Why it is near impossible to impeach Peter Obi even if Labour Party does not control the National Assembly

Mr. Peter Obi was impeached as Governor in 2006

As the 2023 Nigerian general elections draw nearer, various political actors, especially those in the minority or opposition party are warming up to wrestle powers away from the ruling All Progressive Congress, APC especially at the federal level while the ruling party itself and its candidates are not resting on their oars to retain power beyond the current dispensation.

Of all available elective positions, only the office of the Nigerian President is the focus of this article; and it seeks to x-ray the fate of a Nigerian President when it comes to his being removed from office for a grave violation of the constitution and/or for an act(s) of gross misconduct by the National Assembly; especially where his political party at the point of his election, occupies the minority seats at the National Assembly.

Amongst other things, this article is coming against the backdrop of some media postulations that even if Mr. Peter Obi of the Labour Party clinches the office of the Nigeria President come 2023 presidential election, his removal from office by the National Assembly would be easy given that it is difficult to see his party, the Labour Party clinching the majority seats at the National Assembly come 2023.

1. Procedures for the Removal/Impeachment of a Nigerian President/Vice President

While I shall take it for granted that my readers already know the meaning of ‘impeachment’ (at least, in the Nigerian context) as a result of which no conceptual definition of the term is necessary, I must state for the sake of emphasis and more importantly, for the benefit of the students of erudite Prof. Farooq Kperogi that by ‘impeachment’ in this context, I mean the REMOVAL of the President of Nigeria from his office by the members of the National Assembly pursuant to section 143 of the 1999 Constitution of the Federal Republic of Nigeria as amended.

In fairness to Prof. Farooq Kperogi who has already copiously written to make a case that whether in Nigeria or elsewhere, that impeachment does not mean the same thing as removal from office, the Nigerian constitution itself never mentioned or used the term ‘impeachment’ in its section 143 above which deals with the removal from the office of the President by the National Assembly; but rather used the word ‘removal’ from office. Nonetheless, the use of the word ‘impeachment’ to denote ‘removal’ from office has gained wide acceptance within the Nigerian legal community such that ‘impeachment’ and ‘removal’ from the office can be safely used interchangeably.

The procedures for the impeachment of the President/Vice President of Nigeria are outlined in section 143 of the 1999 Constitution of the Federal Republic of Nigeria as amended. The said section is hereunder reproduced thus:

“143.—(1) The President or Vice-President 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 National Assembly—

(a) Is presented to the President of the Senate;

(b) Stating that the holder of the office of President or Vice-President is guilty of misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the President of the Senate shall within seven days of the receipt of the notice cause a copy thereof to be served on the holder of the office and on each member of the National 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 National Assembly.

(3) Within fourteen days of the presentation of the notice to the President of the Senate (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice) each House of the National Assembly shall resolve by motion without any debate whether or not the allegation shall be investigated.

(4) A motion of the National 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 each House of the National Assembly.

(5) Within seven days of passing of a motion under the foregoing provisions, the Chief Justice of Nigeria shall at the request of the President of the Senate 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 National Assembly; and

(b) Within three months of its appointment report its findings to each House of the National Assembly.

(8) Where the Panel reports to each House of the National 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, each House of the National assembly shall consider the report, and if by a resolution of each House of the National 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 adoption of the report.

(10) No proceedings or determination of the Panel or of the National Assembly or any matter relating thereto 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 of the National Assembly to gross misconduct.”

The foregoing section 143 (10) above should be noted with concern. It provides that the resolution of the National Assembly removing the President/Vice President for grave violation of the constitution or for gross misconduct is final and shall not be questioned in any court of law or tribunal. To the best of my knowledge, the said unquestionability of section 143 (10) is yet to be subjected to a judicial litmus test. This is because there is not yet any invitation from the Nigerian judiciary to specifically interpret section 143 of the 1999 Constitution of the Federal Republic of Nigeria as amended as it concerns the impeachment of the President/Vice President since no President/Vice President has so far been impeached since the Nigerian independence.

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However, as observed in a plethora of judicial authorities concerning the interpretation of section 188 of the same constitution which pertains to the impeachment of a Governor/Deputy Governor of a State in Nigeria and which section is in pari materia with the section 143 under discussion, the courts have stoutly and consistently held that the ouster clause of 188 (10) could not stop the court from inquiring into impeachment exercise if procedures stipulated in section 188 (2) to (9) were not strictly followed by the members of the House of Assembly during the impeachment exercise.

Therefore, any breach, omission or failure to comply with the procedures laid down in or in between sections 188 (2) to (9) by the members of the State House of Assembly in the exercise of their powers to impeach a Governor, the powers conferred on the courts by section 6 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended is automatically restored to wade in a void or nullify the impeachment exercise. Simply put, where in the process of impeaching a Governor, the House of Assembly does not strictly comply with the procedures spelt out in 188 (2) to (9) of the Constitution, the court has the powers to interfere in the process; notwithstanding the provisions of section 188 (10).

In INAKOJU & ORS V. ADELEKE & ORS (2007) LPELR-1510 PP. 220 – 222 (SC), the law lord, NIKI TOBI, J.S.C (of blessed memory) in the lead judgment interpreting section 188 above as to the mandatoriness of complying with the provisions of section 188 (2) to (9) of the Constitution in the impeachment of the Governor of Oyo State held thus:

“… It can be seen that the draftsmen, were alert in respect of the seriousness or magnitude of the removal of a Governor or his Deputy. They chose their words and every word in this section or provision, is weighty and material. Therefore, in the removal of such officers, the procedure clearly specified, must be followed and strictly complied with before such removal becomes valid and constitutional. Any breach of any of the said provisions, surely and certainly, renders such removal ineffective, null and void and of no effect. It is now settled firstly, that where a statute or Constitution, prescribes a procedure for seeking a remedy or the doing of anything or act and the language used is clear and unambiguous, (as in the above section) that is the only procedure open to the parties concerned and any departure therefrom will be an exercise in futility…. In summary, in my respectful and firm view, it is only when the provisions of section 188 (1) – (9) which I hold are conditions precedent, are complied with, that sub-section 10 thereof, will be relevant and can be invoked and be relied on. A subsection of a section is only a part of that section and it cannot be read in isolation”.

Lastly, it is within the discretion of the National Assembly to determine what amounts to a ‘gross misconduct’ in their opinion. See section 188 (11) above. The foregoing are the constitutional procedures to impeach a Nigerian President.

Why IT Will Be Near Impossible to Impeach A Nigerian President

While there is a deluge of cases of impeachment of Governors/Deputy Governors in Nigeria, there is thus far, none pertaining to the Presidency; and it seems there will still be none in the distant future (all current Nigerian factors remaining constant). Mr. Peter Obi whose discussion partially informed this article is himself, no stranger to impeachment having been impeached in November 2006 during his first tenure as the Governor of Anambra State; at least before the judiciary came to his rescue. In recent times, the Deputy Governors of Imo, Kogi and Zamfara States have been impeached (while that of Oyo State is currently in the pipeline), just to mention a few.

However, it seems the odds are entirely different when the nation’s number one seat is concerned. This is due to a number of factors some of which include:

1. The Ethno-Religious Nature of Nigerian Politics Especially At Federal Level: Party supremacy is subtly a hoax in Nigeria. While political parties no doubt, wield big influence on their members in the National Assembly, it seems that when the chips are down, their members in the National Assembly are ever ready to throw parties’ interests under the bus in favour of their ethnic interests.

Experience shows that in the National Assembly, critical decisions of national importance have always been taken in line with members’ heterogeneous ethnoreligious persuasions rather than political parties. This is nonetheless understandable because due to Nigerian configurations dating back to the Lord Fredrick Lugard amalgamation of 1914, more Nigerians – irrespective of exposure and social status, tend to pay more allegiance to their various ethnic regions than they pay to the country itself or political party.

What the foregoing means, therefore, is that if a question of impeachment of the Nigerian President arises, regardless of the party differences and/or minority of the president’s political party in the National Assembly, the pros and cons of such impeachment would likely be weighed in the light of the ethnoreligious periscope of the members of the National Assembly which the likely consequence is an alliance between members that share same ethnoreligious heritage with the embattled President with a view to denying the rest of the Members the necessary two-third majority necessary for the impeachment.

The National Assembly Members who share the same ethnic or religious heritage with an under-fire President would also likely come under pressure from their constituents, opinion leaders, or traditional leaders, who would weigh in to save their ‘son’ from being nationally disgraced.

If we compare the foregoing paragraph with what transpires in the process of impeaching a Governor of a State under section 188, the element of heterogeneity among the Members of the State House of Assembly is lacking and this makes a whole lot of difference. The fear or concern of conceding the seat of the impeached Governor to a person of a different tribe or religion is less.

2. The Complexity of The House Of Representatives: On a lighter note, if there is one thing that entertains and probably thrills a by-standing Nigerian about the National Assembly, it is the occasional chaotic and often times, grandstanding theatrics of the Members of the House of Representatives. Unlike the relatively servile 109 Members of the Senate, the 360 Members of the House of Representatives are quite virile and abrasive in the discharge of their work; even if these attributes are un-parliamentary and should not be.

A potentially cantankerous exercise like the impeachment of a Nigerian President may not raise too much dust among the Senators. However, the same cannot be said of the House of Representatives. Past experiences show that rancour and hostility that will greet the impeachment process among the Members of the House of Representatives are capable of pushing the notoriously combustible and ferocious Members to the brink of free for all fights between those in support and those against; a situation that could inevitably see such a move end in deadlock; forcing such a motion to be withdrawn in the interest of peace and harmony of the National Assembly.

3. The Power of Incumbency And Nigerian Factors: Any person that underestimates the power of incumbency and Nigerian factors in Nigerian politics is probably a novice to the Nigerian polity. As a matter of fact, it is no coincidence that so far in Nigeria, a political party that produces the President usually also has the majority in the National Assembly.

Where, however in a rare case scenario where the party with the minority seats at the National Assembly produces the President, the Nigerian factors are ever there to cause a mass exodus of the opposition members to the President’s party. This has been proved to be correct at the state level, and I do not think it will change at the federal level. There are myriad instances where a new Governor of a state emerged from a minority party or defected to another political party and consequently caused the (majority) members of the House of Assembly to follow suit.

To mention a few, in Imo State when the Supreme Court declared Mr. Hope Uzodinma of the APC as the governor of Imo State, the hitherto PDP-controlled Imo State House of Assembly saw her members (including the Speaker) massively defect to the new Governor’s party, the APC. Again, in Zamfara and Ebonyi States, their Governors defected from the PDP to the APC and quickly, the majority of the members of their Houses of Assembly also followed suit; and the immediate former Deputy Governor of Zamfara State who dared to refuse decamping with the Governor was impeached as a consequence while Members of the Ebonyi State House of Assembly who refused to decamp with the Governor either got suspended over frivolous allegations or had their seats illegally declared vacant by the Speaker at the alleged behest of the Governor. This is the power of incumbency and the Nigerian factor in action and it will work in favour of any Nigerian President.

Of course, I am not oblivious of the provisions of section 109 (1) (g) of the 1999 Constitution as amended which provides for the seats of any parliamentary decampee to be declared vacant; however, the Nigerian factors seem to have swallowed the above provision and made it ineffectual; if not for occasional court judgments that tend to checkmate the anomaly.

From the foregoing, it is safe to hold that the enormous political and economic powers wielded by the President seem to make it impossible for him to be removed even when he has clearly committed an impeachable wrong; the same powers make it very easy for him to woo members of other political parties into his own because he who pays the piper dictates the tune.

4. Lack of Political Will Among the Members of the National Assembly: The members of the National Assembly have always been lacklustre in taking tough decisions against the interest of the President; even their powers to veto the withholding of assent by the President have scarcely ever been exercised; notwithstanding that this is even easier to exercise than the power to impeach.

Amongst the many arguably impeachable offences that the current President Mohammadu Buhari has clearly committed, impeachment has been the least option in the mind of the National Assembly Members even when it ought to have been considered. This is a clear case of lacking the political will by the members of the National Assembly to do their work in this regard; this has not only reduced them to mere paupers of the President but also reinforced the impunity in the system since no one can hold the “almighty” President to an account.

• CONCLUSION:

From the foregoing, given the current realities in Nigeria which I sum up as the ‘Nigerian factors’, the concept of impeaching a Nigerian President as cosmetically provided for in section 143 of the 1999 Constitution of the Federal Republic of Nigeria as amended is a mere myth that constitutional lawyers and law students alike savour for their academic and/or jurisprudential satisfaction; it has no place within the prisms of the Nigerian political reality even if the President’s political party holds the minority stake in the National Assembly. It is a near impossibility; just to put it mildly.

Isaac Mmaduabuchi Okeh, Esq. is a lawyer and political commentator. You may reach him on +2348063713472 or okehisaac33@gmail.com.