Fubara’s removal: Judiciary holds the key, by Tonnie Iredia

Nigeria changed from the parliamentary system of government to the presidential system in 1979. Since then, no president has been removed from office using the impeachment proceedings approved by the constitution. Seven governors have however been impeached but none has stood the test of time. Six of the affected governors had their impeachments nullified while that of the seventh and former governor Balarabe Musa of Kaduna state was pooh-poohed in the court of public opinion. The implication of this is that although Nigerian presidents and governors can be impeached, the process of doing so is tedious and beyond the control of only the legislature.

The current attempt by the Rivers State House of Assembly (RSHA) to impeach Governor Sim Fubara must therefore be handled with utmost care and strict adherence not only to the letter but also to the spirit of the Nigerian constitution. To start with, it must not be rushed. An allowance of 3 months is provided for the process making a precipitous speed of execution unessential. It is therefore important for the legislators to realize that none of the provisions must be jumped or combined under the exuberance of wanting to do in the enemy, now that there appears to be room for it.

Incidentally, there could be danger in delay. Where all the principal actors in the impeachment saga are said to belong to the same political party, it is not unlikely that party chieftains and other interest groups may be able to bring pressure to bear on the legislators to drop the charges. In September 2002 when the Ghali Umar Na’Abba – led House of Representatives attempted to impeach the then president Olusegun Obasanjo, immense pressure was brought on the Speaker by various stakeholders to drop the allegations. The Speaker was to later announce that “the house had decided to pardon President Obasanjo in the national interest.” Who gave him and the House power to forgive any crime?

One of the difficulties that the RSHA legislators may have would be evidence that the notice of impeachment was actually served on Fubara and also his deputy since both persons were similarly accused. Failure to serve them may be critical because in February 2020, a Lokoja High Court rejected the purported removal of Simon Achuba as Kogi’s deputy governor on the grounds that “failure to serve the Notice of hearing and charges on him was a breach on his right to fair hearing.”  There is doubt if it would be easy during this period of tension for political warriors to get as close as 200metres to the governor and or his deputy.

A hard look at the events leading to the decision of the legislature to serve a notice of impeachment on the executive points to political disagreements. It is probably only those on the side of the legislators that would see the issue at stake as a breach of the constitution which the latter would want all to believe. If so, it may not be too easy to draft charges that would be a true reflection of constitutional breaches. As a result, the legislators may unwittingly work to the answer thereby inadvertently creating loopholes for the defence. This is what has made impeachment proceedings unpopular in Nigeria with many charges bordering on frivolity.

From 2012, Nigeria has had several cases of impeachment of deputy governors based on bogus charges. There was the case of a deputy governor who was impeached in his absence meaning no charges were served on him. Again, one of the members of the investigating panel had earlier been allegedly indicted by a judicial inquiry while the Chief Judge that constituted the investigating panel had himself remained in office illegally.  In 2013, Jude Agbaso, the then deputy governor of Imo state was impeached on fake charges of corruption. The next year, Sunday Onyebuchi deputy governor of Enugu state was impeached on the accusation of “gross misconduct” of running a poultry farm in his compound. RSHA legislators would hopefully avoid these types of irritating scandals.

Already, analysts are divided on the real intentions of the principal participants and are asking several questions. Many are prepared to roundly condemn the refusal of the governor to appoint commissioners which is a breach. But if a budget was approved for 2025 during emergency rule, can the governor not spend money not exceeding the 2025 approvals within the first quarter of a new year? Did the Assembly expect the deputy governor to supersede the governor and present a budget without the approval of her principal? If so, what is the offence of the deputy governor or is the impeachment designed to make the speaker acting governor?

It is hoped that the due process of law would be strictly followed in the coming days. One landmine is the belief that based on the separation of powers, the courts cannot interfere in activities of the legislature. This column has drawn attention more than once to this erroneous belief. Perhaps we need to restate it here that the fact that the legislature is an independent arm of government that can make its own rules does not obviate the relevant provision of Section 4(8) of our constitution which states clearly that, “the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law.”

Consequently, the impeachment of a governor or his deputy by a legislative chamber cannot proceed if the judiciary has had cause to halt it – a good example being the case of Mahdi Gusau former deputy governor of Zamfara state. Gusau’s impeachment was nullified because an earlier order issued by a Federal High Court sitting in Abuja on February 14, 2022 warning against the impeachment had been ignored. Similarly, although an Owerri High Court had in July 2014 specifically halted the process of impeaching Eze Madumere, the then deputy governor of Imo state, the House of Assembly disobeyed the court order and purportedly impeached the deputy governor.

What constitutes gross misconduct? Whereas the Nigerian constitution gives our lawmakers the discretion to determine what constitutes gross misconduct, such discretion must be rationally exercised. As history has shown, to oust the jurisdiction of courts in matters of public policy is a subject our judiciary has always guarded jealously. It is therefore critical that allegations of gross misconduct against a governor must appear so to the average citizen. Only recently, Justice Omotosho of the Federal High Court Abuja held that the allegation on which the Edo State House of Assembly based the impeachment proceedings concerning deputy governor Philip Shaibu “was untenable in law and did not constitute gross misconduct.” 

What the immediate point exactly implies is that as far as Fubara’s removal is concerned, the judiciary holds the key. There are strong and weak judges in Nigeria and if those to determine the fate of Fubara are strong and apolitical, the situation will be tedious. If on the other hand, they are feeble, the legislators can easily have their way. It is however premature to conclude on whether the judiciary would be for or against Fubara. What is certain is that the legislators cannot begin and conclude impeachment by themselves alone. They need the judiciary to establish a panel to investigate the allegations which will determine whether or not the case can continue. In other words, the disposition of the chief judge of the state is crucial.

In July 2020, when Ondo state legislators sought to impeach deputy governor Agboola Ajayi, the then State Chief Judge, Oluwatoyin Akeredolu stood firmly till the end. She faulted the process and declined to set up an investigation panel. That was not all, she also gave due recognition to the existence of a restraining court order on the subject. It is not only chief judges that can be firm, there are other judges in history who have exhibited similar courage. In 2018 for instance, Justice Ben Iheka of Imo state displayed similar courage when he restrained the panel set up by his Chief Judge from taking further action in the illegal impeachment process of former deputy governor Eze Madumere.

The point to be made therefore is that the impeachment of a governor is too grave to be used to settle political differences.  Indeed, where the legislature and the executive that are engaged in an impeachment proceeding belong to the same political party, the party concerned is without knowing at the beginning of its end.  It is as if the All-Progressives Congress APC is celebrating the troubles in other political parties while it is itself developing into an atomistic entity.

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