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The Impeachment: Obasanjo Vs. the Reps

Muyiwa Sobo

In about a week from now, if President Olusegun Obasanjo, also fondly known as OBJ by friends and foes alike, does not resign from the position of the chief executive of Nigeria, the House of Assembly may initiate the constitutional procedure to force him out of office. The House, by fiat, has ordered the president of the most populous African nation to step down or be removed. By all account, this very reckless action has begun to reenergize the controversy regarding Nigeria’s viability under the current democratic experiment. New doubts are being cast and old ones resuscitated because the forceful removal or impeachment of a president is arguably the most dangerous self-inflicted imperfection of any young democracy. This is what looms large over the nation, threatening like a ballistic explosive device.

It is well known that the forced removal of an elected official occurs only when it is enabled by the law and supported by the political atmosphere among those who have that responsibility. This forced removal is never pleasant. Therefore, it is the responsibility of the enabling law to envisage and prepare for all possible scenarios. To that end, any enabling law must adopt the least disruptive removal procedure, guarantee the fairness of that procedure, and, in the end, ensure that the integrity of the political system remains intact subsequent to the forced removal. The removal procedure contained in the Nigeria’s Constitution fails in all these aspects.

In considering the threatened impeachment, it is difficult not to conclude that the authors of the Constitution were willfully ineptitude and are singularly responsible for this debacle. Our Constitution is a potpourri of provisions. Its authors, whomever they were, adopted provisions and procedures from the American Constitution, the British Constitution, the Indian Constitution, and only God knows what other constitutions. In trying to retroflex these provisions to fit and fix Nigeria’s unique political circumstances, the drafters made radical changes without significant attention to real life consequences. Intentionally or not, what they produced as the supreme law of the land is an acidic gore that would gradually disintegrate the Nigeria cherished civil governance. Regarding the forced removal of the president and many other aspects of our democracy, our Constitution is fatally defective.

Notwithstanding Nigeria’s delicate political circumstance, the drafters created a procedural disorder for the removal of the president. Instead of a more preferred judicial procedure, the drafters established impeachment processes that depend on the political mood of the legislature and the president’s cabinet. They established two procedural methods in the Constitution for the forced removal of the president: (1) the National Assembly procedure pursuant to section 143, and (2), a palace coup that may be initiated by the president’s cabinet pursuant to section 144. The question is not whether the president could be successfully removed under either procedure, it is just that the procedures are awkward and injudicious. For now, the focus is on the impeachment and removal process of section 143. Understandably, the Constitution avoids the word “impeachment,” but if it quacks like a duck…

There are three main stages to this removal cacophony: the presentment, the investigation, and the trial.

Stage 1: The Presentment

Section 143(2)(b) initiates the procedure for the removal of the president or the vice-president. It starts with a notice of allegation signed by at least “one-third of the members of the National Assembly” specifying that the president is “guilty of gross misconduct in the performance of his office…” Within seven days of the presentment, members of the National Assembly and the president must be served with copies of the notice and any initial response by the president.

Section 143(2)(b) is where the pretences of due process, itself guaranteed by the Constitution, begin. This part of the procedure allows at least one out of three members of the House and the Senate collectively to deem the president as “guilty of gross misconduct” before any investigation or trials. Two problems are obvious here: (1) the term “guilty,” and (2) the scope of “gross misconduct” as an impeachable offense. “Guilty” is a legal term used to define culpability, based on due process of the law, either by the acceptance of guilt or by a judicial determination in a court of law. Allowing a supermajority of the National Assembly to presume the president “guilty” in initiating his removal puts the impeachment exclusively in the political arena. The proof of this is also found in the scope of the impeachable offense. Section 143(11) defines “gross misconduct in the performance of the functions of his office” as a “grave violation or breach” of the Constitution or any “misconduct” determined to be “gross misconduct” in the opinion of the National Assembly. This is an extremely arbitrary provision. Since the beginning of democracy, impeachment has been notoriously connected to political crisis or partisan rivalry. In order to diffuse this, specific and clear definition of impeachable offenses must be statutorily instituted. For instance, the scope of impeachable offenses in the American Constitution is limited to “treason, bribery or other high crimes or misdemeanors.” This is not an ironclad standard; nonetheless, it makes clear that the president could be impeached for criminal behaviors only. Of course, what constitutes “high crimes or misdemeanors” is subject to interpretation depending on the political climate as witnessed during the impeachment of former President Clinton, yet some sort of objective misbehavior is necessary to reach that point. In contrast, our Constitution adopts a subjective standard. No misbehavior or criminal activity is necessary. Even if the president has been found guilty by a court of law for violating the Constitution, the determination of whether such violation is sufficiently “grave” to justify impeachment is still left to the whim of the National Assembly. In every respect, an elected president is potentially impeachable under our Constitution, for any action or behavior that disfavors the National Assembly or threatens the legislature’s self-interest.

Stage 2: The Investigation

Section 143(3) provides that within 14 days of the presentment, the Senate and the House must each “resolve by a motion without debate” whether to investigate the allegation. An investigation will be conducted only if the motion is supported by two-thirds of each house. Notably, the investigation requires a higher number of votes than the presentment. This is a number trick because the president would have been declared or alleged “guilty” of “gross misconduct” by one-third of the National Assembly 14 days before the resolution to investigate. With this one-third already in place, additional votes required in each house could be garnered effortlessly. In addition, what remains to be investigated after the declaration or allegation of guilt? More disturbing, the Constitution is suspiciously silent on who will conduct the investigation. It would not be the police or the attorney general because crime is not a required element for the impeachment. Most likely, a joint committee of the National Assembly would conduct the investigation. With one-third having declared the president guilty at the presentment stage, another two-thirds of all the members in each house voting to investigate, the chances of empanelling an objective investigation committee is zero.

At this point, the procedure has gone beyond being riotous to being synonymous with political blackmail because the main reason for the 14-day buffer between the presentment and the investigation is to provide a cooling-off period, an opportunity for the president to appease the National Assembly. Note that the Constitution so far in this procedure has denied the president of any real fighting chance. If the impeachment depends on criminal misbehavior, at least he would have had a defense opportunity in a court of law, but not here. He is constitutionally cornered and as such, there is no telling what the president would give up to avoid an impending removal. The National Assembly knows this and would refuse to negotiate. Unless, the president is willing to ride the storm, risking a forced removal, it is likely that the National Assembly would prevail anytime there is a one-third majority willing to declare the president “guilty” of “gross misconduct.”

Step 3. The Trial

In the U.S., an impeached president is subject to removal only after he has been tried and found guilty by the Senate. The chief justice of the U.S. Supreme Court presides over such trial. And if found guilty by a two-third majority of the Senate, the president is removed. Not so in Nigeria. The Constitution requires the empanelling of seven ordinary citizens by the chief justice of the Nigerian Supreme Court. Pursuant to section 143(5), members of the panel must, in the opinion of the Chief Justice, be persons of “unquestionable integrity” and cannot be government official or member of a political party. The panel will also have such powers and use such procedures as may be “prescribed by the National Assembly.” The rationale for this provision is difficult to understand.

The question here is not whether persons of “unquestionable integrity” could be found in Nigeria. The concern is the propriety of thrusting the determination of the most important aspect of democracy to seven ordinary citizens. No compelling legal reason exists to warrant or even suggest the adjudication of impeachment by seven ordinary citizens. But there is a concealed explanation: the Constitution must correct the lack of due process in the impeachment procedure. The Constitution contradict itself when it denies the president due process up to this point in the impeachment procedure. This ramshackle forum of seven ordinary citizens is the Constitution’s substitution for procedural due process. A trial by the Senate presided over by the chief justice is a better option. At least, the Senate as an elected body is supposedly answerable to the voters. This panel of seven citizens is answerable only to the National Assembly.

Worse, the panel’s report must be ratified by a two-third majority of each house. This is a face saving provision to prevent a situation where the panel’s report is contrary to the National Assembly’s political compass. This is because an adverse report by the panel essentially overrules the National Assembly. You can bet such report will not survive the two-third-majority vote. In case an adverse report survives, the Constitution is silent on subsequent actions. Does an adverse report bring finality to the impeachment or could the National Assembly request another panel from the chief justice? There are no answers to these important questions. And no interpretation should be expected from the judiciary. In the view of the Constitution, the judiciary is so distrustful it should be kept out of the impeachment procedure. The Constitution provides that the impeachment procedure is not subject to judicial scrutiny or interpretations. That is the final proof that the Constitution intends to politicize the impeachment procedure, turning it into a tool to intimidate and threaten the president or the vice president.

In sum, the current controversy regarding the threat to impeach the president is very revealing. The focus is slowly shifting to the ineptitude Constitutional provisions that permit the impeachment of a president in an immature democracy based solely on the political compass of the legislature. Like Nigeria, Great Britain has a broader definition of what constitutes impeachable offence as compared to the American version. However, that system provides for a removal trial in the House of Lords where a simple majority vote is required for a conviction. Our Constitution wrongly emulates these provisions without accounting for unique circumstances that affect our politics such as our history, religion, and different but equal tribal nationalities.

Every Nigerian, regardless of tribe, creed, religion, or political affiliation, ought to be concerned about the failings of our Constitution in this and other regards. That is assuming that as a nation, compares to ruinous military dictatorship, we prefer peaceful democracy. The refusal to caste aside our differences and fix the Constitution may affirm the cliché that Nigeria is ungovernable civilly.

August 2002.

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