The concept and procedures of impeachment. A comparison between Nigeria and the United States of America

Thèse de Bachelor , 2019 , 103 Pages , Note: 63/100

Politique - Généralités sur la politique internationale

The ultimate aim of this paper is to critically analyse comparatively the concept of impeachment and its procedures in Nigeria and the United States of America. The essence of this work can only be achieved through a comparative approach. The aim of the comparison is fully encapsulated in the opinion of some writers. The objectives of this long essay are: To understand the procedure of impeachment and the attitude of the judiciary towards impeachment in Nigeria and in the United States of America. To bring to bear the inadequacies in the procedure of impeachment in both Nigeria and the United States of America. To compare both countries with the aim of improving their individual procedure of impeachment. Proffer solutions to the problems discovered in the course of the research.

An executive officer leaves office not only at the expiration of his tenure, or his death, or incapacitation as it is the ideal, but also upon impeachment. Impeachment is another potent and unusual way of removing an executive officer. However, impeachment which is supposed to be an instrument to check the excesses of executive officers in the hands of the legislature has become a tool in the hands of political parties and politicians to remove from office an executive officer who is from another political party or who is not a "loyalist". This practice is more peculiar to Nigeria where impeachment has become a tool for settling political scores.

This therefore amounts to an abuse of the power of impeachment conferred on the legislature. This underscores the essence of this research because a comparative analysis of the procedure for impeachment in Nigeria and the United States of America will expose the lapses in both legal systems and proffer solutions to such lapses. These lapses are the problem this research work intends to resolve. This research work intends to answer the following questions: What does impeachment entail in Nigeria and the United States of America? Who can be impeached in Nigeria and the United States of America? What is the procedure for impeachment in Nigeria and the United States of America? What are the differences in the procedure for impeachment in Nigeria and the United States of America? How can this procedure be breached? Should there be differences, will that amount to a gap? And which is the standard for impeachment to establish the basis for amending the other?

Contents

GENERAL INTRODUCTION
1.1 BACKGROUND OF THE STUDY
1.2 STATEMENT OF THE PROBLEM
1.3 AIM AND OBJECTIVES OF THE STUDY
1.4 SCOPE AND LIMITATION OF THE STUDY
1.5 SIGNIFICANCE OF THE STUDY
1.6 RESEARCH METHODOLOGY
1.7 LITERATURE REVIEW
1.8 SYNOPSIS OF CHAPTERS

CONCEPTUAL FOUNDATION/HISTORICAL DEVELOPMENT
2.1 HISTORY OF IMPEACHMENT
2.2 CONCEPT OF IMPEACHMENT IN THE UNITED STATES OF AMERICA
2.3 CONCEPT OF REMOVAL FROM OFFICE IN NIGERIA
2.4 DEFINITION OF IMPEACHMENT

LEGAL FRAMEWORK FOR IMPEACHMENT IN NIGERIA AND THE UNITED STATES OF AMERICA
3.1 IMPEACHMENT IN NIGERIA
3.2 IMPEACHMENT IN THE UNITED STATES OF AMERICA
3.3. GROUNDS FOR IMPEACHMENT IN NIGERIA
3.4. GROUNDS FOR IMPEACHMENT IN THE UNITED STATES OF AMERICA
3.5. PROCEDURE FOR IMPEACHMENT IN NIGERIA
3.6. PROCEDURE FOR IMPEACHMENT IN THE UNITED STATES OF AMERICA

COMPARATIVE ANALYSIS OF IMPEACHMENT IN NIGERIA AND THE UNITED STATES OF AMERICA
4.1. THE ATTITUDE OF NIGERIAN COURTS TOWARDS IMPEACHMENTS
4.2. THE ATTITUDE OF COURTS IN THE UNITED STATES` OF AMERICA TOWARDS IMPEACHMENT
4.3. ANALYSIS OF THE PROCEDURE FOR IMPEACHMENT IN NIGERIA AND THE UNITED STATES OF AMERICA

CONCLUSION
5.1 SUMMARY OF FINDINGS
5.2 OBSERVATION
5.3 SUGGESTION AND RECOMMENDATIONS
5.4 CONTRIBUTION TO KNOWLEDGE
5.5 CONCLUSION

BIBLIOGRAPHY

CHAPTER ONE

GENERAL INTRODUCTION

1.1 BACKGROUND OF THE STUDY

The presidential system of government is simply a democratic (government of the people, for the people and by the people) and republican (a state where supreme power is held by the people through their elected representatives which has an elected or nominated president rather than a monarch) system of government where a head of government leads an executive branch that is separate from the legislative branch and the judicial branch. The presidential system is deeply rooted in the foundations of the doctrine of separation of power propounded by French philosopher Baron de Montesquieu¹, which posits that to ensure that each arm of government – executive, legislature and judiciary; performs a distinctive function in order to avoid consolidation of the powers of governance into one hand which is capable of promoting tyranny and accentuate human rights violations. Fundamentally, Montesquieu advocated that the legislature must make the law, the executive to execute the law made by legislature and the judiciary to interpret the laws in the case of ambiguity or where the law is sought to be interpreted. This will in a great way reduce the abuse of power.

However, due to the interdependent nature of the three arms of government, it became important for any government to align itself with the doctrine of checks and balances as formulated by A.V. Dicey. The only remedy to abuse of power is the effective employment of the principle of checks and balances within the three arms of government. As it is found in the presidential system of government, when officials of government are elected or appointed into their respective offices and they serve the will of the electorates for the term they have been elected or for the term allowed by the law in place. Through the doctrine of checks and balances, officials of government are held accountable for their actions and inactions while they serve the public and when they fail or come up short in the discharge of this responsibility, the doctrine posits impeachment for the executive, recall for the legislature and dismissal for the judiciary.

A reflection into the governance structure of Nigeria exposes that the doctrines of separation of power and that of checks and balances are underlying laces that the fabrics of the foundation of the Nigerian government. This work focuses on the procedure set in place by the law for the legislative arm to remove from office the executive officers at both the state and the federal level and the role the judiciary plays to affect the entire process. The Constitution of Nigeria like other democratic constitutions; creates the offices of the President,² the Vice President,³ the Governor⁴ and the Deputy Governor⁵, it also proscribes how they leave office⁶ and the powers of the legislature to that effect⁷. A cursory look at the history of Nigeria will show that the power of impeachment has over the years been abused but for the timely intervention of the judiciary in some cases.

Impeachment is both constitutional and political arrangements to remove erring public officers from office for gross misconduct or grave violations of the constitution. The impeachment clause was enshrined in the 1999 Constitution as a result of the immunity that public officers enjoy⁸.

The abuse of office or power by the executive can only be reduce to the barest minimum through the proper use of the instrumentality of impeachment in the hands of the legislature. The power to impeach must effectively and efficiently be used by the legislature to remove from office any executive officer who goes contrary to his constitutional powers or conducts himself in a way or ways not fit and proper for such office he is holding.

In the exercise of this power however, the legislature must ensure that the proper procedure is followed to the core in order to avoid such impeachment procedure being declared null and void by the judiciary.

This work does not only examine the concept of impeachment of the executive in Nigeria under the 1999 Constitution but also compares the Nigerian procedure with that of the United States of America as regulated under the United States Constitution.

The United States of America as a federal democratic republic state like Nigeria also has in its own constitution the procedure for impeachment. The United States of America Constitution of 1776 provides for the procedure for impeachment. Article II Section 4 gives the Senate the sole power to try all impeachments. The Constitution also provides that “the President, Vice President and all civil officers of the United States shall be removed from office upon impeachment for and conviction of treason, bribery, or other high crimes and misdemeanours”⁹.

This long essay will examine primarily the procedures for impeachment in Nigeria and the United States of America and the reaction of the Courts both in Nigeria and the United States of America towards impeachments. It shall also examine the role of the legislature in impeachments and uncover the lapses in the impeachment procedure and proffer solution to such lapses.

1.2 STATEMENT OF THE PROBLEM

An executive officer leaves office not only at the expiration of his tenure, or his death, or incapacitation as it is the ideal, but also upon impeachment.

Impeachment is another potent and unusual way of removing an Executive Officer. However, impeachment which is supposed to be an instrument to check the excesses of executive officers in the hands of the legislature has become a tool in the hands of political parties and politicians to remove from office an executive officer who is from another political party or who is not a ‘loyalist’. This practice is more peculiar to Nigeria where impeachment has become a tool for settling political scores.

This therefore amounts to an abuse of the power of impeachment conferred on the legislature. This underscores the essence of this research because a comparative analysis of the procedure for impeachment in Nigeria and the United States of America will expose the lapses in both legal systems and proffer solution to such lapses. These lapses are the problem this research work intends to resolve. This research work intends to answer the following questions: what does impeachment entail in Nigeria and the United States of America? Who can be impeached in Nigeria and the United States of America? What is the procedure for impeachment in Nigeria and the United States of America? What are the differences in the procedure for impeachment in Nigeria and the United States of America? How can this procedure be breached? Should there be differences, will that amount to a gap? And which is the standard for impeachment to establish the basis for amending the other?

The researcher has no doubt that this work will be of tremendous help to researchers, legislators, politicians and the public at large due to its constitutional jurisprudential value. The gap between the two legal systems is the major problem this work seeks to breach.

1.3 AIM AND OBJECTIVES OF THE STUDY

The ultimate aim of this long essay is to critically analyse comparatively the concept of impeachment and its procedures in Nigeria and the United States of America.

The essence of this work can only be achieved through a comparative approach. The aim of the comparison is fully encapsulated in the opinion of some writers thus:

Comparison is fundamental to human thought … it is the only way we can understand our nation and comparing our experience with that of other nations deepens our understanding of our own institutions. Examining politics in other societies permit us to see a wider range of political alternatives and illuminates the virtues and shortcomings of our own political life. By taking us beyond our familiar arrangements and assumptions, comparative analysis helps expand our awareness of the possibilities of politics.¹⁰

The writers further stated that “comparison is the methodological core of the scientific study of politics. Comparative analysis helps us develop explanations and test theories of the ways in which political processes work and in which political change occurs.”¹¹ The above clearly shows the place of comparison in this research. The objectives of this long essay on the other hand are:

1. To understand the procedure of impeachment and the attitude of the judiciary towards impeachment in Nigeria.
2. To understand the procedure of impeachment and the attitude of the judiciary towards impeachment in the United States of America.
3. To bring to bear the inadequacies in the procedure of impeachment in both Nigeria and the United States of America.
4. To compare both countries with the aim of improving their individual procedure of impeachment.
5. Proffer solutions to the problems discovered in the course of the research.

1.4 SCOPE AND LIMITATION OF THE STUDY

The legislature has a lot of powers in both Nigeria¹² and the United States of America¹³. The scope of this research is limited to the examination of the non-legislative power to impeach a substantive public officer.

This research is also limited to only two democratic countries of the world which are Nigeria and the United States of America. However, reference may be made to other nations where it becomes absolutely necessary in aiding the proper understanding of the subject matter.

This long essay is limited to the examination of the impeachment procedures in Nigeria and United States of America.

This work is limited to the examination of the impeachment procedure of the President and the Vice President¹⁴, the Governor and the Deputy Governor¹⁵ and does not extend to other public officers generally. However, reference to such other public officers may be made where it is necessary for better understanding of the subject matter.

1.5 SIGNIFICANCE OF THE STUDY

The significance of this study is to give a general understanding of the concept of impeachment and buttress the necessity of the concept.

This work will aid the legislature in following due process in engaging in impeachment proceedings and also educate the general public on the procedures of impeachment and the attitude of the court towards matters of impeachment.

This work is of enormous importance because it will compare Nigeria and the United States of America and recommend ways to improve the observed weaknesses in both climes.

Finally, this research is of great importance as it will add to the current literature on impeachment and also open avenues for further research in the area.

1.6 RESEARCH METHODOLOGY

The method of legal research adopted by this researcher is the doctrinal method of research. The source materials employed by the researcher includes both primary sources and secondary sources, the primary sources include the 1999 Constitution of the Federal Republic of Nigeria as Amended 2018, the 1979 Constitution of the Federal Republic of Nigeria, the American Constitution of 1776 and case laws while the secondary sources include books, journals and online materials.

The method employed in the citation of consulted materials is the Nigerian Association of Law Teachers citation guidelines (NALT).

1.7 LITERATURE REVIEW

Impeachment over the years has attracted the attention and interest of many jurists, lawyers, political scientists and analysts, Judges, scholars and many other persons. Consequently, these set of persons have at one time or the other written on this subject matter.

Plethora of materials has been consulted by the researcher in the course of this research. Some of these materials are books, journals, newspapers, online materials, case law, etc. First among these materials is “Impeachment and Presidential Immunity from Judicial Process” by Joseph Isenbergh¹⁶. In this article, the author extensively elaborated on the concept of impeachment, the grounds of impeachment and the aftermath of impeachment in the United States of America drawing mostly from the impeachment of President Clinton. This article failed to identify the challenges faced by impeachment in the United States of America and since it did not identify the challenges to impeachment in the United States of America, it definitely did not provide for ways to improve the impeachment machinery also.

Another work reviewed is “Law and the Politics of Impeachment in Nigeria: Interrogating the Basis of Judicial Control of a Political Process” by Mojeed Olujinmi Alabi of the Department of Political Science, and Ibrahim Imam of the Department of Public Law, University of Illorin, Illorin, Nigeria. In that work¹⁷, they took out time to expound with decided cases the application of the concept of impeachment in Nigeria and the attitude of the judiciary towards such impeachments. This work looked indepth at the decisions of Nigerian Courts in relation to impeachment from the Second Republic down to the present Fourth Republic. The wrticle though failed to underline the reason why the courts have interfered even in the gale of outright removal and sincere respect for the ouster clause as contained in the Consititution.

Also, an article written by Michael Abiodun Oni of the Department of Political Science and Public Administration, Babcock University, Ilisa Remo, Ogun state on the topic “Judicial Review of Governors’ Ladoja and Obi Impeachment in Nigeria’s Fourth Republic”. In this work¹⁸, he critically examined the removal from office of Governor Ladoja of Oyo State and Obi of Anambra State. And describe such removal as an abuse of impeachment powers given to the legislature. He successfully pointed out the errors in the approach carried out by the legislature in both circumstances and how the judiciary intervened. The work though fails to provide much more proactive solutions to the challenge faced by impeachment in Nigeria but then advocated from the Realist Jurisprudence for more judicial activism on the part of the Nigerian Judiciary. This present work would proffer more proactive solutions to the challenge of impeachment in Nigeria.

Also, an article written by Dr. Imo Udofa, on “The Impeachment Power of the Legislature under the Nigerian and American Constitutions Compared”¹⁹ where he critically examined the nature, procedure and offences for impeachment under the Nigerian and the American Constitution. He though fails to elaborately discuss the points of comparison from the place of convergence to the place of divergence between both statutes and practice. This present work will elaborately point out points or places where the two systems come together (convergence) and where they do not agree (divergence).

Also, an article written by Offor Maculay Arinze, Eze Christopher and Nwaeze Oliver, on the topic ‘‘Politics of Impeachment in Nigeria; A Discourse on Causes and Implications for Democratic Consolidation”,²⁰ where they narrated in detail the history of impeachment in Nigeria and the political causes of impeachment in Nigeria and the need for reforms of the laws governing impeachment in Nigeria; the work failed to look at impeachment from the legal standpoint but almost solely from the point of politics and to the extra emotional attachments towards impeachment within the political landscape. This present work would not only address impeachment from the light of politics but would also consider in-depth impeachment from the point of law in its siamesed form with politics.

Lastly, an article written by Oche, Patrick Ndubisi, on the topic “The President and Vice President: Loss of Office By Reason of Removal: Analytical Discourse of Procedure”²¹, where he analytically examined the concept of impeachment, the procedure and the implication of any breach in the procedure of impeachment. His article though is restricted to the impeachment of the President and the Vice President of Nigeria alone; it did not cover the impeachment of State Governors and Deputy Governors which this work will analyse critically.

A careful study of the works above show clearly the procedure for the impeachment of public officials and also show the attitude of the court once the procedure as laid down in the Constitution is not followed.

Gasioku²² opined in his book that “Research is a continuum”. It is on this premise that the researcher believes that though these various erudite scholars have written on this subject matter, there is still need to elaborate on the concept and procedures of impeachment in Nigeria in order to continue from whence these erudite hands have dropped the pen. In doing this, the researcher has adopted one of the most efficient approaches to research namely comparative approach, by comparing the concept and procedures of impeachment in Nigeria and United States of America.

This he believes will give a more comprehensive view on the subject matter of impeachment. The lapses in the procedure of impeachment in both countries and also proffer practicable result oriented recommendations that will help advance our political system.

1.8 SYNOPSIS OF CHAPTERS

Chapter one examined the background to the study, method of research employed in the course of the research, reviewed a plethora of materials which were relied upon in the course of the work. The chapter also limited the scope of the study to the impeachment of just executive officers at State and Federal levels and only to that of Nigeria and the United States of America. The chapter also stated the research problem, aim and the objectives of the study and the significance of the study.

Chapter two examined the history of impeachment in Nigeria and the United States of America. It also examined the various definitions of impeachment and distinguished Impeachment from the concept of removal from office under Section 143 and 188 of the 1999 Constitution.

Chapter three examined the legal framework for impeachment in Nigeria and the United States of America wherein an exposition is made about impeachment in Nigeria and the United States of America at State and Federal levels. It also examines the grounds and procedure for impeachment in Nigeria and the United States of America.

Chapter four carries out the comparative analysis of impeachment in Nigeria and the United States of America; it compares the attitude of courts in Nigeria and the United States of America towards impeachment. This chapter also examines comparatively the procedure for impeachment in both jurisdictions wherein the points of convergence (similarities) and points of divergence (differences) were analysed.

Chapter five gave a summary of the findings and observations made in the course of this research. This chapter also made some salient suggestions and recommendations towards the enhancement of the overall architecture of impeachment in Nigeria and the United States of America. This chapter also shows the contribution the present researcher has made to knowledge and the conclusion of the entire work.

CHAPTER TWO

CONCEPTUAL FOUNDATION/HISTORICAL DEVELOPMENT

2.1 HISTORY OF IMPEACHMENT

Over the course of man’s history, there were rulers of mankind from the ages of the strongest becoming kings to the ages were kings became born and had access to power as a birth right; and through these ages, these kings did as they deemed pleased in their eyes and willed as their might allowed them not having any or little regard for how they governed affected the populace that were governed. With the growth and advancement of man came the need to depose these authorities of their untouchable hold on power and this necessitated the devolution of power from the monarchs to the people. People needed to also check the powers given to those they had put in positions of authority and thus concept of checks and balances came about wherein different arms of government were employed to check the others misuse of governmental powers. From thence public officers were not to perform their duties according to their whim and caprices but according to the tenets of their laid down responsibility. But due to man’s unrivalled stubbornness, there needed a weapon to check the ultimate decision maker whenever he begins to err and thus impeachment has since developed in many democratic societies of the world due to the desire to abolish absolute power and arbitrariness.

According to Professor Ben Nwabueze, ‘concentration of government powers in the hands of one individual is the very definition of dictatorship and absolute power is by its very nature capricious and despotic.’²³ The concept of impeachment evolved as man got wiser and the need to preclude the exercise of arbitrary power became necessary. Impeachment has now become the most potent tool that is being used to keep public officers actions within the boundaries of the law; it has long reaffirmed the principles of the rule of law and constitutionalism in the Nation. The origin of impeachment process dates back to British parliamentary practice in the 14th century²⁴, when in 1376 Lord Latimer was impeached by the British Parliament – the ‘Good Parliament’²⁵. Impeachment developed because certain officers of government were, for various reasons, placed beyond the reach of ordinary courts. High judicial and executive officers were not subject to complaints of private individuals in the ordinary courts. Private persons aggrieved by the actions of such officers, turned to parliament for redress. The House of Commons became the accuser and the House of Lords the body that tried cases of impeachment.²⁶

Impeachment is not such to punish as to secure the state against its official`s misdemeanour. From the first case of impeachment in England in 1376, the practice developed and it was from the British example that the Americans learned the concept of impeachment. The history of impeachment is a continuum as each country improves on the procedure as their democracy advances.

2.1.1 HISTORY OF IMPEACHMENT IN NIGERIA

The History of impeachment is as old as mankind itself. All ancient communities had their own traditional ways of removing their erring officers from office. Nigeria is not an exception. In Nigeria, even before the advent of the British Colonial masters, our traditional communities had a way of removing from office any erring officer. For instance, in the old Yoruba kingdom, the Oyomesi could “impeach” an erring king by simply asking him to open or drink from a sacred calabash. This act signifies the withdrawal of the initial support given to him as a king.

The first formal impeachment case recorded in Nigeria was in the Second Republic. On the 8th of May, 1981, Governor Balarebe Musa of Kaduna State was impeached. The Governor was impeached under section 170 (3) of the Constitution of the Federal Republic of Nigeria 1979. It is noteworthy to state that the procedure for impeachment was not complied with stricto senso. Subsequently, the Deputy Governor of the Kano State was removed for refusal to perform duties assigned to him by the Governor. This was followed by threat of impeachment to Governors of Bendel, Cross River and Ondo States by the respective Houses of Assembly of the states²⁷.

However, there was no impeachment recorded in the first four years tenure of President Olusegun Obansanjo.²⁸ But unfortunately, his second tenure²⁹ witnessed the highest rate of impeachment in the history of Nigeria as a nation. It was characterised with the impeachment of many Governors and Deputy Governors³⁰.

Procedurally, the concept of removal from office was first introduced in Nigeria under the provisions of the Constitution of the Federal Republic of Nigeria 1963; in operation at that time was the parliamentary system of government with the President as the Head of State and the Prime Minister as the Head of Government. The Constitution of 1963 required that before a President is removed from office, a motion for his removal must have been passed in accordance with the provisions of Section 38 of the Constitution of 1963. This to hold that the procedure for the removal of the President from office under the Constitution of 1963 if a notice in writing is given to the President of the Senate a motion stating that the President of the Republic is guilty of misconduct in the performance of the functions of his office or he is unable to perform such functions³¹ and such notice must be signed by not less than one quarter of all the Senate or one quarter of all the members of the House of Representatives³² the President of the Senate shall then convene a joint meeting of both Houses of Parliament not earlier than seven days after the publication of the said notice and not later than fourteen days³³ ; at this convened meeting, the President of the Senate shall cause for a vote without debate on the motion that the President be removed from office, if two-thirds or more of the votes cast on the motion is in favour of the motion, the motion is deemed as passed but anything less, the motion is deemed defeated³⁴. Where the motion is passed, a committee would be set up to investigate the conduct of the President and the President may wish to appear himself before the committee or through a representative and no decision of the committee shall be contested before any court³⁵ ; the committee in its report shall state conclusively and expressly if it finds the President guilty or not guilty and where the committee returns a declaration of guilty on the President, the President shall convene a meeting of both houses of Parliament to consider a motion for the removal of the President from office³⁶. At this convened meeting, the sitting shall be allowed to debate on the motion and the person chairing the meeting if he thinks fit shall direct a vote be taken and if the votes cast in favour of the motion is not less than two-thirds of the number of all the members of the Parliament then the motion is deemed as passed and the President of the Republic from that moment is deemed as removed from office but if the votes casted on the motion is less than two-thirds of the members of the Parliament, the motion is deemed defeated.³⁷

From the provisions of the Constitution of 1963, it does not make specific provisions for the removal of Regional Governors, rather it empowers Regional Assemblies to make constitutions for each of the then four regions and those constitutions shall carry in them the clause for the removal of Regional Governors. There were no provisions in the constitution of 1963 for the removal of the Prime Minister from office except when the House of Representatives is dissolved or the Prime Minister ceases to be a member of the House of Representatives³⁸. It is very important to note that the word ‘impeachment’ was never mentioned in the Constitution of 1963, the first time the word ‘impeachment’ came in Nigerian statutes was with the coming of the Constitution of 1979.

Under the Constitution of the Federal Republic of Nigeria 1979, Section 132 made express provision as to the procedure of the removal for public officers and the circumstances which will permit such removal; and under the Constitution of the Federal Republic of Nigeria 1989, section 140 made provisions for the impeachment of the President and Vice President. This provision is almost identical with the provisions of section 132 of the constitution of 1979. The only difference is that under the constitution of 1979, the President of the Senate shall cause the allegation to be investigated by a committee of seven persons³⁹ while under the Constitution of 1989,⁴⁰ it is the Chief Justice who shall set up a panel to investigate, provided it is upon a request by the Senate President. This position was maintained under the constitution of 1999.⁴¹

2.1.2 HISTORY OF IMPEACHMENT IN THE UNITED STATES OF AMERICA

Impeachment originated from England in the 14th century. However, the impeachment machinery as it is known today was developed upon following the American declaration of independence in 1776, where a number of measures were taken by the constitutional framers.⁴² This, the constitution of the United States America has done by proper employment of the principles of separation of powers in its constitution. It separated the Legislative⁴³ from the Executive⁴⁴ and the Judiciary.⁴⁵

The American colonial government and early state constitutions followed the British pattern of trial before the upper legislative body on charges brought by the lower house.⁴⁶

President Andrew Johnson became the President of the United States of America in 1865. The Tenure of Office Act, the violation of which was the legal basis for impeachment, was passed by Congress over Johnson’s veto on March 2, 1867. The Act forbade the president from removing any civil officers appointed with the consent of the Senate without the approval of the Senate. Despite the certain consequences, President Johnson decided to remove Secretary of War Edwin Stanton, an ally of the Radical Republicans. This act enraged Johnson’s political enemies and set in motion the first presidential impeachment, he was impeached successfully by congress but was then acquitted at the Senate trials⁴⁷.

On two other American Presidents was the mechanism of impeachment in the United States of America initiated against, President Richard Nixon in 1974 and President Williams J. Clinton, in 1998. However, the former resigned office before his impeachment inquiry was completed in 1974, the later was fully impeached by congress but was also acquitted at the senate trials⁴⁸. Since the founding of the Republic, only 65 persons have ever been considered for impeachment by the House of Representative. Of these, 12 have been impeached and charges dropped, and four have been convicted. From this statistics, it would seem that the impeachment process is little used and insignificant.⁴⁹

2.2 CONCEPT OF IMPEACHMENT IN THE UNITED STATES OF AMERICA

According to Thomas Jefferson,⁵⁰ impeachment is “the scarecrow of the constitution.”

The concept of impeachment in the United States of America can best be explained by the quotation below:

The congress’s ultimate weapon against the president is known as impeachment. Most people think this means removal from office, but impeachment is only the first step in the process by which congress can remove a president from office. Impeachment means the formal bringing of charges against the President. It is the rough equivalent of an indictment in an ordinary criminal case. The constitution gives the sole power of impeachment to the House of Representatives. If the house decides there is sufficient evidence against a president, it impeaches- that is, it brings charges against-him. The president must then stand trial, with the senate acting as judge. If two third of the senate finds the president guilty, he is convicted and removed from office.⁵¹

The foregoing gives us a clear view on the concept of impeachment in the United States of American. The concept of impeachment is not the removal of an erring public officer from office but is only the first step in the process by which the congress removes a president from office; a part of the process of removing from office.

In the United States of America, before a person is properly removed from office, two processes must be complied with, which are the impeachment by the House of Representatives and the trial by the Senate which will be presided over by the Chief Justice of the United States of America.

2.3 CONCEPT OF REMOVAL FROM OFFICE IN NIGERIA

The word ‘impeachment’ though mostly used interchangeable with the word’ removal from office’, it is not the same. Impeachment is simply the preferring of charges against a person but does not mean that person would leave office.

In Nigeria, under the 1999 Constitution, what we practice is the concept of ‘removal from office’ and not ‘impeachment’. Although the word impeachment appeared in section 146, and 191, the main sections which provide for the removal of the President⁵² and Governor⁵³ did not in any way mention the word impeachment.

The concept of removal from offices in Nigeria was distinguished from impeachment by the Supreme Court in case of Inakoju and ors v Adeleke and ors ⁵⁴,where the Apex Court held thus:

“It is the use of the word "impeachment". The word is used freely and indiscriminately by the parties. The two courts below also used the expression freely, though not indiscriminately. Where do they get the word in section 183 of the Constitution, I ask? it is clear from the section I have stated above that there is no such word in the section. And so ask once again, where do all counsel and the courts get the word? ... Section 188 is not so worded. The section covers both civil and criminal conduct. Therefore, the word should not be used as a substitute for the removal provision of section 188 and section 188 procedures should simply be referred to as one for removal of Governor, not impeachment.”

From the decision of the Supreme Court, it is clear that the word impeachment is not to be used interchangeably with removal from office as they mean different things. This interpretation given to section 188 of the Constitution by the Apex Court, which provides for the removal of the Governor or Deputy Governor, will also apply to section 143 of the Constitution which provides for the removal of the President or Vice President. In other words, the word impeachment should not be confused with removal from office under the Nigerian Constitution, since they are not one and the same thing.

According to Jide Ogunsakin⁵⁵ ‘while they are frequently used interchangeably in academic commentaries and legal publications, “impeachment” and “Removal” are(sic) not exactly same’ He went further to quote the dictum of Niki Tobi (as he then was) in Inakoju v Adeleke⁵⁶, thus:

The word (“impeachment”) should not be used as a substitute for the removal provision of section 188. We call a spade its correct name spade and not machete because it is not one. The analogy here is that we should call section 188 procedure one of the removal of the Governor, not impeachment.

Accordingly, impeachment should not be seen as synonymous with removal from office. Impeachment is only a process by which a public officer is removal from office.

Hence in this work, the term removal from office will be used in the Nigerian context while impeachment will be used in the context of the United States of America.

2.4 DEFINITION OF IMPEACHMENT

Impeachment just like many other legal concepts cannot be defined with precision. Hence the word impeachment has defied a universal definition. However, an attempt will be made in this work to describe the concept as clear and unequivocal as possible.

Impeachment is the process by which charges are brought against a government official, which can result in his removal from office.⁵⁷ It is the equivalent of “indictment” in the criminal law. It does not mean that the person impeached is guilty, only that a trial must be held to determine his innocence or guilt.⁵⁸

The word “impeach” is derived from the Middle English “empechen” meaning to impede or accuse, and the Latin “impedicare” which means to entangle or put in fetters.⁵⁹ The word impeachment therefore means the act by which a public official who is accused of any crime is ‘arraigned’ with the sole purpose of proving or disproving the alleged crime and subsequently ordering the removal of such official if the alleged crime is proved. Hence impeachment is not an end in itself but a means to an end. It is pertinent at this juncture to look at the definition of the term impeachment in Nigeria and in the United States of America since the term has no universal definition despite its ubiquitous status.

2.4.1 DEFINITION OF IMPEACHMENT IN NIGERIA

The 1999 Constitution of the Federal Republic of Nigeria did not in any way define the word impeachment. Likewise, Nigerian authors, jurists and writer have not been able to reach a consensus on what the word entail. An overview of some definitions at this juncture is pertinent.

Oyinloye⁶⁰ quoted with approval the definition of impeachment by Chief Mike Ozekhome SAN thus:

The word impeachment connotes the practice and procedure by which political elected person are (sic) constitutionally removed from office by the legislature before the expiration of the tenure of office of such person. It is the modality adopted by the legislative arm of government to bring to an end or prematurely determine the tenure of a person’s term of office before its due expiration. It is the most powerful weapon in the hands of the legislature, which stands as a sword of Democles over other members of the legislature and executive.

Ogunsakin⁶¹ quoting the Oxford Advanced Learners Dictionary 6th edition stated, that to impeachment in the linguistic sense, means ‘to accuse a public officer or politician of committing a serious crime, especially against the against the state’.

The court of appeal in Jimoh v Olawoye ⁶² held impeachment to mean ‘… the act (by legislature) of calling for the removal from office of a public official accomplished by presenting written charge of the official alleged misconduct’. Although the 1999 Constitution failed to define the term impeachment, a careful perusal of the section shows what impeachment means in Nigeria. The section provides:⁶³ The President or Vice President may be removed from office in accordance with the provisions of this section. The subsequent subsections only provided for the guidelines to be followed before removing such Public Officer from office. Similarly, section 188 (1) makes the same provision for the removal of the Governor or Deputy Governor.

From the above, it is clear that not even the constitution itself has clearly defined the term impeachment. However, our earlier concept of removal from office as is stated in the constitution is maintained and impeachment is only seen as means to remove a public official from office.

The word impeachment in Nigeria therefore represent the act by which a public official who is accused of any misconduct (the legislature sees as gross) is removed from office after a two-third majority votes of the Legislature has supported such removal from office.

2.4.2 DEFINITION OF IMPEACHMENT IN THE UNITED STATES OF AMERICA

The Constitution of the United States of America just like its Nigerian counterpart did not define what impeachment means. This work examines some meanings of the word impeachment. Impeachment can be seen as a formal accusation issued by a legislature against a public official charged with crime or other serious misconduct. This implies that the impeachment is a means of trying a public official suspected to have involved in any act of misconduct.

In the United States impeachment of public officials is provided for in the federal government and in most states. In the federal matters the U.S Constitution gives the House of Representatives the power to impeach civil officers of the United States, including the President and Vice President, but not including members of the congress.

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¹ B. Montesquieu, ‘(The Spirit of the Laws), Complete Works, Vol. 1’ < https://ia902701.us.archive.org/22/items/spiritoflaws01montuoft/spiritoflaws01montuoft.pdf> accessed 17th August, 2019

² Section 130 CFRN 1999 (as amended)

³ Ibid Section 142

⁴ Ibid Section 176

⁵ Ibid Section 187

⁶ Ibid Sections 135, 143, 144, 180, 188 and 189

⁷ Ibid

⁸ Ibid Section 308

⁹ Article II Section 4, The Constitution of the United States of America

¹⁰ Gabriel A. Almond et al, Comparative Politics Today A World View (8th Edn, Pearson Education Pte. Ltd)P 31

¹¹ Ibid

¹² (n2) Section 4

¹³ (n9) Article I

¹⁴ (n2) Section 143(1)

¹⁵ Ibid section 188(1)

¹⁶ Joseph Isenbergh, ‘Impeachment and Presidential Immunity from Judicial Process’ Yale Law and Policy Review (1999) (18) 53-109.

¹⁷ Mojeed Olujinmi Alabi and Ibrahim Imam, ‘Law and the Politics of Impeachment in Nigeria: Interrogating the Basis of Judicial Control of a Political Process’, MOAA& II (17) (2) 17-30

¹⁸ Oni Michael Abiodun, ‘Judicial Review of Governors Ladoja and Obi Impeachment in Nigeria’s Fourth Republic’, Singaporean Journal of Business Economics and Management Studies [2013] (1) (6) 117-128

¹⁹ Imo Udofa, ‘The Impeachment Power of the Legislature under the Nigerian and American Constitutions Compared’, International Journal of Law and Legal Jurisprudence Studies [2015] (2) (4) 1-22

²⁰ Offor Maculay Arinze, Eze Christopher and Nwaeze Oliver, ‘Politics of Impeachment in Nigeria; A Discourse on Causes and Implications for Democratic Consolidation’ Journal of Policy and Development Studies [2016] (10) (1) 48-56

²¹ Oche, Patrick Ndubisi, ‘The President and Vice President: Loss of Office By Reason of Removal: Analytical Discourse of Procedure’ JPL [2013] (1) (1) 1-19

²² Gasioku M.U, Legal Research Methodology (Jos University Press Ltd, 1993) P. 4

²³ Ben Nwabueze, The Presidential Constitution of Nigeria. (Hurst and Co, 1982) P.32.

²⁴ Peter Woll, America Government Readings and Cases (5th Edn, Little, Brown and Company Canada Ltd.) P.102-103.

²⁵ Jack Simson Caird, ‘Impeachment: Briefing Paper’ <http://researchbriefings.files.parliament.uk/docume nts/CBP-7612/CBP-7612.pdf> accessed 12th October, 2019

²⁶ Woll (n24) 103

²⁷ Offor Maculay Arinze et al (n20) P. 56

²⁸ Between the period of 1999-2003

²⁹ Between the period of 2003-2007

³⁰ Bernard Balogun, ‘History of impeachment in Nigeria’ <https://www.newsexpressngr.com/news/41971-History-of-impeachment-in-Nigeria-By-Bernard-Balogun/> accessed 10th October, 2019

³¹ Section 38(2)(a) CFRN 1963

³² Ibid Section 38(2)(b)

³³ Ibid Section 38(3)

³⁴ Ibid Section 38(4)

³⁵ Ibid Section 38(5)

³⁶ Ibid Section 38(6)

³⁷ Ibid Section 38(7) and (8)

³⁸ Ibid Section 87(8)

³⁹ Section 140 (5) CFRN 1989

⁴⁰ Section 143 (5) CFRN 1999 (as amended)

⁴¹ Aligba, A., ‘The Abuse and Misuse of the Impeachment Machinery under the 1999 Constitution of Nigeria’, BSUJPPL [2014] (1) (1) 61

⁴² ‘A Brief History of Presidential Impeachment’ <https://www.historyextra.com/period/modern/history-impeachment-president-trump-nixon-clinton-explained/ > accessed 12th October, 2019

⁴³ Article I, The Constitution of the United States of America

⁴⁴ Ibid Article II

⁴⁵ Ibid Article III

⁴⁶ ‘Impeachment’ <https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role .htm> accessed 13th October, 2019.

⁴⁷ Ibid

⁴⁸ Daniel H. Erskine, ‘The Trial of Queen Caroline and the Impeachment of President Clinton: Law As a Weapon for Political Reform’, 7 Wash. U. Global Stud. L. Rev. 1 (2008) <https://openscholarship.wustl.edu/law_globalstudies/vol7/iss1/2> accessed 12th October, 2019

⁴⁹ Woll, (n24) 102

⁵⁰ Jefferson T., Political and Government in the United States 2nd Edn. (Brace and World Inc., 1968) P. 36.

⁵¹ Krasner, M.A. Et al., American Government Structure and Process (Macmillan Publishing Co. Inc. New York 1977) P.57-58

⁵² (n2) Section 143

⁵³ Ibid Section188

⁵⁴ (2007) 4 NWLR (Pt. 1206) 427 at 668

⁵⁵ Jide Ogunsakin, ‘Evaluation of Impeachment Proceedings under the Constitution of the Federal Republic of Nigeria 1999’ Journal of Law, Policy and Globalization [2015] (34) P.132

⁵⁶ Inakoju v Adeleke (n54)

⁵⁷ Alan Hirsch, ‘A Citizen`s Guide to Impeachment’ <http://essential-book.org/books/impeach/> accessed 13th October, 2019

⁵⁸ Ibid.

⁵⁹ Ibid.

⁶⁰ “Ozekhome, The Impeachment Process in the Third Arm of Government” in Oyinloye, O. A. ‘Roles of Legislature in Impeachment Proceedings Under the 1999 Constitution.’ (Unpublished) P.12

⁶¹ Ogunsakin (n33) 131

⁶² (2001) 10 NWLR (Pt. 929) 307 at 336

⁶³ (n2) Section 143 (1)

• Université: University of Jos
• Cours: Law
• Note: 63/100
• Auteur: Mitong Dapal (Auteur)
• Année de publication: 2019
• Pages: 103
• N° de catalogue: V512624
• ISBN (ebook): 9783346090478
• ISBN (Livre): 9783346090485
• Langue: anglais
• mots-clé: Impeachment, Law, Politics, Nigeria, United States of America, Clinton, Trump