By Afe Babalola, SAN
IN 2018 following events in Imo and Benue states borthering on attempts to impeach elected officials, I examined the process stipulated by law for the impeachment of a governor/deputy governor. Interestingly, in 2020 attempts by legislators to impeach more elected officials have again been reported. The first case arose in Ondo State where the members of the House of Assembly purportedly served the deputy governor with a notice of impeachment and thereafter requested the Chief Judge of the State to set up a panel to investigate allegations made against him. Reporting the decision of the chief judge to reject the request of the legislators, a national daily stated as follows:
“The Chief Judge, however, stated that the implication of the sections of the constitution cited was that the deputy governor, Agboola Ajayi, must be served with impeachment notice signed by not less than two-third of the members of the House of Assembly of the state. The notice to be served on him must state that he is guilty of gross misconduct in the performance of the functions of his office and must specify the particulars of the gross misconduct and that he must be allowed to respond to the allegations. “Within the 14 days of receipt of the Notice by the Honourable Speaker, whether or not the deputy governor responds, the House of Assembly shall pass a resolution supported by not less than two-third of majority of all the members of the House of Assembly that the allegation be investigated.”
Similarly, in Edo State, an attempt by 17 lawmakers to take over the House of Assembly with a view to initiating impeachment proceedings against the governor was reported. To thwart this effort, certain persons loyal to the governor were alleged to have removed the roof of the House of Assembly while also placing obstacles at the entrance to prevent access to the building. These events are not entirely new in Nigerian politics. Since the return to democratic rule in 1999, there has been a rash of impeachments across many states leading to the removal of governors and their deputies. As such events usually signify the onset of power tussle amongst political gladiators, often in the run-up to elections, it is hardly surprising that attempts at impeachment are again in the news. However, what is surprising is that despite pronouncements of the highest courts of the land, politicians still display an unwillingness to abide by the law. It is for this reason that I consider it imperative to once again revisit the issue and clearly examine the procedure for impeachment in Nigeria.
What is the procedure for impeachment of a governor/deputy governor under our constitution?
Impeachment is one of the methods under the constitution through which a holder of the office of President, Vice President, Governor, Deputy Governor, Senate President, Deputy Senate President, Speaker of a State House of Assembly and Deputy Speaker of a State House of Assembly can be removed from office. ‘’Impeachment’’ within the context of this article is understood as the constitutional process through which a person occupying the office of Governor or Deputy Governor can be removed from office by not less than two thirds majority of the members of the State House of Assembly. This distinction is crucial as there are other methods besides ‘’impeachment’’ under the CFRN through which a person occupying the office of governor or deputy governor can be removed from office.
The procedure for the impeachment of a person occupying the office of governor or deputy governor of a state respectively is stipulated under Section 188(1) – (11) of the CFRN. From the provisions of these sections, the procedure for the impeachment of a person from the office of governor/deputy governor can be summarized as follows: 1. There must be an allegation that the holder of the office of Governor or Deputy is guilty of ‘’gross misconduct’’. Section 188(2)(b) of the CFRN provides that the alleged ‘’gross misconduct’’ must have been committed in the performance of the functions of the office of governor or deputy governor. Hence, acts done by the holder of the office of governor or deputy governor before coming into office may not qualify as ‘’gross misconduct’’ under the CFRN. Please also, note that the Supreme Court has held in INAKOJU & 17 ORS V. ADELEKE & 3 ORS (2007) 1 SC (PT. I) 1 @ PG. 66-67, LINES 25-10, that removal from of the office of governor or deputy governor pursuant to Section 188 of the CFRN is a very strong political weapon which must only be used in appropriate cases of serious wrong doing on the part of the holder of the office of governor or deputy governor. It should not be used to achieve a political purpose or one of organized vendetta clearly outside the contemplation of what is ‘’gross misconduct’’ under Section 188 of the CFRN.
- The notice of allegation must be in writing and signed by not less than one-third of the members of the House of Assembly. Please see the case of DAPIANLONG V. DARIYE (NO. 2) (2007) ALL FWLR (PT. 373) 81. 3. Thereafter the notice of allegation is presented to the Speaker of the House of Assembly of the State. 4. The Speaker of the House of Assembly shall within 7 days of the receipt of the notice of allegation, cause a copy of same to be served on the holder of the office accused of gross misconduct. One of the reasons advanced by the Supreme Court for nullifying the impeachment of the Governor of Oyo State in the case of INAKOJU & 17 ORS V. ADELEKE & 3 ORS (SUPRA) was the failure to serve the Governor with the notice of allegation otherwise referred to as the impeachment notice. 5. The Speaker of the House of Assembly shall also within 7 days of the receipt of the notice of allegation, cause a copy of same to be served on each member of the House of Assembly. 6. Upon service on him of the notice of allegation against him the holder of the office has the right to reply to the said notice of allegation. Where the holder of the office exercises his right to reply, the said reply shall be served on each member of the House of Assembly by the speaker of the House of Assembly.
- Thereafter and within 14 days of presentation of the notice of allegation to the speaker of the House of Assembly, the House of Assembly shall resolve by motion, without any debate whether or not the allegation contained in the notice of allegation should be investigated.
- A motion resolving that the allegation contained in the notice of allegation should be investigated must be passed by not less than two-thirds majority of all members of the House of Assembly. Failure to get at least two-third majority of the members of the House of Assembly to vote for the said resolution terminates the impeachment proceedings. 9. Within seven days of passing the said motion the speaker of the House of Assembly of the state shall request the Chief Judge of the State to appoint a panel of seven persons to investigate the said allegations. The members of the panel must be persons who in the opinion of the Chief Judge are of unquestionable integrity, not being members of any public service, legislative house or political party. The Supreme Court in the case of A.P.C V. P.D.P. (2015) ALL FWLR (PT. 791) 1493 @ PG. 1546 – 1547, PARAS F-C held that the ‘’Chief Judge’’ mentioned in Section 188(5) of the CFRN must either be the substantive Chief Judge of the State or an acting Chief Judge who has been properly appointed and not one appointed in bad taste, just to witch hunt the investigated official.
- The holder of the office of governor or deputy governor under investigation has the right to appear before the panel and defend himself in person or via a legal practitioner. The panel in conducting its investigation must adhere to the tenets of fair hearing. Where panel breaches the right of fair hearing of the person being investigated, the entire proceedings of the panel may be declared null and void. Please see the case of DANLADI V. DANGIRI (2015) 2 NWLR (PT. 1442) 124. 11. The investigation Panel must exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly. 12. The investigative panel must report its findings to the House of Assembly within three months of its appointment. 13. Where the conclusion of the investigative Panel in its report to the House of Assembly is that the allegation has not been proved that terminates the impeachment process and no further proceedings shall be taken in respect of the said impeachment. Please see the case of A.P.C V. P.D.P. (2015) ALL FWLR (SUPRA) @ PG. 1578 – 1579, PARAS G-B.
- Where the conclusion of the investigative panel in its report to the House of Assembly is that the allegation has been proved, the House of Assembly must consider and vote on the report within fourteen days of receipt of same. 15. The holder of the office of governor or deputy governor of a state stands removed upon adoption of the investigate panel’s report by not less than two-thirds of the members of the House of Assembly. Please see the case of DAPIANLONG V. DARIYE (NO. 2) (]\supra) To be continued….
Aare Babalola is a Senior Advocate of Nigeria