeached. This underscores how Americans guard this
provision jealously to avoid political instability. It is only resorted to when
other avenues have become practically impossible.
The
recent submissions of the Governor of Imo State, Owelle Rochas Okorocha, before
the State House of Assembly, which indicated that his Deputy Governor, Prince Eze
Madumere be considered for immediate impeachment and investigation for
corruption is a reference point of the decadence in our political strata which
should have been ameliorated by the various legislative assemblies. But what do we have? – False Accusations upon accusations and
intimidation from the guilty one, Okorocha himself and yet the law has refused
to call him to order or impeach him in place of his Deputy.
On
Monday, 10th of July, 2018 the deputy speaker, Nnanna Ozuruigbo
submitted a petition signed by 13 out of the 27 members of the Assembly,
accusing the Deputy Governor, Prince Eze Madumere, of abandoning his office for
more than three months without permission, refusal to carry out official duties
assigned to him by Governor Rochas Okorocha and most importantly, the
accusation of being Unqualified to be a public officer on the grounds that he
was once an ex-Convict in the USA. All these purported lies from the same
Owelle Okorocha, who has been known for his numerous excesses in the use of
power and defilement of law and order.
In
Nigeria, Since most of the affected political office holders have a firm grip
on their political environment (including party machineries) it has been
practically impossible to invoke the impeachment clause to sack such erring
office holders like Okorocha and make them face prosecution, which is why he is
still pocketing and bending the laws without any form of fear or respect. Okorocha’s
seemingly ‘larger than life’ political aura wielded by the state chief
executives is a major reason for the continuous impediment on political
expediency and efficacy of the constitutional provisions.
Governors
who are alleged to be involved in massive lootocracy of the treasury are
supposed to be brought to book by the provisions of the 1999 constitution but
today the reverse is the case as our lawmakers have now become tangential
partakers in the corrupt enrichment of self through the little amounts doled
out to them by the governors under the guise of “constituency projects” that
were never implemented, rather than the fight for justice. This trend, which started in Bayelsa state, is the same scenario being
played in the on-going impeachment saga in Imo state. As much as it is a
standard practice in criminal justice procedure for the prosecution to engage
in trade-off to tactically obtain the cooperation of a co-accused, accessory or
secondary parties in the trial of indictable offences with the resultant effect
of turning such persons into witnesses (with their protection and freedom guaranteed
in return in order to secure conviction of the main culprit) the current
approach adopted to rein in the lawmakers to perform their constitutional and
oversight duties raise some pertinent questions deserving critical analysis on
the efficacy of the rule of law in the Nigerian nascent democratic experience
of the last seven years.
Some of the jurisprudential issues arising are
encapsulated in the following rhetoric:
1) Where
lies the efficacy of the federalism professed in section 2 (2) of the 1999 Constitution?
2) Does
State Assembly lawmakers require external promptings to undertake their
constitutional duties of checking the
governors as spelt out in section 188?
3) If the
EFCC induces impeachment proceedings (overtly or covertly) against erring Deputy
Governors, who then induces such proceedings against a defaulting Governor
where necessary?
Ordinarily,
the state assemblies and the National Assembly (NASS) need no overt or covert
prompting or inducement from outside to initiate impeachment proceedings
against the elected officers covered by the immunity clause in section 308 (3)
of the 1999 constitution. The question that no plausible answer has been found
to is “if the influence of federal
government controlled security apparatus is borne to sanitize corruption at the
state level (with or without trampling on the principle of federalism), why
then has the case of Imo State become different?”. The provisions of
sections 188 and 143 of the constitution are unambiguously clear; “it is the prerogative of the lawmakers”.
Where the lawmakers remain insensitive
to rise up to the occasion, nonetheless accusations and counter-accusations
against the political office holders where then lies the proper practical check
against the executive office holders?
While
it is good to protect elected political office holders from frivolous
litigations and witch-hunting while in office, our experience in the last seven years has shown the need for Governor
Owelle Rochas Okorocha of Imo State to be cautioned for his excesses especially
the recent move to impeach his deputy and also it is of utmost importance that
Owelle Okorocha should be arraigned for Money Laundering, Gross Misconduct, and Abuse of Power.
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