The Misconstruction of the word “Impeachment” under the 1999 Constitution of the Federal Republic on Nigeria

Every democratic society has mechanism that checkmates its leaders from becoming autocratic. This is in consonance with the words of Lord Acton that “Power corrupts, absolute power corrupts absolutely”. Nigeria, like most democratic societies, has one of such mechanisms and this is known as “Impeachment or removal”. This piece is aimed at ascertaining the real meaning of the word “Impeachment”.

The Black’s law dictionary (9th edition) defines Impeachment as “The act (by a legislature) of calling for removal from office of a public official, accomplished by presenting a writing charge of the official’s misconduct; for example a written accusation of the House of Representatives of the United States to the Senate of the United States against the President, Vice President, or an officer of the United States, including federal judges”. Wikipedia defined Impeachment as “a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as criminal or civil punishment”.

The 1999 Constitution of the Federal Republic of Nigeria was copied from the constitution of the United States of America and Impeachment under their constitution means to formally accuse a public official of a crime. In the United States, it is only the House of Representatives that have the power to impeach the President. The next procedure after impeachment is trial and then removal or acquittal. In the United States, only the Senate has the power to try and remove or acquit a President who has been impeached (by the House of Representatives). Only two Presidents have been impeached in America’s history, and both were acquitted by the Senate. They are President Andrew Johnson (America’s 17th President who was acquitted by just one vote) and President Bill Clinton (America’s 42nd President).

Our Courts, Legal practitioners, Legal scholars, Law students, newspapers and the populace interchange “impeachment” with “removal” because they are copying the drafters of the 1999 Constitution of Federal Republic of Nigeria who with all humility and respect misinterpreted or misused the word “impeachment”.

In the only two passages in which in the constitution that the word “impeachment” appears it is used as if it meant “removal”. In Section 146 which states that:

Section 146 (1); The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 of this Constitution.

Section 146 (3) (a); Where the office of Vice-President becomes vacant:-

  • By reason of death or resignation, impeachment, permanent incapacity or removal in accordance with section 143 or 144 of this Constitution…;

Again, in section 191 of the constitution which also states;

  1. (1) The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the governor from office for any other reason in accordance with section 188 or 189 of this constitution.

Section 191(3) (a); Where the office of the Deputy Governor becomes vacant –

  • By reason of death, resignation, impeachment, permanent incapacity or removal in accordance with section 188 or 189 of this Constitution;

While the impeachment clauses in the United States constitutions states thus;

Article 1, section 2, Clause 5: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article 1, Section 3, Clause 6: The Senate Shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; and no person shall be convicted without the concurrence of two thirds of the Member present.

Article 1, Section 3, Clause 7: Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold or enjoy any Office of honour, trust or profit under the United States…

Article 2, Section 4: The President, Vice President and all the Civil Officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Well, an office can’t possibly become vacant by reason of “impeachment” as stated in the Nigerian constitution. Just like people don’t go to prison simply because they have been accused of an offence, a Vice President or Deputy Governor’s office can’t become vacant simply because he or she has been impeached. That would be a perversion of justice.

The attitude of our courts in using the words “impeachment” and “removal” interchangeable can be seen in the case of Dapianlong v. Dariye SC. 39/2007 where the Supreme Court stated that “It should  be  noted that section 188 which  deals with the removal or impeachment of a Governor or Deputy Governor from office talks of “members” and “all members” in different subsections and while describing the function or duties of the members of the House in relation to the removal of the Governor or Deputy Governor there under…”

The Supreme Court in the case of Inakoju v. Adeleke (2007) 4 NWLR (pt, 1025) 423 at 611 – 618, where Justice Niki Tobi JSC (as he then was) in his leading judgment tried to distinguish the difference between “impeachment” and “removal” when he said;

The point I have been struggling to make is clear from the above relief. Section 188(1) and (2) does not provide for the word ‘impeachment”. The appropriate word is removal, although section 188(1) contains the verb “removed”. In the circumstances, the first relief should have used the word ‘removal’ in the place of ‘impeachment’.

 What is the meaning of impeachment? .Black’s Law Dictionary defines the word as follows:

 ‘A criminal proceeding against a public officer, before a quasi-political court, instituted by a written accusation called articles of impeachment; for example a written accusation of the House of Representatives of the United States to the Senate of the United States against the President, Vice President, or an officer of the United States, including federal judges.’

 This definition, with a slant for the United States Constitution, does not totally reflect the content of section 188 of the Constitution, as it conveys so much element of criminality. Section 188 is not so worded. The section covers both civil and criminal conduct. I am not saying that the definition vindicates the totality of the impeachment provision of the United States Constitution. It is my view that the word should not be used as a substitute to the removal provisions of section 188. We should call spade its correct name of spade and not a machete because it is not one. The analogy here is that we should call the section 188 procedure one for the removal of Governor or Deputy Governor, not of impeachment.”

Curiously, under the Nigerian constitution never uses the word “impeachment” in relation to the President and State Governors; it instead talks of the procedures for “removal” of the President and Governors from office. Impeachment was used only in referring to the offices of the Vice President and Deputy State Governors.

Some may argue that “impeachment” and “removal” can be used interchangeable because Corpus juris Nigeria is different from Corpus juris Secundum(America). But it’s still my humble submission that a legislative amendment to our 1999 Constitution be made to correct this manifest error because from the wordings of our constitution, the intent of the drafters was “removal” and not “impeachment”.

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