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Alamieyeseigha's Return: Constitutional Implications
Akpo Mudiaga Odje
November 27, 2005
There is no subject matter today as intriguing as the arrest, arraignment and subsequent escape of His Excellency, Dr. D.S.P. Alamieyeseigha from the Court of England last week. In fact, not a few Nigerians were jolted, if not outraged, at his return to the battered Niger Delta region of the Federal Republic of Nigeria. This discourse attempts to examine the legal implications of the return of the embattled Governor vis-ˆ-vis the provisions of the 1999 Constitution.
For the avoidance of doubt, this article is not concerned with the propriety or otherwise of the Governor's escape, but strictu sensu, on the legal effect or implication of his return to Nigeria vis-ˆ-vis Section 308 of our Constitution.
Provisions of Section 308 of the Constitution.
Section 308 so far as material provides that:
"(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section -
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to "period of office" is a reference to the period during which the person holding such office is required to perform the functions of the office."
Implications of his return and the Constitution.
Having set out the lucid provisions of Section 308 above, it is equally important to examine the locus classicus case on this Section. Like the philosopher Gray once observed in Jurisprudence that:
"The words of a statute are dead until given life by judicial interpretation."
Thus, in Gani Fawehinmi Vs. I.G.P. 2002 7 NWLR (pt.767) 606, the sagacious Uwaifo, JSC observed at page 683 paras. A-B that:
"Section 308(1)(b) of the 1999 Constitution says that "a person to whom this section applies shall not be arrested or imprisoned during (his period of office) either in pursuance of the process of any court or otherwise." The bone of contention is what the word "otherwise" refers to. The word can mean no more than "any lawful process or command" which has the same effect as a "process of any court." It must be ejusdem generis an enforceable process, command or order meant to be obeyed."
This appears to be the effect on Alamieyeseigha's return to Bayelsa State. From the lucid judicial observation above, the man is immune from arrest, detention or any Court proceedings whether civil or criminal, relating to his purported escape and return to Nigeria. This is the clear effect of Section 308 of the Constitution which Katsina-Alu, JSC in the Fawehinmi's case (supra) at page 697 paras. D-E adumbrated that:
"I think the language of section 308 is clear and unambiguous. It must be given its plain meaning. .............................."
Notwithstanding the above, the indefatigable Chief Gani Fawehinmi, SAN., once again expanded the scope of our constitutional law in that case, when the Supreme Court held that even though a Governor has immunity from arrest, he nevertheless can be investigated whilst in office. Thus, Uwaifo, JSC again at page 682 paras. B-H, accentuated this view thus:
"That a person protected under section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute. To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated. I shall give three possible instances. Suppose it is alleged that a Governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented or damaged part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept it in a particular bank or used it to acquire property. Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be precluded by section 308 from investigating to know the identity of the man killed, the cause of death from autopsy report, the owner of the car taken to the workshop and if there is any evidence from the inspection of the car that it hit an object recently, more particularly a human being; or to take steps to recover the gun and test for ballistic evidence; and generally to take statements from eye-witnesses of either incident of killing. Or to find out (if possible) about the money lodged in the bank or for acquiring property, and to get particulars of the account and the source of the money; or of the property acquired? The police clearly have a duty under section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available. The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available, and in the particular instances given it can be seen that the offences are very serious ones which the society would be unlikely to overlook if it had its way. The evidence may be useful for impeachment purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under pretext that a Governor cannot be investigated is a disservice to the society. I therefore answer issue 1 in the affirmative."
Little wonder, therefore, that the erudite Inspector-General of Police, Mr. Sunday Ehindero, (who actively argued for the Respondents/Cross Appellants in that case), speaking on the Alamieyeseigha's saga as relayed in the Vanguard Newspaper of 24/11/2005 at page 14 observed that:
"The hallmark of the present police force is that we act and perform our functions within the confines of the law. We are not empowered by our constitution to arrest a serving governor because it gives him immunity. But that does not prevent him (governor) from being investigated or his office," he said at an interactive session with DIGs, AIGs and Commissioners of Police from across the country."
In retrospect, the amiable Hon. Attorney-General of the Federation, Mr. Bayo Ojo, SAN., made a similar submission in his affidavit whilst opposing possible return of Alamieyeseigha's passport by the English Court, saying that the Federal Government cannot guarantee the return of the Governor if his traveling documents were given to him because he has immunity under Section 308 of the Constitution from being compelled or arrested to show up at his trial.
In his words, the erudite Attorney-General of the Federation averred as reflected in the Vanguard Newspaper of 10/11/2005 at page 14 thus:
"I would like to state that in view of the fact that the Governor would be entitled to immunity under section 308 of the Nigerian Constitution when he goes back to Nigeria, he may not be willing to return to the United Kingdom to stand trial. I believe this to be the case because there is nothing that anybody can do to force him to return to the United Kingdom once he sets foot on Nigerian soil."
Impeachment proceedings as a legal option.
Section 188 of the 1999 Constitution which regulates impeachment proceedings provides thus:
"(1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section.
(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly -
(a) is presented to the Speaker of the House of Assembly of the State;
(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 from 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 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."
This is indeed a legal cum political weapon in the hands of the State legislature. It is meant to check the excesses of the Governor. However, the due process as set out above must be duly adhered to, notwithstanding the ouster clause contained in Section 188(10). This view is augmented by the apposite remarks of the proficient Pats-Acholonu, JCA (as he then was), in Abaribe Vs. Abia State House of Assembly 2002 14 NWLR (pt.788) 466 at 486 paras. E-F that:
"......the Court at the same time may not close its eyes to serious injustice relating to the manner the impeachment procedure is being carried."
So, it would appear from this authority that notwithstanding the provisions of Section 188(10) of the Constitution, if there is serious injustice in the procedure of impeachment on a Governor, the Court may step in.
Resignation from office.
He may resign from office in accordance with Section 191 of the 1999 Constitution. This is however most unlikely in view of the circumstances surrounding his return.
Apart from these constitutional options, it will be legally impossible to remove the barricade of protection granted to His Excellency, Dr. D.S.P. Alamieyeseigha, Governor of Bayelsa State, under Section 308 of the 1999 Constitution.
Based on the foregoing, therefore, until Section 308 is amended or deleted, it remains the law of the land. And as it stands, the Bayelsa State Governor cannot be arrested pursuant to any directive, order or decision of a Court, authority or institution whether municipal or international.
*Akpo Mudiaga Odje, Esq., LL.M (London) BL., is a constitutional lawyer based in Warri, Delta State.
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This page was last updated on 10/27/07.