by Mobolaji E. Aluko, PhD

alukome@gmail.com

Burtonsville, MD, US

October 18, 2006

Dear Compatriots:

The impeachment proceedings of any Governor and Deputy Governor are subject to Section 188 of Nigeria's 1999 Constitution.  Although the cases of the Ekiti State personalities Fayose and Olujimi are immediately of interest here, the discussion will be cast in a more general light as much as possible.

Assuming that an impeachment notice has been served on the accused and properly responded to, it is proper here to continue at the appointment of the Panel of seven persons by the Chief Judge.  Their choice is ENTIRELY at the discretion of the Chief Judge, which persons.."... in his opinion are of unquestionable integrity"..even if we THE PEOPLE question their integrity.

But what does "integrity" of a mother mean if perchance the Chief Judge chooses her to be on a panel to judge a case of her son who is the governor?  Or the "integrity" of a close friend of the governor?  Must "integrity" then not be in context?  Does "integrity" here mean that the Chief Judge has convinced himself that the mother has SUCH integrity that it trumps family relationship?

I think not, and no reasonable person can assume that the CJ has an infinite lattitude to pack the Panel.

Just as a jury takes the place of a judge and should be adjudged to be a mix of reasonably unbiased persons with integrity RELATIVE TO THE CASE AT  HAND, so must this Panel, even where the discretion of the CJ is not questioned.  The CJ cannot "pack" a court with people of integrity! :-)

However, all is not lost at this time: the State Assembly (SASS) still has a stalling ace, since Section 188 (7)(a) states that the " Panel appointed under this section shall have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly."  Thus without prescription, there are no powers:  the panel is an empty suit, no pun intended.

But can the SASS stall for ever?  That would leave the accused in place for ever.  Can it use its powers to request the resumes or curriculum vitae (CV) of the panelists, and the basis of their choice,  and then ask for a variation of the composition if bias is proved?  The CJ may or may not accede.  If bias is proved, should the SASS not, in the interim, invoke Section 292 (a)(ii) and (b) report the Chief Judge to the National Judicial Council for lack of integrity in composing a biased panel and then cause the Governor to dismiss the Chief Judge and appoint another?

Yes, the Governor, who through Section 292(a)(ii) can be compelled to so act "on an address supported by two-thirds majority of the House of Assembly of the State,  Praying that [the Chief Judge] be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct ;"
 

All of this might take time, and again leave the accused governor  (and deputy) in place, who would be strange judges in their own cases.  

My advice is that despite the claim of bias, the State Assembly accusers in the case of Ekiti State, should proceed with the case before the panel, and may surprise the Panel by such overwhelming evidence that it would have no choice but to return a verdict against their own biased interest, or else cause them to return a howler verdict. If the proceedings were to continue, however,  the Panel might want to take all of three months, since Section 188(7)(b) states that : " the Panel, shall,... within three months of its appointment, report its findings to the House of Assembly."  Thus, to prevent such an eventuality, it is crucial that the SASS's prescription MUST include a time limit to the reporting back - say one week or two - which would still be "within three months", which was never meant to mean "at the end of three months." 

Finally, suppose, in a worst-case scenario, the Panel DARE to COMPLETELY exonerate the accused governor and/or Deputy Governor?  If that were the case, they would state that following Section 188(8) " the allegation has not been proved, [and hence] no further proceedings shall be taken in respect of the matter. "   Thus a new panel would not be able to be formed on the "matter."    It would appear that in that case the hands of the SASS would be completely tied.

That could cause a major problem [say in Ekiti State] if followed through. 

But does that determination by the administrative panel really matter?  Is that the end of the story?  Absolutely not, since the State Assembly has the FINAL SAY, and is protected by Section 188(10) which states that " No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court. "

This is a monster ouster clause reminiscent of military rule.

So from all the above, we see that our 1999 Constitution is somewhat a confused amalgam of prescriptions, and that there is a lot of murkiness in the future of these particular proceedings.

However, all hope is not lost in Ekiti State:  the fat person has not yet sung, but we must closely watch the parting of the curtains for her arrival on stage.

Best wishes all.

APPENDIX

 Sections 188 and 192 of Nigeria's 1999 Constitution

Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly.

stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified.