Abuse of powers of impeachment in Nigeria
Identifieur interne : 004443 ( Istex/Corpus ); précédent : 004442; suivant : 004444Abuse of powers of impeachment in Nigeria
Auteurs : Mamman LawanSource :
- The Journal of Modern African Studies [ 0022-278X ] ; 2010-06.
Abstract
The powers of impeachment provided under the Nigerian constitution provide a means of checking the excesses of certain executive officers who enjoy the privilege of constitutional immunity against civil or criminal proceedings while they remain in office. Instead of being invoked in appropriate circumstances, however, this article shows that these powers have been abused. It examines cases of impeachment at the state level during the Obasanjo administration and shows how constitutional provisions were flagrantly breached. It provides evidence that the federal government was complicit in such cases, even though under the federal structure by which Nigeria operates, impeachment at the state level is exclusively a state business. It argues that the abuses are a symptom of imbalance of power between the executive and the legislature as well as evidence of the limits of constitutionalism in the face of politics.
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DOI: 10.1017/S0022278X10000212
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<record><TEI wicri:istexFullTextTei="biblStruct"><teiHeader><fileDesc><titleStmt><title xml:lang="en">Abuse of powers of impeachment in Nigeria</title><author><name sortKey="Lawan, Mamman" sort="Lawan, Mamman" uniqKey="Lawan M" first="Mamman" last="Lawan">Mamman Lawan</name><affiliation><mods:affiliation>Faculty of Law, Bayero University, Kano, Nigeria Email: yusufaari@gmail.com</mods:affiliation></affiliation></author></titleStmt><publicationStmt><idno type="wicri:source">ISTEX</idno><idno type="RBID">ISTEX:899A3C98ED3E064047572BBAC645EB119FE8CCCE</idno><date when="2010" year="2010">2010</date><idno type="doi">10.1017/S0022278X10000212</idno><idno type="url">https://api.istex.fr/document/899A3C98ED3E064047572BBAC645EB119FE8CCCE/fulltext/pdf</idno><idno type="wicri:Area/Istex/Corpus">004443</idno><idno type="wicri:explorRef" wicri:stream="Istex" wicri:step="Corpus" wicri:corpus="ISTEX">004443</idno></publicationStmt><sourceDesc><biblStruct><analytic><title level="a" type="main" xml:lang="en">Abuse of powers of impeachment in Nigeria</title><author><name sortKey="Lawan, Mamman" sort="Lawan, Mamman" uniqKey="Lawan M" first="Mamman" last="Lawan">Mamman Lawan</name><affiliation><mods:affiliation>Faculty of Law, Bayero University, Kano, Nigeria Email: yusufaari@gmail.com</mods:affiliation></affiliation></author></analytic><monogr></monogr><series><title level="j">The Journal of Modern African Studies</title><title level="j" type="abbrev">J. Mod. Afr. Stud.</title><idno type="ISSN">0022-278X</idno><idno type="eISSN">1469-7777</idno><imprint><publisher>Cambridge University Press</publisher><pubPlace>Cambridge, UK</pubPlace><date type="published" when="2010-06">2010-06</date><biblScope unit="volume">48</biblScope><biblScope unit="issue">2</biblScope><biblScope unit="page" from="311">311</biblScope><biblScope unit="page" to="338">338</biblScope></imprint><idno type="ISSN">0022-278X</idno></series></biblStruct></sourceDesc><seriesStmt><idno type="ISSN">0022-278X</idno></seriesStmt></fileDesc><profileDesc><textClass></textClass><langUsage><language ident="en">en</language></langUsage></profileDesc></teiHeader><front><div type="abstract" xml:lang="en">The powers of impeachment provided under the Nigerian constitution provide a means of checking the excesses of certain executive officers who enjoy the privilege of constitutional immunity against civil or criminal proceedings while they remain in office. Instead of being invoked in appropriate circumstances, however, this article shows that these powers have been abused. It examines cases of impeachment at the state level during the Obasanjo administration and shows how constitutional provisions were flagrantly breached. It provides evidence that the federal government was complicit in such cases, even though under the federal structure by which Nigeria operates, impeachment at the state level is exclusively a state business. It argues that the abuses are a symptom of imbalance of power between the executive and the legislature as well as evidence of the limits of constitutionalism in the face of politics.</div></front></TEI><istex><corpusName>cambridge</corpusName><author><json:item><name>Mamman Lawan</name><affiliations><json:string>Faculty of Law, Bayero University, Kano, Nigeria Email: yusufaari@gmail.com</json:string></affiliations></json:item></author><articleId><json:string>00021</json:string></articleId><arkIstex>ark:/67375/6GQ-N0FM7D2Q-S</arkIstex><language><json:string>eng</json:string></language><originalGenre><json:string>research-article</json:string></originalGenre><abstract>The powers of impeachment provided under the Nigerian constitution provide a means of checking the excesses of certain executive officers who enjoy the privilege of constitutional immunity against civil or criminal proceedings while they remain in office. Instead of being invoked in appropriate circumstances, however, this article shows that these powers have been abused. It examines cases of impeachment at the state level during the Obasanjo administration and shows how constitutional provisions were flagrantly breached. It provides evidence that the federal government was complicit in such cases, even though under the federal structure by which Nigeria operates, impeachment at the state level is exclusively a state business. It argues that the abuses are a symptom of imbalance of power between the executive and the legislature as well as evidence of the limits of constitutionalism in the face of politics.</abstract><qualityIndicators><score>8.668</score><pdfWordCount>12077</pdfWordCount><pdfCharCount>67127</pdfCharCount><pdfVersion>1.3</pdfVersion><pdfPageCount>28</pdfPageCount><pdfPageSize>431 x 646 pts</pdfPageSize><refBibsNative>true</refBibsNative><abstractWordCount>139</abstractWordCount><abstractCharCount>920</abstractCharCount><keywordCount>0</keywordCount></qualityIndicators><title>Abuse of powers of impeachment in Nigeria</title><pii><json:string>S0022278X10000212</json:string></pii><genre><json:string>research-article</json:string></genre><host><title>The Journal of Modern African Studies</title><language><json:string>unknown</json:string></language><issn><json:string>0022-278X</json:string></issn><eissn><json:string>1469-7777</json:string></eissn><publisherId><json:string>MOA</json:string></publisherId><volume>48</volume><issue>2</issue><pages><first>311</first><last>338</last><total>28</total></pages><genre><json:string>journal</json:string></genre></host><ark><json:string>ark:/67375/6GQ-N0FM7D2Q-S</json:string></ark><publicationDate>2010</publicationDate><copyrightDate>2010</copyrightDate><doi><json:string>10.1017/S0022278X10000212</json:string></doi><id>899A3C98ED3E064047572BBAC645EB119FE8CCCE</id><score>1</score><fulltext><json:item><extension>pdf</extension><original>true</original><mimetype>application/pdf</mimetype><uri>https://api.istex.fr/document/899A3C98ED3E064047572BBAC645EB119FE8CCCE/fulltext/pdf</uri></json:item><json:item><extension>zip</extension><original>false</original><mimetype>application/zip</mimetype><uri>https://api.istex.fr/document/899A3C98ED3E064047572BBAC645EB119FE8CCCE/fulltext/zip</uri></json:item><json:item><extension>txt</extension><original>false</original><mimetype>text/plain</mimetype><uri>https://api.istex.fr/document/899A3C98ED3E064047572BBAC645EB119FE8CCCE/fulltext/txt</uri></json:item><istex:fulltextTEI uri="https://api.istex.fr/document/899A3C98ED3E064047572BBAC645EB119FE8CCCE/fulltext/tei"><teiHeader><fileDesc><titleStmt><title level="a" type="main" xml:lang="en">Abuse of powers of impeachment in Nigeria</title></titleStmt><publicationStmt><authority>ISTEX</authority><publisher scheme="https://publisher-list.data.istex.fr">Cambridge University Press</publisher><pubPlace>Cambridge, UK</pubPlace><availability><licence><p>Copyright © Cambridge University Press 2010</p></licence><p scheme="https://loaded-corpus.data.istex.fr/ark:/67375/XBH-G3RCRD03-V">cambridge</p></availability><date>2010</date></publicationStmt><notesStmt><note type="research-article" scheme="https://content-type.data.istex.fr/ark:/67375/XTP-1JC4F85T-7">research-article</note><note type="journal" scheme="https://publication-type.data.istex.fr/ark:/67375/JMC-0GLKJH51-B">journal</note><note>I am grateful to my supervisor, Professor Shaheen Ali, and my PhD colleagues at the University of Warwick Law School, particularly Chikosa Silungwe and Nathan Tuimising, for their comments on an early draft of this paper. I also appreciate the comments of the participants at the Socio-Legal Studies Association (SLSA) Conference held in April 2009 at De Montfort University, Leicester, UK, where I presented a version of the paper. Finally, I am grateful to the anonymous reviewers of the paper for their insightful comments.</note></notesStmt><sourceDesc><biblStruct type="inbook"><analytic><title level="a" type="main" xml:lang="en">Abuse of powers of impeachment in Nigeria</title><author xml:id="author-0000"><persName><forename type="first">Mamman</forename><surname>Lawan</surname></persName><affiliation>Faculty of Law, Bayero University, Kano, Nigeria Email: yusufaari@gmail.com</affiliation></author><idno type="istex">899A3C98ED3E064047572BBAC645EB119FE8CCCE</idno><idno type="ark">ark:/67375/6GQ-N0FM7D2Q-S</idno><idno type="DOI">10.1017/S0022278X10000212</idno><idno type="PII">S0022278X10000212</idno><idno type="article-id">00021</idno></analytic><monogr><title level="j">The Journal of Modern African Studies</title><title level="j" type="abbrev">J. Mod. Afr. Stud.</title><idno type="pISSN">0022-278X</idno><idno type="eISSN">1469-7777</idno><idno type="publisher-id">MOA</idno><imprint><publisher>Cambridge University Press</publisher><pubPlace>Cambridge, UK</pubPlace><date type="published" when="2010-06"></date><biblScope unit="volume">48</biblScope><biblScope unit="issue">2</biblScope><biblScope unit="page" from="311">311</biblScope><biblScope unit="page" to="338">338</biblScope></imprint></monogr></biblStruct></sourceDesc></fileDesc><profileDesc><creation><date>2010</date></creation><langUsage><language ident="en">en</language></langUsage><abstract xml:lang="en" style="normal"><p>The powers of impeachment provided under the Nigerian constitution provide a means of checking the excesses of certain executive officers who enjoy the privilege of constitutional immunity against civil or criminal proceedings while they remain in office. Instead of being invoked in appropriate circumstances, however, this article shows that these powers have been abused. It examines cases of impeachment at the state level during the Obasanjo administration and shows how constitutional provisions were flagrantly breached. It provides evidence that the federal government was complicit in such cases, even though under the federal structure by which Nigeria operates, impeachment at the state level is exclusively a state business. It argues that the abuses are a symptom of imbalance of power between the executive and the legislature as well as evidence of the limits of constitutionalism in the face of politics.</p></abstract></profileDesc><revisionDesc><change when="2010-06">Published</change></revisionDesc></teiHeader></istex:fulltextTEI></fulltext><metadata><istex:metadataXml wicri:clean="corpus cambridge not found" wicri:toSee="no header"><istex:xmlDeclaration>version="1.0" encoding="US-ASCII"</istex:xmlDeclaration><istex:docType PUBLIC="-//NLM//DTD Journal Publishing DTD v2.2 20060430//EN" URI="journalpublishing.dtd" name="istex:docType"></istex:docType><istex:document><article dtd-version="2.2" article-type="research-article" xml:lang="EN"><front><journal-meta><journal-id journal-id-type="publisher-id">MOA</journal-id><journal-title>The Journal of Modern African Studies</journal-title><abbrev-journal-title>J. Mod. Afr. Stud.</abbrev-journal-title><issn pub-type="ppub">0022-278X</issn><issn pub-type="epub">1469-7777</issn><publisher><publisher-name>Cambridge University Press</publisher-name><publisher-loc>Cambridge, UK</publisher-loc></publisher></journal-meta><article-meta><article-id pub-id-type="doi">10.1017/S0022278X10000212</article-id><article-id pub-id-type="pii">S0022278X10000212</article-id><article-id pub-id-type="publisher-id">00021</article-id><title-group><article-title>Abuse of powers of impeachment in Nigeria<xref ref-type="fn" rid="fn01a">*</xref></article-title><alt-title alt-title-type="left-running">MAMMAN LAWAN</alt-title><alt-title alt-title-type="right-running">ABUSE OF IMPEACHMENT IN NIGERIA</alt-title><fn-group><fn id="fn01a" symbol="*" fn-type="other"><label>*</label><p>I am grateful to my supervisor, Professor Shaheen Ali, and my PhD colleagues at the University of Warwick Law School, particularly Chikosa Silungwe and Nathan Tuimising, for their comments on an early draft of this paper. I also appreciate the comments of the participants at the Socio-Legal Studies Association (SLSA) Conference held in April 2009 at De Montfort University, Leicester, UK, where I presented a version of the paper. Finally, I am grateful to the anonymous reviewers of the paper for their insightful comments.</p></fn></fn-group></title-group><contrib-group><contrib><name><surname>Lawan</surname><given-names>Mamman</given-names></name><xref ref-type="aff" rid="aff001"></xref></contrib></contrib-group><aff id="aff001"><addr-line>Faculty of Law</addr-line>, <institution>Bayero University</institution>, <addr-line>Kano</addr-line>, <country>Nigeria</country> Email: <email xlink:href="yusufaari@gmail.com">yusufaari@gmail.com</email></aff><pub-date pub-type="ppub"><month>06</month><year>2010</year></pub-date><volume>48</volume><issue>2</issue><fpage seq="8">311</fpage><lpage>338</lpage><permissions><copyright-statement>Copyright © Cambridge University Press 2010</copyright-statement><copyright-year>2010</copyright-year><copyright-holder>Cambridge University Press</copyright-holder></permissions><abstract abstract-type="normal"><title>ABSTRACT</title><p>The powers of impeachment provided under the Nigerian constitution provide a means of checking the excesses of certain executive officers who enjoy the privilege of constitutional immunity against civil or criminal proceedings while they remain in office. Instead of being invoked in appropriate circumstances, however, this article shows that these powers have been abused. It examines cases of impeachment at the state level during the Obasanjo administration and shows how constitutional provisions were flagrantly breached. It provides evidence that the federal government was complicit in such cases, even though under the federal structure by which Nigeria operates, impeachment at the state level is exclusively a state business. It argues that the abuses are a symptom of imbalance of power between the executive and the legislature as well as evidence of the limits of constitutionalism in the face of politics.</p></abstract><counts><page-count count="28"></page-count></counts><custom-meta-wrap><custom-meta><meta-name>pdf</meta-name><meta-value>S0022278X10000212a.pdf</meta-value></custom-meta></custom-meta-wrap></article-meta></front><body><sec id="sec001" sec-type="intro"><title>INTRODUCTION</title><p>It has long been recognised that the concentration of two or more powers in one body is antithetical to the rule of law. According to Montesquieu (<xref ref-type="bibr" rid="ref011">1949</xref>: 152), ‘there would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of trying the causes of individuals’. It has therefore become normal for states to separate power between the legislative, executive and judicial arms of government. Not only must power be separated; one power must be a check to another to prevent abuse because ‘constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go’ (<italic>ibid</italic>.: 150).<xref ref-type="fn" rid="fn001"><sup>1</sup></xref></p><p>Nigeria has followed the tradition of separation of powers. The Constitution of the Federal Republic of Nigeria <xref ref-type="bibr" rid="ref004">1999</xref> (sections 4, 5, 6) contains explicit provisions on it. It has also made provision for checks and balances between the arms of government. For instance, in addition to the law-making function of the legislature, it also checks the executive in a number of ways. One of these ways is impeachment, the subject of this article.<xref ref-type="fn" rid="fn002"><sup>2</sup></xref> Neither a president nor a vice-president has yet been impeached in Nigeria. But a number of state governors have been impeached, the first case being that of the governor of Kaduna State in the Second Republic, Alhaji Balarabe Musa. All the remaining cases have happened in the Third Republic, during the tenure of President Olusegun Obasanjo (1999–2007), when five governors were impeached in succession.</p><p>This article examines the five impeachments that took place at state level during the Obasanjo regime. It shows that though the powers of impeachment are relevant because they provide means of subjecting the president, vice-president, governors and deputy governors to law, notwithstanding the immunity they enjoy against civil or criminal proceedings, such powers have been flagrantly abused. Nigeria operates a federal structure of government (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: section 2 (2)); and impeachment at the state level lies entirely within the jurisdiction of the state concerned. But evidence shows the complicity of the federal government in the abuse. The picture that emerges is the dominance of federal executive power over other parts of government, particularly as against the states. In the end, law suffered at the hands of politics.</p></sec><sec id="sec002"><title>RELEVANCE OF IMPEACHMENT</title><p>The powers of impeachment are vested in the National Assembly<xref ref-type="fn" rid="fn003"><sup>3</sup></xref> at the federal level, and in the State Houses of Assembly<xref ref-type="fn" rid="fn004"><sup>4</sup></xref> at the state level. The executive officers liable to be impeached are the president, vice-president, governors and deputy governors. The powers were provided for the first time during the Second Republic under sections 132 (1) and 170 (1) of the 1979 constitution. After a long military interregnum, civilian rule was restored in 1999. The current 1999 constitution maintained those provisions under sections 143 (1) (applicable to the president and vice president) and 188 (1) (applicable to governors and deputy governors). The sections have identical provisions: ‘The President [Governor] or Vice-President [Deputy Governor] may be removed from office in accordance with the provisions of this section [i.e. section 143 or 188].’</p><p>The powers are relevant for the purpose of checking executive power. Because there are other checking mechanisms, impeachment is normally resorted to in extreme circumstances. It provides means of ‘trying’ the executive officers for ‘offences’ they have committed while in office. These officers enjoy constitutional immunity against trial as long as they remain in office. By being subject to the impeachment process, they are not kept above the law. Just as an ordinary person would face trial (before conventional courts) for committing offences, these officers too face ‘trial’ in a special way before the legislature. The officers subject to impeachment are those who enjoy the immunity. The immunity provision is contained under section 308 (1) of the Constitution (<xref ref-type="bibr" rid="ref004">1999</xref>)
as follows:<list list-type="number"><list-item><label>(a)</label><p>no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;</p></list-item><list-item><label>(b)</label><p>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</p></list-item><list-item><label>(c)</label><p>no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.</p></list-item></list>Section 308 (3) defines ‘a person to whom this section applies’ as ‘a person holding the office of President or Vice-President, Governor or Deputy Governor’; and under sub-section (2) it notes as exceptions civil proceedings in the official, and criminal proceedings in the nominal, capacities of the officers (<italic>ibid</italic>.: 308 (1, 2)). The immunity provision has been judicially considered and upheld in a number of cases, including <italic>Duke</italic> v. <italic>Global Excellence Communication Ltd</italic> (5 NWLR 2007: Pt. 1026: 81), <italic>Alamieyeseigha</italic> v. <italic>Yeiwa</italic> (7 NWLR 2002: Pt. 797: 600–1), and <italic>Tinubu</italic> v. <italic>I.M.B. Securities Plc</italic> (16 NWLR 2001: Pt. 470: 670).</p><p>Because the officers are subject to this special trial, it could be argued that equality of all persons before the law is ensured. The constitution upholds the principle of equality under its social objectives. Under section 17 (1), it states that the state social order is founded on the ideals of freedom, equality and justice; and in furtherance of this order, ‘every citizen shall have equality of rights, obligations and opportunities before the law’ (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 17 (2)). It also prohibits ‘discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties’ (<italic>ibid</italic>.: 15 (2)). It is despite this equality provision that the immunity is granted. The constitution seems to have suspended the equality principle when, in granting the immunity under section 308 (1), it states expressly that it is ‘notwithstanding anything to the contrary in this Constitution’. Were it not for impeachment, therefore, it would be a contradiction to uphold both immunity and equality at the same time. There would be no equality if for instance a president or governor who fraudulently deals with public funds in his control hides under the cover of immunity during his term of office. This would have been a wrong for which the law provided no remedy at least during a particular period.</p><p>Thus impeachment tells us that punishment or liability imposed by the judicial system is not the only sanction for wrongdoing. The law could, and in fact does, provide other means by which executive offenders are sanctioned. Jurisprudence accepts immunity provisions sitting side by side with the principle of equality. It is public policy which dictates that the immune officers should have special powers and privileges so that they are free from fear of possible trial while on duty. However, they are to enjoy these powers and privileges to the extent it is necessary; and the powers and privileges are not meant to exempt them from ordinary law (Dicey <xref ref-type="bibr" rid="ref005">1959</xref>: 194; Wade <xref ref-type="bibr" rid="ref019">2004</xref>: 22). This is why, when they break the law, impeachment powers (what could be termed Dicey's ‘official law’) may be invoked. Impeachment is therefore relevant because it subjects to law, albeit in a special way, officers who would otherwise have been shielded by the same law.</p></sec><sec id="sec003"><title>GROUNDS FOR IMPEACHMENT</title><p>The ground for impeachment is provided by sections 143 (2) (b) and 188 (2) (b) of the constitution, according to which the procedure for impeachment shall be commenced:<disp-quote><p>Whenever a notice of any allegation in writing signed by not less than one-third of the members of the National Assembly [or House of Assembly] – (a) is presented to the President of the Senate [or Speaker of the House of Assembly of the State]; (b) stating that the holder of the office of President [Governor] or Vice-President [Deputy Governor] is guilty of gross misconduct in the performance of the functions of his office …</p></disp-quote>Thus the constitution provides for only one omnibus ground for impeachment in the form of ‘any allegation … of gross misconduct’. It defines ‘gross misconduct’ as a grave violation or breach of the provisions of the constitution or a misconduct of such nature as amounts, in the opinion of the legislature, to gross misconduct (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 143 (1), 188 (1)). This definition is imprecise, and gives room for interpretation. A violation or breach of the provisions of the constitution may not be difficult to establish. For instance, it would amount to a breach of the provisions of the constitution for the president to withdraw money from the consolidated revenue fund without authorisation by the National Assembly except in case of emergency.<xref ref-type="fn" rid="fn005"><sup>5</sup></xref> Cases of corruption in the form of siphoning public funds can also be accommodated under this definition, because section 15 and the fifth schedule to the constitution have both prohibited corruption. The definition seems to leave out the breach or violation of other laws as a ground for impeachment by expressly stating ‘violation or breach of <italic>the provisions of the Constitution</italic>’ (emphasis added). Unlike the Malawian constitution for instance, the Nigerian constitution is silent on any breach or violation which occurred prior to assumption of office.<xref ref-type="fn" rid="fn006"><sup>6</sup></xref> It is also unclear as to what would amount to ‘a grave’ violation or breach. Perhaps it would require a judicial interpretation to know exactly what this means.</p><p>The second leg of the definition, which leaves the meaning of the phrase ‘gross misconduct’ to the opinion of the legislature, poses a difficulty because the determining test is a subjective one. It suggests that, provided in the opinion of the legislature an act amounts to gross misconduct, so shall it be. Violation or breach of other laws which seem to have been excluded in the first leg of the definition may therefore be accommodated under the second leg. And from judicial attitudes to ‘subjective’ phrases, it is likely that courts would interpret it literally. For instance, in <italic>Akintola</italic> v. <italic>Adegbenro</italic> (1 All NLR 1962: 461), the Privy Council interpreted ‘as it appears to him’ in section 33 (10) of the constitution of Western Nigeria literally in holding that the governor was right in removing the premier of Western Nigeria when it ‘appeared to him’ that the premier no longer commanded the respect of the majority of the members of the House of Assembly. Such discretion to determine what amounts to gross misconduct may be abused, especially in cases where a majority of the legislators belong to an opposition party, as happened in the impeachment of the governor of Kaduna State, Alhaji Balarabe Musa.</p><p>It may be pertinent to ask what the scope of misconduct is as a ground for impeachment. The constitution unambiguously answers this question when it provides that the alleged misconduct must relate to the performance of official functions (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 143 (2), 188 (2)). It therefore excludes misconduct arising from private life. For instance, immoral behaviour such as adulterous relationships, though it may cause public outrage, is not within the ambit of the provision to warrant exercise of the power of impeachment.</p><p>There is no doubt that the provision on the grounds of impeachment leaves room for manoeuvre. For a process as serious as impeachment, a clearer provision is needed. It would be better if the constitution clearly specifies what impeachable offences are, so as to avoid abuse of the powers in ambiguous cases. A general clause such as ‘or any other breach of the provisions of the Constitution or other misconduct’ would do no harm if it is preceded by specific provisions, for the general clause would then be interpreted <italic>ejusdem generis</italic> (i.e. as belonging to the same category as the specific provisions). In any event, the provision as it stands is adequate in using the powers of impeachment.</p></sec><sec id="sec004"><title>PROCEDURE FOR IMPEACHMENT</title><p>The constitution stipulates a strict procedure for impeachment, to guard against abuse and ensure that the affected public officers have a fair trial before they are removed from office. The input of ‘outsiders’ is required in the process to avert a situation where a weak legislature may be pressured by the government not to impeach the chief executive even in the face of genuine grounds. Thus an independent body is involved in the investigation of the allegations whilst leaving the final decision on removal to the legislature. This approach is normally adopted where the chief executive is directly elected (Hatchard <xref ref-type="bibr" rid="ref008">2000</xref>).</p><p>The procedure for impeachment is the same whether it is exercised by the National Assembly at the federal level against the president or vice-president, or by a State House of Assembly against a governor or deputy governor. It consists of three stages. At the first stage, the constitution stipulates that an allegation of gross misconduct against an office holder in the performance of his official functions must be stated in a written notice with detailed particulars, signed by not less than one third of the members of the legislature and presented to the President of the Senate or Speaker of the State House of Assembly as the case may be. Within seven days of the receipt of the notice, the president or speaker shall cause a copy thereof to be served on the holder of the office and on each member of the legislature and shall also cause any reply to the allegation to be served on each member (<italic>ibid</italic>.: 143 (2), 188 (2)).</p><p>Whether or not there is a reply to the allegation, each chamber of the National Assembly or the House of Assembly shall, within fourteen days of the presentation of the notice, resolve by motion without debate whether or not the allegation shall be investigated (<italic>ibid</italic>.: 143 (3), 188 (3)). A motion to investigate shall be declared as having been passed if it is supported by the votes of not less than two thirds of all the members of each chamber of the National Assembly or of all the members of the House of Assembly (<italic>ibid</italic>.: 143 (5), 188 (5)).</p><p>It is at the second stage that the process goes beyond the legislature. Within seven days of the passing of the motion, the Chief Justice of Nigeria or the Chief Judge of the State as the case may be shall, at the request of the Senate president or speaker, appoint a panel of seven persons who in his opinion are of unquestionable integrity to investigate the allegation. These persons must not be members of any public service, legislative house or political party (<italic>ibid</italic>.: 143 (5), 188 (5)). In order to ensure a fair hearing, the holder of the office is entitled to defend himself in person or to be represented by a legal practitioner of his own choice during the proceedings (<italic>ibid</italic>.: 143 (6), 188 (6)). The panel shall have powers and exercise functions as prescribed by the legislature; and shall report its findings to each chamber of the National Assembly or to the House of Assembly within three months of its appointment (<italic>ibid</italic>.: 143 (7), 188 (7)). Where it found that the allegation has not been proved, the issue terminates (<italic>ibid</italic>.: 143 (8), 188 (8)).</p><p>If however the panel reports that the allegation has been proved, the final stage of the procedure starts. Within fourteen days of receipt, each chamber of the National Assembly or the House of Assembly shall consider the report, and if the report is adopted by a resolution of each of the chambers or the House of Assembly, supported by not less than a two-thirds majority of all its members, the holder of the office stands removed as from the date of the adoption (<italic>ibid</italic>.: 143 (9), 188 (9)). It is not clear however what the word ‘consider’ means here. Does it mean a debate on the report or does it include seeking for a clarification thereon? It may seem plausible to assume that further hearing is excluded since the fact-finding aspect has been delegated to the panel. Thus the legislature is to take a position based on the findings.</p><p>It is interesting to note that the jurisdiction of courts regarding the proceedings or determination of the panel or the legislature or any matter relating thereto has been ousted by the constitution (<italic>ibid</italic>.: 143 (10), 188 (10)). The approach of the lower courts to this provision seems to be literal: i.e. they simply do not assume jurisdiction.<xref ref-type="fn" rid="fn007"><sup>7</sup></xref> But the Court of Appeal recently held that the jurisdiction of courts is ousted only if the procedure outlined in sections 188 (1)–(9) of the constitution is complied with (<italic>Vanguard</italic> 6.11.2006).<xref ref-type="fn" rid="fn008"><sup>8</sup></xref></p><p>The impeachment procedure outlined above may not be perfect. But it is adequate to ensure investigation of alleged gross misconduct in accordance with the principles of natural justice. However, as shown below, the impeachments that took place in Nigeria have largely breached this procedure. They reveal among other things non-compliance with the number requirement, tampering with the offices of the Speaker of House of Assembly and of the Chief Judge, sittings at odd times of the day, acting on an interim report of panel of investigation, or even acting without a report at all. To make matters worse, the federal government was complicit in all this mess.</p></sec><sec id="sec005"><title>ABUSE OF POWERS OF IMPEACHMENT</title><p>Although there were allegations of abuse of power in the impeachment of Balarabe Musa in the Second Republic,<xref ref-type="fn" rid="fn009"><sup>9</sup></xref> these were slight compared with what happened in the second term of President Obasanjo. There was no case which scaled the third stage of the procedure in compliance with the constitution. One common problem was an insufficiency in the number of legislators wishing to get the governor impeached. While it was not difficult to get one third of them to sign written notices of allegations against the governors at the initial stage, getting two thirds to resolve that the matter be investigated at the second part of the initial stage, and to adopt the report of the investigating panel (where a verdict of guilty was reached) at the final stage, was difficult.</p><p>The impeachment of the governor of Bayelsa State, Diphriye Alamieyeseigha, was the first to show abuse of the powers of impeachment. The State House of Assembly consisted of twenty-four members, of whom fifteen impeached the governor (<italic>ThisDay</italic> 13.11.2006). While fifteen members could initiate the proceedings, having satisfied the one-third requirement at that stage, they fell short of the number required (i.e. at least two thirds or sixteen) to conduct the proceedings at subsequent stages. A similar situation occurred in the impeachment of the governor of Oyo State, Rashid Ladoja. The eighteen members of the House of Assembly who impeached him on 12 January 2006 satisfied the initial one-third requirement, but did not satisfy the two-thirds requirement of the second part of the initial stage and the final stage because the House comprised thirty-two members. To make matters worst, the impeachment took place in a hotel in the capital city, Ibadan. The impeachment of the governor of Plateau State, Joshua Dariye, suffered from the same constitutional breach because only eight out of a 24-member House of Assembly carried out the impeachment. Thus in all the mentioned cases, while section 188 (2) (a) & (b) of the constitution had been complied with, section 188 (4) & (9) had been violated.</p><p>In some cases, the shortfall in the required number of legislators occurred because some members claimed to have declared vacant the seats of other members who had defected to another political party. In such situations, membership of the House was deemed reduced so that the required one third or two thirds were deemed to be of ‘sitting members’ only. To be sure, by section 109 (1) (g) of the constitution a member of a House of Assembly whose election was sponsored by a political party shall vacate his seat if he decamps to another party, unless his former party suffered division or merger with another or other parties. It was on the basis of this provision that the eight members who impeached the governor in Plateau State claimed to have declared vacant the seats of fourteen members, including the speaker, who decamped from the ruling People's Democratic Party (PDP) to a new party, Action Congress (AC). The decamping members were said to be loyal to the governor who apparently shifted support to the vice-president, the founder of AC.</p><p>The case in Oyo State presents a similar scenario. The eighteen members there claimed to have suspended seven members, thereby reducing the membership of the House to twenty-five. If this declaration and subsequent action by the remaining members were constitutional, the impeachment in both cases would be constitutional as well, since the impeaching numbers (eight in Plateau, eighteen in Oyo) were more than two thirds of the ‘sitting’ members (ten in Plateau, twenty-five in Oyo). In the opinion of Lagos Human Rights Activist, Gani Fawehinmi SAN, the impeaching members met the two-thirds requirement going by the constitutional provision, and therefore the impeachments were constitutional (<italic>The Guardian</italic> 14.11.2006). However, as we shall see shortly, the courts gave a contrary opinion.</p><p>It was only in the impeachment of the governor of Ekiti State, Ayo Fayose, and his deputy, Mrs Abiodun Olujimi, on 16 October 2006 that the number requirement of the constitution was satisfied. Here, as many as twenty-four of the 26-member House of Assembly carried out the impeachment. However, this case too is not without problems. In a desperate attempt to impeach a governor, it would not be surprising to see the office of the Chief Judge of the State suffering from abuse of power due to its centrality in the impeachment process. And it is what happened in this case. A panel appointed by the chief judge, Justice Kayode Bamisile, to investigate the governor on allegations of corruption cleared him of the allegations. Apparently unsatisfied, the House suspended the chief judge and replaced him with Justice Jide Aladejana, alleging that he appointed the governor's kinsmen to the panel. Justice Aladejana appointed a new panel which ‘within a matter of minutes … sat and recommended the impeachment of Fayose and Olujimi while the Speaker, Mr. Friday Aderemi, took over as the Acting Governor’ (<italic>ThisDay</italic> 13.11.2006). All the three persons (Fayose, Olujimi and Aderemi) claimed to be Governor of the State at the same time.</p><p>By the provisions of the constitution, the House of Assembly clearly did not have the powers to appoint a chief judge for the state. That power is vested in the governor based on the recommendation of the National Judicial Council, subject to the confirmation of the House (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 271 (1)). The power to remove a chief judge too is vested in the governor based on an address supported by a two-thirds majority of the House praying for such removal (<italic>ibid</italic>.: 292 (1)). The suspension of the chief judge and appointment of another person to the office was therefore <italic>ultra vires</italic> the powers of the House. Assuming without conceding that the acts were constitutional, the impeachment would still remain unconstitutional and an abuse of powers. The finding by the first panel that the governor was innocent of the allegations terminated the matter by virtue of section 188 (8) of the constitution. So constituting another panel over the same issues amounted to subjecting the governor to double jeopardy, something which the constitution would frown at on a plea of <italic>autrefois acquit</italic> (i.e. that he has been acquitted for same offence).<xref ref-type="fn" rid="fn010"><sup>10</sup></xref> Assuming again without conceding that the setting up of the second panel was constitutional, it would be expected that the panel would start afresh with a normal investigation (affording the governor opportunity to defend himself as spelt out by the constitution), and not a hurried one where a verdict of guilt would be passed ‘within a matter of minutes’.</p><p>Nor was the office of the Chief Judge spared in the imbroglio in Plateau State. There, it was the governor who sacked an acting chief judge, Justice Dakyen, who, acting on the orders of six members of the House of Assembly, constituted a panel to investigate allegations of corruption against him (i.e. the governor). The governor claimed to have acted pursuant to section 271 (4) & (5) of the constitution. He replaced the sacked Chief Judge with Justice Yau Dakwang, who immediately announced the dissolution of the panel. The panel ignored the announcement and continued with its investigations. On 13 November 2006, the eight members sat at about 6.00 a.m., received an interim report from the panel, reaffirmed Justice Dakyen as acting chief judge, and ordered the arrest of anybody claiming the office. They then moved to the federal capital, Abuja, and announced the impeachment of the governor (<italic>ThisDay</italic> 10.11.06, 13.11.2006; <italic>Daily Triumph</italic> 13.11.2006, 14.11.2006; <italic>Daily Trust</italic> 13.11.2006).</p><p>It was not only the office of the Chief Judge that suffered from abuse. The office of the Speaker of the House of Assembly also suffered similar fate. The eight members in Plateau State started by impeaching the speaker, Simon Lalong, before six of them ordered the acting chief judge to constitute the panel. The speaker and other members obtained an injunction from Jos High Court, stopping the panel's investigations pending the determination of their suit challenging the constitutionality of the panel and the powers of the six members to commence the impeachment process. The panel obeyed the court order until the newly appointed chief judge announced its dissolution. In Oyo State, the eighteen members by-passed the Speaker of the House, Adeolu Adeleke, as the impeachment notice was served on the governor without the speaker's authority, although the constitution (<xref ref-type="bibr" rid="ref004">1999</xref>: 188 (2)) provides that such notice, signed by at least one third of the members, be served by him.</p><p>The impeachment of the governor of Anambra State, Peter Obi, also leaves no one in doubt about the abuse of constitutional powers in Nigeria. The dust in Ekiti State had barely settled when on 2 November 2006 Obi was impeached by a few members of the House of Assembly. The impeachment was said to have taken place at the early hour of 5.00 a.m., and surprisingly, at the time of the impeachment, the panel constituted by the state chief judge, Justice Chuka Okoli, to investigate allegations of corruption against the governor had yet to submit its report (<italic>ThisDay</italic> 13.11.2006). No matter how unanimous the members and however proven the allegations were, the constitution requires that the report must first be submitted and then adopted by at least two thirds of the members. So what the House did was quite contrary to the provisions of the constitution.</p><p>Given the way in which the constitutional provisions were abused by the various Houses of Assembly, it is not surprising that the courts declared all the impeachments, except that of Alamieyeseigha of Bayelsa State, as null, void and unconstitutional. Nor did the impeachment in Bayelsa go unchallenged. The governor challenged its constitutionality in the High Court. However, the merits of the case were not heard, as the court declined to hear the matter on the grounds of lack of jurisdiction (7 NWLR 2007: Pt. 1034: 506, 524). The governor did not appeal. Had he done so, the impeachment could not have survived, going by subsequent decisions in similar cases. When the High Court in Oyo State declined jurisdiction, the governor there appealed to the Court of Appeal, where his impeachment was unanimously voided. The court held that the number of lawmakers who purported to impeach him fell short of the number required to undertake such an exercise under the constitution. In reference to the sitting in a hotel, the court stated that ‘the House of Assembly of a State comprises all the elected members of the House sitting in an official capacity in its designated chambers as the House of Assembly of a State with Speaker or Deputy Speaker presiding’ (<italic>Vanguard</italic> 6.11.2006).</p><p>The eighteen legislators appealed against the decision of the Court of Appeal to the Supreme Court. The Supreme Court in <italic>Hon. Muyiwa Inakoju & 17 Ors</italic> v. <italic>Hon. Abraham Adeolu Adeleke & 3 Ors</italic> (4 NWLR 2007: Pt. 1025: 423) dismissed the appeal and affirmed the decision of the Court of Appeal. Perhaps considering the gravity of the abuse of constitutional powers, the court gave the matter an accelerated hearing (<italic>Vanguard</italic> 8.12.2006).<xref ref-type="fn" rid="fn011"><sup>11</sup></xref> The Supreme Court held that, the impeachment having breached constitutional provisions, Rasheed Ladoja remained the legally, constitutionally and democratically elected governor of Oyo State.</p><p>The impeachment in Plateau State also reached the appellate courts. The Court of Appeal held the impeachment to be unconstitutional.<xref ref-type="fn" rid="fn012"><sup>12</sup></xref> It did not deny that the fourteen members who decamped to AC vacated their seats by virtue of section 109 (1) (g) of the constitution. But it held that the seats ought to have been filled before commencing the impeachment process. So it was wrong for the speaker <italic>pro tempore</italic> to have signed the impeachment notice. The seven-man panel was also unconstitutional; so was its sitting in the early hours of 13 November 2006; and its interim report was insufficient and null and void. The court ordered that the governor be reinstated, cautioning that ‘removing a Governor is a serious business which should not be reduced to a mere child's play’ (<italic>Daily Triumph</italic> 9.3.2007; <italic>ThisDay</italic> 9.3.2007).</p><p>The Supreme Court finally affirmed the Court of Appeal decision in <italic>Hon. Michael Dapianlong & Ors</italic>. v. <italic>Chief (Dr) Joshua Chibi Dariye & Ors</italic> (8 NWLR 2007, Pt. 1036: 239). The court stated that
<disp-quote><p>the intention of the framers of the Constitution is that the number of the members required to transact the particular business of the legislature is a percentage or proportion of the total number or the totality of the assigned membership of the House under the Constitution. In the instant case it is two-thirds of ALL the members of the Plateau State House of Assembly which is made up of 24 members; that is 16 members … In the instant case, it is not disputed that 8 out of 10 members in a house of 24 membership initiated and carried out the impeachment of the 1st respondent. There is no doubt that there existed in the Plateau State House of Assembly 14 vacant seats as a result of the cross carpeting … It is my view that until the vacancies created by the carpet crossing members are filled by the process of by-election, the Plateau State House of Assembly can only transact such legislative duties that require the participation of less than 2/3 majority of ALL the members of that House, which duties definitely exclude impeachment proceedings.</p></disp-quote>From the foregoing, it is clear that the courts did not base their decisions on the truth or otherwise of the allegations raised against the impeached governors. The decisions were rather based on the procedure laid down by the constitution. So the impeachments were nullified not because there were no grounds for impeachment. In fact, most of the governors had one corruption case or another to answer. For instance, the governor of Plateau State, Joshua Dariye, was arrested in London in 2004 and found with £80,000 cash and over £2 million in his London bank account.<xref ref-type="fn" rid="fn013"><sup>13</sup></xref> He was said to have used a fictitious company ‘to clear cheques meant for the state into his off-shore accounts’ (<italic>Daily Triumph</italic> 13.11.2006). Similarly, the governor of Bayelsa State, Diphriye Alamieyeseigha, was arrested in London in September 2005 and charged with money laundering. The London Metropolitan Police said they found £1 million and €70,000 in his possession. He was also said to own estate in London worth £10 million (<italic>The Punch</italic> 17.9.2005; <italic>ThisDay</italic> 16.9.2005). The former Chairman of the Economic and Financial Crimes Commission (EFCC), Nuhu Ribadu, disclosed that they had substantial evidence of corruption against Governors which included that twenty of them owned choice houses in various parts of London alone (<italic>Daily Trust</italic> 7.10.2003). Governor Ayo Fayose of Ekiti State too was alleged to have laundered money; diverting among others ₦17.8 billion local council funds and ₦13 billion Ekiti Poultry Integrated Project funds. For these reasons, his impeachment was welcomed.<xref ref-type="fn" rid="fn014"><sup>14</sup></xref></p><sec id="sec005-001"><title>The complicity of the federal government</title><p>It needs to be stated that the abuse of the constitutional provisions was not the independent doing of the state legislatures. There is evidence that the federal government stage-managed most of the impeachments. This was mostly done through the EFCC, which is a federal institution. For instance, it was the EFCC which prepared a report indicting Alamieyeseigha of Bayelsa State for corruption and jumping bail in London, and submitted it to the State House of Assembly. It was on the basis of this report that the House impeached him. But he claimed that he was victimised by the presidency because of his support for the vice-president, who had fallen out with the president.</p><p>In the case of Oyo State, it is common knowledge that the eighteen lawmakers acted the script of a federal government-backed ‘king-maker’ politician in the state, Alhaji Lamidi Adedibu, who felt betrayed by the governor for not making financial returns to him. The House of Assembly was split into pro-Adedibu and pro-Ladoja groups, and the eighteen legislators formed the pro-Adedibu group. After they impeached the governor, Adedibu bragged that not even the Supreme Court could return him to power. Adedibu belonged to the ruling PDP and was referred to as the ‘strongman of Ibadan politics’ and the ‘Garrison Commander’. Though he was widely known to be causing violence in the state,<xref ref-type="fn" rid="fn015"><sup>15</sup></xref> President Obasanjo was quoted as saying that he only needed to be managed. In fact the president once visited him in Ibadan and described him as the ‘only Father of PDP’ (<italic>The Guardian</italic> 8.12.2006; <italic>ThisDay</italic> 16.11.2007). It was no wonder then that, despite his causing a breach of the law, the police, a federal institution,<xref ref-type="fn" rid="fn016"><sup>16</sup></xref> looked the other way. The Commissioner of Police in the state, Jonathan Johnson, was said to be an active supporter of Adedibu. At an initial stage of the impeachment process, the eighteen lawmakers were escorted to the House by armed policemen. Two policemen interviewed confessed that they could not act against Adedibu and his supporters because of orders from the police leadership in the state (Human Rights Watch <xref ref-type="bibr" rid="ref009">2007</xref>: 55, 63).</p><p>It came as no surprise when the federal government halted Governor Ladoja from returning to office after the Court of Appeal decision. Though the Inspector-General of Police, Mr Sunday Ihendero, restored Ladoja's security, he did not ensure his return to office, describing the decision as a ‘toothless bulldog that cannot bite’ (<italic>ThisDay</italic> 15.11.2006). The government's reason was that the respondents in the case (the eighteen legislators) had filed an appeal to the Supreme Court together with an application for injunction to restrain the governor from returning to office, pending the determination of the appeal. In a press conference, the Attorney-General of the Federation, Mr Bayo Ojo, SAN, stated:<disp-quote><p>Although an appeal simpliciter does not operate as a stay of execution, where a party has exercised his right of appeal and also filed an application for stay of execution or injunction pending the determination of the appeal, the successful party ought to refrain from enforcing the judgement until the pending appeal has been determined. All parties in Oyo State must, therefore, await the determination by the Supreme Court of the appeal filed by the respondents. This is in order to prevent the destruction of the res, i.e. subject matter in contention between the parties (<italic>Vanguard</italic> 6.11.2006).</p></disp-quote></p><p>The Attorney-General acted as if he was granting the application for injunction. He simply ordered the parties to maintain the <italic>status quo</italic> pending the determination of the appeal and not merely the determination of the application. What he did is hardly supportable in law. While parties are expected to maintain the <italic>status quo</italic> when an application for stay or injunction is filed pending appeal, such a stay is up to the time the application, and not the main appeal, is determined by the court. An application of this nature when successful has a life span up to the determination of the appeal and that is why it is always made pending appeal. Courts have restated this principle in cases such as <italic>Okafor</italic> v. <italic>Nnaife</italic> (4 NWLR 1987: Pt. 64: 129) and <italic>Odugwu</italic> v. <italic>Odugwu</italic> (2 NWLR 1992: Pt. 543: 539). Even when the application filed by the legislators was subsequently struck out by the Court of Appeal,<xref ref-type="fn" rid="fn017"><sup>17</sup></xref> Ladoja was not restored to office (<italic>ThisDay</italic> 15.11.2006). It was only after the Supreme Court decision that the federal government directed the police to ensure his return to office.</p><p>It is hardly deniable that the federal government also had a hand in the impeachment in Plateau State. It was reported that EFCC had previously asked the House of Assembly under the leadership of Simon Lalong to impeach the governor but it refused to do so. Thus the eight ‘co-operating’ members were used to impeach him. Hours before the impeachment, it was clear that it was going to happen. Lorry-loads of anti-riot policemen had already been stationed in Jos, the state capital. The eight impeaching lawmakers had been under heavy security protection, kept away from public view, and were led to Jos before the impeachment by the EFCC. The acting chief judge appointed by Dariye, Justice Dakwang, was arrested to pave way for Justice Dakyen to swear in Mr Michael Botmang as the new governor (<italic>The Guardian</italic> 23.11.2006). After ‘considering’ the interim report, the eight legislators left the state and announced the impeachment in Abuja, the seat of the federal government. Arguably, Governor Dariye suffered this fate because he had severed ties with President Obasanjo when he claimed that he used his state's ecological funds to finance the president's campaign machinery through their common party, PDP, in the 2003 elections. The reaction of the presidency to the impeachment confirmed that the episode was stage-managed. Mallam Uba Sani, Special Assistant to the President on Public Affairs, stated:<disp-quote><p>Whatever the decision taken, as long as it is in the interest of the Plateau State people, so be it. The Presidency cannot stop the State Assembly from performing their Constitutional mandate … the Presidency has never intervened in the Dariye crisis. Here is a Governor who was accused of abuse of office, corruption and money laundering. Was President Obasanjo there in London when he was arrested over money laundering? Was the President there when he was detained and he subsequently jumped bail or was it the President who asked him to launder money? So if the plateau people feel that their Governor has committed impeachable offences and they remove him, so be it (<italic>Daily Trust</italic> 14.11.2006).</p></disp-quote>Governor Dariye too was not reinstated into office after the Court of Appeal judgement. It was only after the Supreme Court decision that he returned as governor shortly before the end of his second and final term of office.</p><p>The evidence of the federal government's complicity in Anambra State is overwhelming. Despite the clear unconstitutionality of Peter Obi's impeachment, the federal government stated that he remained impeached until a competent court of law reversed the impeachment (<italic>Vanguard</italic> 6.11.2006). The governor belonged to a minority opposition party, All Progressives Grand Alliance (APGA), and he came to power following a court decision nullifying the election of Chris Ngige as governor of the state. Ngige was ‘elected’ on the platform of the ruling party, PDP, and the House of Assembly was dominated by the PDP. It has been reported that the PDP leadership in the House transported eighteen legislators to a hotel in Asaba, Delta State, where they stayed for several weeks while party leaders were working for a smooth impeachment. The legislators had meetings in Asaba and Abuja with top PDP members including the Special Advisor on Domestic Affairs to President Obasanjo, Andy Uba. While at the hotel, they were given monies (said to have arrived from Abuja) and promised victory (i.e. return to the House) during the 2007 elections. They were also threatened that any member who did not support the impeachment would be targeted for prosecution by the EFCC. And it turned out that three PDP legislators who did not support the impeachment appeared in EFCC's list of politicians barred from contesting the 2007 elections for alleged evidence of corruption. They had to leave the PDP and were three of only four such barred politicians in the state (Human Rights Watch <xref ref-type="bibr" rid="ref009">2007</xref>: 71–3).</p><p>In Ekiti State, EFCC supported the impeachment and hailed it as good for the country. Its former chairman, Nuhu Ribadu, remarked: ‘We already have a case against him. We will not jump over and start running after him. We will wait and allow justice to take its course. We will do things properly and according to the rule of law. I can assure you that we are extremely happy that for the first time there is no hiding place for corrupt persons’ (<italic>ThisDay</italic> 17.10.2006). But the federal government made a U-turn when the Attorney-General of the Federation, Bayo Ojo, described the impeachment as unconstitutional. He stated that the procedure for appointing an acting chief judge for a state is as spelt out in section 271 of the constitution and ‘the State House of Assembly has no power to suspend the Chief Judge of a State or appoint a Chief Judge’. He promised that the federal government would take appropriate steps to maintain law and order in the state (<italic>ThisDay</italic> 17.10.2006). Three days later, a state of emergency was declared in the state, and Major-General Tunji Olurin was sent as Administrator.</p><p>The abuse of powers of impeachment in Nigeria and the complicity of the federal government reflect the lawlessness and impunity which characterise the country. The fact that these happened during a ‘democratic’ dispensation speaks volumes about the country's governmental structure and quality of leadership. Obasanjo's two terms in office were mired in increasing crises that saw not only breaches of the constitution but violence that threatened life, security and property in many parts of the country, a situation the Human Rights Watch (<xref ref-type="bibr" rid="ref009">2007</xref>: 1) aptly described as ‘criminal politics’. The organisation was therefore right to summarise the situation in Nigeria during the Obasanjo administration as ‘mired in crisis of governance’. Eight years after the end of military rule, the country's longest-ever stretch of uninterrupted civilian government, the conduct of many public officials and government institutions was so pervasively marked by violence and corruption as to resemble criminal activity more than democratic governance (<italic>ibid</italic>.).</p><p>It is important to note that it is only the federal executive which was complicit in the abuses discussed above. There is no evidence of the complicity of either the federal legislature or the federal judiciary. In fact, as the above decisions clearly show, the federal judiciary (i.e. the Court of Appeal and the Supreme Court) came in handy to remedy the situation created by the abuse at the state level. The involvement of the appellate courts was not only valid at that stage but desirable. Except in few instances where they exercise original jurisdiction,<xref ref-type="fn" rid="fn018"><sup>18</sup></xref> these courts mainly entertain appeals on matters which generally emanate from courts at the state level.<xref ref-type="fn" rid="fn019"><sup>19</sup></xref> So while the <italic>process</italic> of impeachment at the state level is entirely the business of the state legislature (with the input of the state judiciary at some stage) to the exclusion of the federal government, the judiciary at the federal level could be involved <italic>after</italic> the impeachment if appeals from decisions of the state (High) courts thereon are filed. It would be constitutionally wrong for any federal arm of government to interfere in the <italic>process</italic> of impeaching a governor or deputy governor. This is why impeachment at the state level is <italic>ultra vires</italic> the powers of the federal government.</p><p>But as the above cases show, the federal government did interfere in impeachment at the state level leading to breaches of constitutional provisions. Why was it so easy for it to cause such breaches in matters which, under the constitutional arrangement, are within the exclusive prerogative of state legislatures? What does the situation tell us? Does it merely stop at breach of constitutional provisions? Do the cases of abuse not reveal a much more fundamental problem? It seems obvious that there is a question of balance of power between the executive and the legislature and the federal government and the states. And the control of public funds is undoubtedly a key factor underlying this question.</p></sec></sec><sec id="sec006"><title>BALANCE OF POWER: CONTROL OF FUNDS</title><p>As far as public administration is concerned, the executive and the legislature at both federal and state levels are the most visible arms of government; the judiciary comes into play almost invariably to resolve disputes. The issue of funds is not only central to public administration, but determines power relations between the arms and tiers of government. The constitution underscores this fact, and therefore seeks not to leave absolute control of public funds in one arm. Section 5 (1) (a) & (b); (2) (a) & (b) imposes the duty to execute and maintain the constitution on the executive arm of government at both levels. This duty of course includes protection of life and property and improvement of the citizens' standard of living. It is by virtue of this duty that the constitution vests in the executive the powers to deal with and expend public resources. However, the legislature at both levels is also vested with powers to control public expenditure i.e. ‘power of the purse’. This power is the major way of checking executive power, impeachment being a last resort. It is exercised directly in two ways: authorisation of withdrawal of monies and investigative powers into administrative action.</p><p>The executive cannot have access to public funds for the discharge of its duties without authorisation by the legislature in the form of an Appropriation Act or Law as the case may be (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 80 (2), 120 (2)). Thus it cannot single-handedly prepare a list of expenditure and withdraw monies for implementation. If the monies authorised to be withdrawn for any purpose are insufficient, or a need arises for expenditure for a purpose for which no monies were authorised, the executive is required to lay a supplementary estimate before the legislature showing the sums required, and the heads of any such expenditures shall be included in a Supplementary Appropriation Bill to be enacted into Act or Law as the case may be (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 81 (4), 121 (4)).</p><p>It is also the legislature which establishes a contingencies fund and authorises the president or governor as the case may be to make advances therefrom if satisfied that there has arisen an urgent and unforeseen need for expenditure for which no other provision exists. Where any such advance is made, the executive shall present a Supplementary Estimate and a Supplementary Appropriation Bill to the legislature as soon as possible to replace the amount so advanced (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 83 (1, 2), 123 (1, 2)).</p><p>The constitution also empowers the federal and state legislatures respectively to direct, or cause to be directed, investigations into the activities of the executive for purposes which include exposing corruption, inefficiency or waste in the execution or administration of laws within their legislative competence and in the disbursement or administration of funds appropriated by them (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 88 (1, 2), 128 (1, 2)). Either House in the National Assembly (or both Houses jointly) may exercise this power. A legislature may exercise the powers itself or by delegation. The legislature is given certain procedural powers to facilitate this investigation. For instance, it can procure oral, written or circumstantial evidence; summon any person to give evidence or produce any document or thing in his possession; and issue a warrant to compel the attendance of a person who fails, refuses or neglects to attend after being summoned (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 89 (1), 129 (1)).</p><p>The above outlines how the legislature at both federal and state levels controls public funds. But a pertinent question is: what is the source of the money? I.e. how does the money get into the ‘purse’? Nigeria's main source of revenue comes from oil resources, ownership of which is vested exclusively in the federal government by virtue of section 44 of the constitution. Oil revenues and other important revenues such as import and company taxes are all collected by the federal government through the Federal Inland Revenue Service (FIRS) and paid into a special account called ‘the Federation Account’ (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 162 (1)). It is the federal government which maintains this account. The accrual of revenue to and distribution of monies from the account between the federal, state and local governments is monitored by the federal government through a federal executive body called the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC).<xref ref-type="fn" rid="fn020"><sup>20</sup></xref> Although the funds are distributed according to an Act of the National Assembly, the Assembly acts on proposals sent to it by the president on the advice of RMAFC (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 162 (3)).</p><p>The share of the states is also distributed among them according to an Act of the National Assembly (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 162 (4)), and the same goes for the allocation to states of the amount due to their local governments (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 162 (5)). The allocation to local governments from the Federation Account is paid into a State Joint Local Government Account maintained by each state. Each state is to distribute the monies in this account among its local governments on terms and in manner prescribed by the House of Assembly of the state (Constitution <xref ref-type="bibr" rid="ref004">1999</xref>: 162 (6) & (8)). The constitution has not created an allocation body similar to RMAFC at the state level. Both states and local governments have revenue-generating powers but 90% of their finances depends on federal revenue transfers (Suberu <xref ref-type="bibr" rid="ref017">2008</xref>).</p><p>By giving the federal executive the power to collect, maintain and distribute a large portion of the nation's revenue, the constitution clearly places it in a superior position over other arms and tiers of government. The Supreme Court has upheld this superiority in a number of cases. For instance, in <italic>Attorney-General (AG) of the Federation</italic> v. <italic>Attorney-General (AG) of Abia State & Ors</italic> (6 NWLR 2002: 542), the court declared the federal government as ‘trustee’ in respect of monies paid into the Federation Account for the benefit of states and local governments. Although it is accountable as trustee to the beneficiaries, the court held in <italic>AG Ogun & Ors</italic> v. <italic>AG Federation</italic> (Suberu <xref ref-type="bibr" rid="ref017">2008</xref>) that it cannot be asked to pay all federally collected revenues into the Federation Account, because it is required to pay some portions thereof to some states based on the derivation principle (the share of natural resource revenue exclusively for states where the resource is extracted).</p><p>When in the above case, <italic>AG Federation</italic> v. <italic>AG Abia State</italic>, the court declared unconstitutional the allocation of 7·5% from the Federation Account as special funds, President Obasanjo transferred the funds to the federal government. The thirty-six states of the federation challenged Obasanjo's action in <italic>AG Abia State & Ors</italic> v. <italic>AG Federation</italic> (<italic>ibid</italic>.), arguing that the funds ought to have been shared pro rata between the federal, state and local governments. The court decided in January 2003 that Obasanjo had powers to do so. By virtue of section 315 of the constitution, he could modify the existing law of revenue sharing in order to bring it into conformity with the constitution. In another case decided in 2005, <italic>AG Abia</italic> v. <italic>AG Federation & Ors</italic> (<italic>ibid</italic>.), Abia State government challenged the federal government for making deductions from its (Abia's) share of the Federation Account to service the debts the state owed. The court decided that the federal government as guarantor of external loans owed by states had the power to make such deductions because it had responsibility to see that repayments for the loans were made promptly. After an overview of the above and similar cases, a scholar concluded: ‘In essence, the Supreme Court's rulings … upheld the broad powers of the [federal government] to frame and manage the system of intergovernmental revenue transfers. This is consistent not only with the provisions of Nigeria's [federal] Constitution, but also with the imperatives of an oil-centric political economy in which the sub-federal tiers are overwhelmingly funded by centrally collected revenues’ (Suberu <xref ref-type="bibr" rid="ref017">2008</xref>).</p><p>Although the National Assembly has powers to make law on the distribution of monies in the Federation Account, such powers are lessened by the fact that this requires the input of the federal executive. The federal executive is thus in an advantageous position over both the legislature and the states to skew revenue sharing in its favour. At times it bulldozes its way. For instance, the Revenue Allocation (Federation Account etc.) Act 1981 was passed according to the wishes of the presidency and in violation of the Constitution due to the pressure of the Shehu Shagari government on the National Assembly (Agedah <xref ref-type="bibr" rid="ref001">1993</xref>: 19–22). It was a tug of war between twelve states and the federal government. The states challenged the revenue allocation formula in the Act as being unfavourable to them, yet the federal government got it passed as it was. It took the intervention of the Supreme Court at the instance of nine of the states in <italic>AG of Bendel State</italic> v. <italic>AG Federation</italic> (10 SC 1981: 1) to nullify the Act.</p><p>There is no better example of the overpowering nature of the federal government than during the eight-year rule of Olusegun Obasanjo. The presidency was said to have caused the removal of two Presidents of the Senate (Evans Enwerem and Dr Chuba Okadigbo), apparently because they did not want the National Assembly to be subservient to the federal executive. A similar attempt was made against Ghali Na'abba as Speaker of the House of Representatives, who dared to initiate impeachment proceedings against President Obasanjo for a number of alleged constitutional breaches in 2002. In a show of overwhelming power, the president described the move as ‘a joke taken too far’. The speaker survived the attempt but lost his bid to return to the House during the 2003 elections which followed. It was generally believed that the federal government, in connivance with the government of his state (Kano), ditched him even though they all belonged to the ruling party, PDP.</p><p>Thus it is the federal government which can ensure timely and constant allocation of funds to states and local governments. It can also delay or even withhold such allocations, even though this may be unconstitutional. Withholding of allocation was particularly a tactic of the Obasanjo government, which was known for refusal to disburse funds appropriated by the National Assembly, an issue which became ground for Obasanjo's attempted impeachment in 2002. The government also withheld allocations from the Federation Account that were due to local governments in states which had created new local government councils after 1999, on the pretext that this was unconstitutional. The PDP-controlled states amongst them – Ebonyi, Katsina, Nasarawa and Niger – had to scrap the new councils so as to continue receiving the allocations. Lagos State, controlled by Alliance for Democracy (AD), refused to budge. The Supreme Court ruled in <italic>AG of Lagos State</italic> v. <italic>AG of the Federation</italic> (12 NILR 2004: 101) that the federal government was wrong in withholding funds for the old local governments recognised by the constitution in Lagos. Despite the decision, Obasanjo did not release the funds. He released certain portions when Lagos downgraded the new councils to mere development areas and continued to withhold portions until after the expiry of his term in May 2007 (Suberu <xref ref-type="bibr" rid="ref017">2008</xref>). What worsened the situation in Lagos was that the state governor, Bola Tinubu, was perceived by the presidency as ‘recalcitrant’. He belonged to a minority opposition party, AD, which Obasanjo eliminated from its stronghold, the south-west, during the 2003 elections.</p><p>State executives arguably exert a greater influence over their state legislatures and local governments. In the <italic>AG Ogun</italic> case referred to above and another case, <italic>AG Cross River</italic> v. <italic>AG Federation & Anr</italic>, the Supreme Court reaffirmed the authority of states over the monies due to their local governments from the Federation Account. It ruled that such monies must be channelled through the respective states instead of a direct transfer from the federal government to the local governments. However, it has been a common practice for some of the states to withhold allocations to the local governments, depriving them of resources for developmental projects, even though by section 7 of the constitution these are supposed to be run by accountable elected representatives. The situation was so bad that the federal legislature had to enact the Monitoring of Revenue Allocation to Local Governments Act 2005, with a view to policing the distribution and utilisation of the funds to which local governments were entitled. Although the Supreme Court in <italic>AG of Abia State & 2 Others</italic> v. <italic>AG of the Federation & 33 Others</italic> (7 NILR 2006: 71) faulted the purpose of the Act and declared certain sections of it as against the federal structure, the move exposes how the states can overpower local governments, due to their control of funds.</p><p>It is no wonder then that the state legislatures do not initiate impeachment proceedings on their own. As stated above, all the governors impeached had one impeachable offence or another. Yet it was only at the instance of the federal government that the impeachments were carried out. This suggests that several state legislatures in the country have been silent despite the existence of ample evidence of impeachable offences against their governors and/or deputy governors. But state legislatures are forthcoming in cases where governors wanted their deputies to be impeached. For instance, deputy governors in Katsina (Tukur Jikamshi), Kebbi (Abdullahi Argungu), Lagos (Kofo Akerele-Bucknor), Cross River (John Okpa) and Jigawa (Shehu Kwatalo) States were all impeached during the Obasanjo tenure when they fell out with their respective governors. More recently, Governor Isa Yuguda of Bauchi State had his deputy, Garba Gadi, impeached by the House of Assembly. They apparently drifted apart when the deputy refused to defect to the PDP from the All Nigeria People's Party (ANPP) with the governor (<italic>Daily Trust</italic> 14.8.2009). Interestingly, there is hardly any evidence of the involvement of the federal government in any of these impeachments.</p><p>It can therefore be argued that though the constitution has in theory given ‘the power of the purse’ to the legislature at both federal and state levels, the real power in practice lies with the executive. With the executive presidential system enabled by section 5 (1) of the constitution, almost everything at the federal level revolves around the presidency, thereby placing it in a position to influence not only the federal legislature but also the states as a whole. Since revenues are collected and monitored by federal agencies (FIRS and RMAFC respectively), it may be speculated that the first stop for the revenues is the presidency, and that not all the revenues ultimately get into the Federation Account. The governor enjoys a similar executive power at the state level. The breach of powers of impeachment as we saw in the instances above is therefore a symptom of a bigger problem which is the overwhelming power of the executive over the legislature and more particularly the dominance of the federal government over the states.</p><p>The powers of impeachment are no doubt relevant for the purpose of ‘trying’ immune executive officers. The law must not wait until they finish their terms of office before it applies to them. In this sense of not being above the law, they are in principle equal to other citizens. This is particularly important in the context of Nigeria where power is open to abuse. Most of the governors provided typical circumstances where the powers of impeachment could be exercised. However, the state legislatures remained passive. The dominance of the executive over the legislature may explain this passivity. When impeachments did take place, they were mostly at the instance of the federal government through the EFCC. The federal government merely capitalised on the ‘misconduct’ of the governors to get rid of opponents and non-loyalists among them. It was in this process that the constitutional provisions on impeachment suffered unprecedented breaches.</p><p>Indeed the EFCC had the powers to investigate the governors on issues of corruption even while they were in office (see Economic & Financial Crimes Commission Act 2004: section 6). The evidence it gathered could have been acted upon by the State Houses of Assembly at their own instance. Because of the immunity the governors enjoyed, the impeachment process was the only option to ‘try’ them. The process was however <italic>ultra vires</italic> the powers of the EFCC or any other federal agency. The complicity of the federal government became more obvious after the court decisions which nullified the impeachments. The then Chief Justice of the Federation, Modibbo Alfa Belgore, had to complain about how the presidency picked and chose which rulings of the court were convenient for it to obey (<italic>The Guardian</italic> 8.12.2006).</p><p>The impeachments are signs that the objective of separation of powers is far from being achieved in Nigeria. We have seen the executive arm particularly at the federal level abusing its powers and carrying its authority ‘as far as it will go’, a situation dreaded by Montesquieu (<xref ref-type="bibr" rid="ref011">1949</xref>: 150). The legislature at both the federal and state levels lies at the feet of the executive. At the same time, the federal government exerted enormous influence over the states, such that it could cause changes as local and fundamental as impeachments of governors. This means that the aspiration of the constitution that governance should be by law has not been fully realised in Nigeria. Instead, it was rule according to the whims and caprices of men which reigned.</p><p>This issue brings to the fore the tension between politics and law. While it is law which enables constitution of authority in democratic dispensations (which Nigeria claims to be) and provides guidelines for the exercise of such authority, it (the law) becomes virtually the first victim of the constituted authority. People in governments always have political ends in the pursuit of which not even the constituting law is spared. The abuse of constitutional powers of impeachment is a good instance where law suffers from politics. Thus in the world of politics, constitutionalism has limits (see Christodoulidis & Tierney <xref ref-type="bibr" rid="ref003">2008</xref>; Griffith <xref ref-type="bibr" rid="ref007">1979</xref>; Loughlin <xref ref-type="bibr" rid="ref010">2003</xref>).</p><p>It may not be possible to clean politics off the constitution. The constitution as public law has in fact been described as ‘political jurisprudence’ and ‘one of the most effective philosophies of state building ever contrived’, having been founded on a liberal conception of sovereignty (Loughlin <xref ref-type="bibr" rid="ref010">2003</xref>: 69); a ‘statement of a power relationship and nothing more … a political act about which it is indeed possible to hold opinions’ (Griffith <xref ref-type="bibr" rid="ref007">1979</xref>: 19). The exercise of constitutional power therefore invariably has political undertones even in Western countries where the rule of law is seen as firmly rooted in the polity. The attempt to impeach Bill Clinton as a Democrat President of the United States by the Republican-dominated Congress over the Monica Lewinsky affair is a case in point. But that is the more reason why the problem of politically inspired breaches of constitutional powers should be taken more seriously. Since the breaches in Nigeria are linked to power imbalance between the executive and the legislature, particularly the overpowering nature of the federal executive, limiting executive authority and strengthening legislative authority so as to maintain a balance between the two is a two-pronged measure which would offer an attractive remedy. It can minimise, if not eliminate, the problem. But how could this laudable objective be achieved?</p><p>It is tempting to resort to law again for succour, not least because it is the source of both executive and legislative authority. Thus I would suggest more fiscal control in favour of the legislature. For instance, in addition to the powers to authorise executive expenditure and investigate administrative action, it would be good to involve the legislature in the maintenance of the Federation Account or State Joint Local Government Account as the case may be, as well as in the distribution of monies standing to the credit of these accounts to the various beneficiaries. Thus RMAFC should cease to be purely an executive body. The current situation where the federal legislature's role is limited to the Senate's confirmation of the president's appointment of its chairman and members is grossly inadequate. At the state level, the constitution should create a similar body to be run jointly by the executive and the legislature. It is not abnormal to do this because there are bodies created by the constitution whose membership cuts across the executive and the judiciary, i.e. the Federal and State Judicial Service Commissions respectively (see Constitution 1999: Third Schedule, I E, 12 & II C, 5). However, the federal legislature should be concerned with the federal level only, and the state legislatures with the state level only. This is in order not to offend the federal structure, something which the Supreme Court frowned upon in <italic>AG Abia State</italic> v. <italic>AG Federation</italic> (7 NILR 2006: 71). This done, both the federal presidency and the state executive will cease to have the almost absolute control over public funds. The legislatures will then truly have ‘power of the purse’ with which to check the executive, leaving the powers of impeachment to the most egregious situations.</p><p>Incorporating the above measures in the constitution should give no room for complacency. The judiciary should not only be there to declare constitutional breaches as such and nullify them at the instance of aggrieved parties. The present jurisprudence, which leaves Nigerian courts as merely reactive institutions, should be replaced with a more robust and proactive system where at least the Supreme Court could take action <italic>suo motu</italic> (i.e. on its own) to restrain or remedy constitutional breaches by any arm of government. The possibility of imposing sanctions for wanton and reckless breach of the constitution such as witnessed during the impeachments should also be explored. Impunity breeds lawlessness. There would be higher chances of obedience to law when infraction leads to unpleasant consequences. This may be a tall order, especially as governments which are wont to abuse power tend to politicise and incapacitate the judiciary. Yet it is better to have the framework than not to have it at all.</p><p>Lest I risk legal fetishism, the above legal prescriptions are inadequate in themselves to stem the tide of abuse of powers. In fact, in the face of political pressures, the emancipatory powers of law are anything but enormous. Griffith (<xref ref-type="bibr" rid="ref007">1979</xref>)
does not even believe that law can remedy government authoritarianism:<disp-quote><p>For centuries political philosophers have sought that society in which government is by laws and not by men. It is an unattainable ideal. Written constitutions do not achieve it. Nor do Bills of Right or any other devices. They merely pass political decisions out of the hands of politicians and into the hands of judges or other persons. To require a supreme court to make certain kinds of political decisions does not make those decisions any less political.</p></disp-quote>What then is the way out? Griffith opines that ‘the remedies are political. It is not by attempting to restrict the legal powers of government that we shall defeat authoritarianism … Only political control, politically exercised, can supply the remedy.’ He seems to suggest that the only remedy lies in the ill sought to be dealt with, i.e. politics. While I accept the remedial value of politics, I do not think the remedies are purely political. I would suggest employing legal measures for the purpose of creating a more enabling environment for dealing with the situation. It follows therefore that the legislature must use its constitutional powers to negotiate politically with the executive. It is the same process that the states should adopt in negotiating issues with the federal government. The oil-rich Niger Delta states seem to appreciate the potency of the political weapon. They have used it first to get the derivation principle institutionalised at not less than 13%.<xref ref-type="fn" rid="fn021"><sup>21</sup></xref> This principle applied to onshore oil only. They then sought (before the Supreme Court in <italic>AG Federation</italic> v. <italic>AG Abia State</italic>, 6 NWLR 2002: 542) to have it applied to offshore oil as well. The Supreme Court decided against them. They then used political means to get the decision reversed and they partially succeeded with the enactment of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act 2004 at the instance of the Obasanjo presidency.</p><p>The task of fighting abuse of powers is not a governmental affair only. Non-governmental organisations (NGOs), labour unions, professional organisations, student bodies and influential individuals have roles to play as well. With concerted efforts, they can persuade governments to take decisions of public interest and can also restrain onslaught against constitutional provisions. Resistance from various quarters helped frustrate Obasanjo's bid to secure term elongation through a contrived constitutional amendment in 2006. Suffice it to say, the political measure in turn requires freedom of expression, freedom of the press, open government through freedom of information, etc. Law helps in this regard by guaranteeing these freedoms.<xref ref-type="fn" rid="fn022"><sup>22</sup></xref> In sum, it means there is a symbiotic relationship between law and politics. It is a mixture of the two which would check politically inspired breaches of the constitution such as witnessed in the impeachments during the Obasanjo regime.</p></sec></body><back><fn-group><title>NOTES</title><fn id="fn001" symbol="1."><label>1.</label><p>Montesquieu's statement is similar to Lord Acton's often quoted statement that ‘power corrupts and absolute power corrupts absolutely’. See Payne (<xref ref-type="bibr" rid="ref016">1975</xref>: 179).</p></fn><fn id="fn002" symbol="2."><label>2.</label><p>Other checks on executive power in Nigeria include the need for the legislature to authorise the executive to withdraw money from the Consolidated Revenue Fund (sections 80 (2) and 120 (2)), confirm appointments and removals of public officers such as ministers and Auditor-General (sections 85 (2); 125 (2)), and investigate administrative action with a view for instance to exposing corruption (sections 88 (1) & (2) and 128 (1) & (2)).</p></fn><fn id="fn003" symbol="3."><label>3.</label><p>The National Assembly is a bicameral legislature comprising the Senate and House of Representatives.</p></fn><fn id="fn004" symbol="4."><label>4.</label><p>State Houses of Assembly are unicameral legislatures.</p></fn><fn id="fn005" symbol="5."><label>5.</label><p>This would be a clear violation of section 80 (2) of the constitution in the case of the president, and section 120 (2) in the case of a governor. Even in emergency cases, authorisation is required as condition subsequent for validity of the withdrawal.</p></fn><fn id="fn006" symbol="6."><label>6.</label><p>The Malawi constitution covers serious breaches of the constitution or written laws that either occur or come to light during the term of office. The inclusion of breach of written laws raises some difficulties, e.g. of scope. See Hatchard <xref ref-type="bibr" rid="ref008">2000</xref>.</p></fn><fn id="fn007" symbol="7."><label>7.</label><p>See for instance <italic>Alhaji Balarabe Musa</italic> v. <italic>Speaker, Kaduna State House of Assembly</italic> (1982) 3 NCLR 450, <italic>Alhaji Balarabe Musa</italic> v. <italic>Auta Hamza</italic> (1982) 3 NCLR 299, and the recent High Court case of <italic>Hon. Abraham Adeolu Adeleke (Speaker) & Ors</italic> v. <italic>Oyo State House of Assembly & Ors</italic> (unreported).</p></fn><fn id="fn008" symbol="8."><label>8.</label><p>The appeal was numbered CA/1/2/2006 and presided over by James Ogebe JCA.</p></fn><fn id="fn009" symbol="9."><label>9.</label><p>He became governor on the platform of a minority left-wing party, People's Redemption Party (PRP), and the House of Assembly's majority was National Party of Nigeria (NPN), which captured the federal government and most of the states. So Musa was believed to have been victimised for allegations which did not warrant impeachment. See Nwabueze <xref ref-type="bibr" rid="ref015">1982</xref>: 144.</p></fn><fn id="fn010" symbol="10."><label>10.</label><p>The constitution frowns on double jeopardy in criminal proceedings under section 36 (9). The same logic could be applied in investigating the governor, not least because the entire impeachment process contemplates fair hearing as obtained in other proceedings.</p></fn><fn id="fn011" symbol="11."><label>11.</label><p>Appeals to the Supreme Court normally take years to be disposed of. But political cases are often given priority. The Ladoja case received a more accelerated hearing owing to the violence associated with it.</p></fn><fn id="fn012" symbol="12."><label>12.</label><p>In Appeal no. CA/J/302/2006. The judgement was delivered in Jos on 8 March 2007. Even before the impeachment, the Nigerian Bar Association in a letter to the acting chief judge had opined that the process initiated by the eight members was unconstitutional and urged the chief judge to uphold the rule of law (<italic>ThisDay</italic> 23.10.2006).</p></fn><fn id="fn013" symbol="13."><label>13.</label><p>He was arraigned before a court in London and was granted bail. He jumped the bail and returned to Nigeria (<italic>The Guardian</italic> 3.9.2004).</p></fn><fn id="fn014" symbol="14."><label>14.</label><p>There was jubilation by youths on the streets of Ado-Ekiti (the state capital) after the impeachment. Elders, some PDP members, the former deputy governor (who was impeached at the instance of Fayose because he was allegedly against the poultry project) and famous Lagos lawyers, Gani Fawehinmi SAN and Femi Falana all welcomed it (<italic>ThisDay</italic> 17.10.2006).</p></fn><fn id="fn015" symbol="15."><label>15.</label><p>It was reported that the incident led to violence and loss of lives in the state. After the departure of Obasanjo as president, Adedibu was arraigned before a Chief Magistrate court in Abuja on charges that he was likely to incite disturbance of public peace and the conduct of his thugs was likely to cause a breach of public peace in Abuja, Ibadan and other places (<italic>ThisDay</italic> 16.11.2007).</p></fn><fn id="fn016" symbol="16."><label>16.</label><p>The police is a federal force in Nigeria. States are not allowed to have their own police. See Constitution (1999: 214, 215, 216).</p></fn><fn id="fn017" symbol="17."><label>17.</label><p>It was struck out with the mutual consent of the parties as an abuse of court process since the appeal was already before the Supreme Court.</p></fn><fn id="fn018" symbol="18."><label>18.</label><p>By virtue of section 239 (1) of the constitution, the Court of Appeal for instance exercises exclusive original jurisdiction (i.e. it is the court of first instance) on petitions challenging the election of a person into the office of the president or vice-president. Section 232 (1) of the constitution also confers on the Supreme Court exclusive original jurisdiction on disputes between a state or states and the federation or between states.</p></fn><fn id="fn019" symbol="19."><label>19.</label><p>They also hear appeals on matters which emanated from federal lower courts, i.e. the Federal High Courts and High Courts of the Federal Capital Territory, Abuja, none of which has jurisdiction over impeachment of a governor or deputy governor.</p></fn><fn id="fn020" symbol="20."><label>20.</label><p>This Commission is established under Constitution 1999: 153 (1) (n), and, according to section 154 (1), its chairman and members are appointed by the president subject only to confirmation by the Senate.</p></fn><fn id="fn021" symbol="21."><label>21.</label><p>This is provided under section 162 (2) of the constitution.</p></fn><fn id="fn022" symbol="22."><label>22.</label><p>Freedom of expression and freedom of the press are provided for under section 39 (1) & (2) of the Constitution as fundamental human rights. A Freedom of Information Bill has been in the pipeline since the Obasanjo days.</p></fn></fn-group><ref-list><title>REFERENCES</title><ref><citation id="ref001" citation-type="book"><name><surname>Agedah</surname><given-names>D.</given-names></name>, ed. <year>1993</year>. <source>Corruption and the Stability of the Third Republic</source>. <publisher-loc>Lagos</publisher-loc>: <publisher-name>Perception Communications</publisher-name>.</citation></ref><ref><citation id="ref002" citation-type="other"><collab>All Nigeria Law Reports (All NLR)</collab>. Vol. <sc>i</sc>. <year>1962</year>. Federal Ministry of Justice. 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Instead of being invoked in appropriate circumstances, however, this article shows that these powers have been abused. It examines cases of impeachment at the state level during the Obasanjo administration and shows how constitutional provisions were flagrantly breached. It provides evidence that the federal government was complicit in such cases, even though under the federal structure by which Nigeria operates, impeachment at the state level is exclusively a state business. It argues that the abuses are a symptom of imbalance of power between the executive and the legislature as well as evidence of the limits of constitutionalism in the face of politics.</abstract><note>I am grateful to my supervisor, Professor Shaheen Ali, and my PhD colleagues at the University of Warwick Law School, particularly Chikosa Silungwe and Nathan Tuimising, for their comments on an early draft of this paper. I also appreciate the comments of the participants at the Socio-Legal Studies Association (SLSA) Conference held in April 2009 at De Montfort University, Leicester, UK, where I presented a version of the paper. Finally, I am grateful to the anonymous reviewers of the paper for their insightful comments.</note><relatedItem type="host"><titleInfo><title>The Journal of Modern African Studies</title></titleInfo><titleInfo type="abbreviated"><title>J. Mod. Afr. Stud.</title></titleInfo><genre type="journal" authority="ISTEX" authorityURI="https://publication-type.data.istex.fr" valueURI="https://publication-type.data.istex.fr/ark:/67375/JMC-0GLKJH51-B">journal</genre><identifier type="ISSN">0022-278X</identifier><identifier type="eISSN">1469-7777</identifier><identifier type="PublisherID">MOA</identifier><part><date>2010</date><detail type="volume"><caption>vol.</caption><number>48</number></detail><detail type="issue"><caption>no.</caption><number>2</number></detail><extent unit="pages"><start>311</start><end>338</end><total>28</total></extent></part></relatedItem><identifier type="istex">899A3C98ED3E064047572BBAC645EB119FE8CCCE</identifier><identifier type="ark">ark:/67375/6GQ-N0FM7D2Q-S</identifier><identifier type="DOI">10.1017/S0022278X10000212</identifier><identifier type="PII">S0022278X10000212</identifier><identifier type="ArticleID">00021</identifier><accessCondition type="use and reproduction" contentType="copyright">Copyright © Cambridge University Press 2010</accessCondition><recordInfo><recordContentSource authority="ISTEX" authorityURI="https://loaded-corpus.data.istex.fr" valueURI="https://loaded-corpus.data.istex.fr/ark:/67375/XBH-G3RCRD03-V">cambridge</recordContentSource><recordOrigin>Copyright © Cambridge University Press 2010</recordOrigin></recordInfo></mods><json:item><extension>json</extension><original>false</original><mimetype>application/json</mimetype><uri>https://api.istex.fr/document/899A3C98ED3E064047572BBAC645EB119FE8CCCE/metadata/json</uri></json:item></metadata><serie></serie></istex></record>Pour manipuler ce document sous Unix (Dilib)
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