Dear Compatriots:
The impeachment proceedings of any Governor and Deputy Governor
are subject to Section 188 of Nigeria's 1999 Constitution. Although
the cases of the Ekiti State personalities Fayose and Olujimi are
immediately of interest here, the discussion will be cast in a more
general light as much as possible.
Assuming that an impeachment notice has been served on the accused
and properly responded to, it is proper here to continue at the
appointment of the Panel of seven persons by the Chief Judge. Their
choice is ENTIRELY at the discretion of the Chief Judge, which
persons.."...
in his opinion are of unquestionable integrity"..even if we THE PEOPLE question their integrity.
But what does "integrity" of a mother mean if
perchance the Chief Judge chooses her to be on a panel to judge a case
of her son who is the governor? Or the "integrity" of a close friend
of the governor? Must "integrity" then not be in context? Does
"integrity" here mean that the Chief Judge has convinced himself that
the mother has SUCH integrity that it trumps family relationship?
I think not, and no reasonable person can assume that the CJ has an infinite lattitude to pack the Panel.
Just as a jury takes the place of a judge and
should be adjudged to be a mix of reasonably unbiased persons with
integrity RELATIVE TO THE CASE AT HAND, so must this Panel, even where
the discretion of the CJ is not questioned. The CJ cannot "pack" a
court with people of integrity! :-)
However, all is not lost at this time: the State
Assembly (SASS) still has a stalling ace, since Section 188 (7)(a)
states that the " Panel appointed under this section shall have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly." Thus without prescription, there are no powers: the panel is an empty suit, no pun intended.
But can the SASS stall for ever? That would leave
the accused in place for ever. Can it use its powers to request
the resumes or curriculum vitae (CV) of the panelists, and
the basis of their choice, and then ask for a variation of the
composition if bias is proved? The CJ may or may not accede. If bias
is proved, should the SASS not, in the interim, invoke Section 292
(a)(ii) and (b) report the Chief Judge to the National Judicial Council
for lack of integrity in composing a biased panel and then cause
the Governor to dismiss the Chief Judge and appoint another?
Yes, the Governor, who through Section 292(a)(ii) can be compelled to so act "on
an address supported by two-thirds majority of the House of Assembly of
the State, Praying that [the Chief Judge] be so removed for his
inability to discharge the functions of his office or appointment
(whether arising from infirmity of mind or of body) or for misconduct
or contravention of the Code of Conduct ;"
All of this might take time, and again leave the
accused governor (and deputy) in place, who would be strange judges in
their own cases.
My advice is that despite the claim of bias, the
State Assembly accusers in the case of Ekiti State, should proceed with
the case before the panel, and may surprise the Panel by such
overwhelming evidence that it would have no choice but to return a
verdict against their own biased interest, or else cause them to return
a howler verdict. If the proceedings were to continue, however, the
Panel might want to take all of three months, since Section 188(7)(b)
states that : " the Panel, shall,... within three months of its appointment, report its findings to the House of Assembly."
Thus, to prevent such an eventuality, it is crucial that the SASS's
prescription MUST include a time limit to the reporting back - say one
week or two - which would still be "within three months", which was
never meant to mean "at the end of three months."
Finally, suppose, in a worst-case scenario, the
Panel DARE to COMPLETELY exonerate the accused governor and/or Deputy
Governor? If that were the case, they would state that following
Section 188(8) " the allegation has not been proved, [and hence] no further proceedings shall be taken in respect of the matter.
" Thus a new panel would not be able to be formed on the
"matter." It would appear that in that case the hands of
the SASS would be completely tied.
That could cause a major problem [say in Ekiti State] if followed through.
But does that determination by the administrative
panel really matter? Is that the end of the story? Absolutely not,
since the State Assembly has the FINAL SAY, and is protected by Section
188(10) which states 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. "
This is a monster ouster clause reminiscent of military rule.
So from all the above, we see that our 1999
Constitution is somewhat a confused amalgam of prescriptions, and that
there is a lot of murkiness in the future of these particular
proceedings.
However, all hope is not lost in Ekiti
State: the fat person has not yet sung, but we must closely watch the
parting of the curtains for her arrival on stage.
Best wishes all.
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APPENDIX
Sections 188 and 192 of Nigeria's 1999 Constitution
188. (1)
The Governor or Deputy Governor of a state may Removal of Governor be
removed from office in accordance with the provisions or Deputy
Governor of this section. from office.
(2)
Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly.
(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 form 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 any 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. ......
292.
(1) A judicial officer shall not be removed from his office or
appointment before his age of retirement except in the following
circumstances -
(a) in the case of -
(i)
Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge
of the Federal High Court, Chief Judge of the High Court of the Federal
Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of
the Federal Capital Territory, Abuja and President, Customary Court of
Appeal of the Federal Capital Territory, Abuja, by the President acting
on an address supported by two-thirds majority of the Senate.
(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of
Appeal or President of a Customary Court of Appeal of a State, by the
Governor acting on an address supported by two-thirds majority of the
House of Assembly of the State,
Praying that he be so removed for his inability to discharge the
functions of his office or appointment (whether arising from infirmity
of mind or of body) or for misconduct or contravention of the Code of
Conduct;
(b) in any case, other than those to which paragraph (a) of this
subsection applies, by the President or, as the case may be, the
Governor acting on the recommendation of the National Judicial Council
that the judicial officer be so removed for his inability to discharge
the functions of his office or appointment (whether arising from
infirmity of mind or of body) or for misconduct or contravention of the
Code of Conduct.
(2) Any person who has held office as a judicial officer shall
not on ceasing to be a judicial officer for any reason whatsoever
thereafter appear or act as a legal practitioner before any court of
law or tribunal in Nigeria.
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