The constitutional vandalism in Kogi must end now

The purported impeachment of the Deputy Governor of Kogi State, Mr. Simon Achuba, by the Kogi State House of Assembly, and the alleged nomination of one Mr. Edward Onoja as his replacement by Governor Yahaya Bello, are acts of constitutional vandalism and a nullity and should be deprecated by all lovers of democracy and adherents of the rule of law.

Without much ado, let me say clearly that the futile impeachment proceedings initiated against Mr. Achuba by the Kogi State House of Assembly ended by operation of law (automatically) the moment the House received the Report of the 7-man Investigation Panel dated the 18th day of October, 2019 which completely exonerated Mr. Achuba of (all) the 5 allegations of gross misconduct brought against him by the House.

Impeachment is not, and not never be deployed as a malignant weapon for insatiable political vendetta. It was not the intention of the framers of the 1999 Constitution to give a House of Assembly omnipotent powers in the process of removing elected governors and deputy governors. This is apparent from the role ascribed to the Chief Judge of a State and the institutional independence given to the 7-man Investigation Panel under Section 188 of the Constitution.

There are only two definitive conclusions that the Panel is mandated to reach under the Constitution, and they have variant implications. The Panel must arrive at one of the two conclusions without ambiguity.

First, the panel can report to the House that the allegations of gross misconduct against a governor or deputy governor as the case may be, have been proved. In that case, the House “within fourteen days of the receipt of the report, the House of Assembly shall consider the report, and if by a resolution of the House of Assembly supported by not less than two-thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.”. See Section 188 (9) of the Constitution.

Second, “Where the Panel reports to the House of Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.” See Section 188 (8) of the Constitution.

I have perused the Report submitted by the 7-man Investigation Panel constituted by the Chief Judge of Kogi State on the 26th of August, 2019 to investigate the Allegations of Gross Misconduct brought against the Deputy Governor of Kogi State, Mr. Achuba. The Report was signed and endorsed by the Chairman, Mr. John Baiyeshea, SAN, and by all the six members of the Panel. In its conclusion, the Panel stated and reported to the Kogi State House of Assembly as follows:

“In line with Section 188 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) quoted herein before, we hereby report to the Kogi State House of Assembly that the allegations contained in the Notice of Allegations admitted in evidence by this Panel as Exhibit C7 have NOT BEEN PROVED.”

It is a settled principle of constitutional interpretation that when the words used in the Constitution are clear and unambiguous, they should be given their plain, literal, ordinary and grammatical meaning and interpretation. See the case of DANGANA & ANOR v. USMAN & ORS (2012) LPELR-25012(SC) where the Supreme Court opined thus:

“In the literal rule of interpretation, Courts must interpret words in the Constitution in accordance with the intendment and certainly, not in a way opposed to the purpose intended for the enactment. There should be no divergence but a strict confinement within the ordinary meaning of the words used in the Constitution unless it is at variance with the intention of the legislature to be gathered from the words used or leads to any manifest absurdity or repugnance. Fawehinmi v. I.G.P. (2000) 7 NWLR (pt. 665) pg. 481. Awolowo v. Shagari (1979) 6-9 SC 51.” Per ADEKEYE, J.S.C (Pp. 32-33, paras. F-B).

From the relevant constitutional provisions reproduced above, it is beyond disputation that the Kogi State House of Assembly is barred by Section 188 (8) of the Constitution from deliberating, vetting, supervising or in any manner reviewing the conclusion of the Investigation Panel. Indeed, the House is not in a position to express any opinion on the report.

The Constitution has expressly determined the destiny of the impeachment proceedings upon the exoneration of the subject of the investigation by the Investigation Panel. There is no ambiguity as to what should happen where the Panel reports to the House of Assembly, as in the instant case, that the allegations have not been proved. The Constitution states that “no further proceedings shall be taken in respect of the matter”.

However, the course of action would have differed if the Panel were to report that the allegations against Mr. Achuba have been proved. Since the opposite conclusion was reached, the only permissible consequence is that no further proceedings can be taken in respect of the matter.

To avoid any mischievous argument in favour of the constitutional delinquents in Kogi State, one point should be clarified. Section 188 (10) of the Constitution 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 ouster clause on the face value suggest that steps taken by the House of Assembly in relation to the impeachment proceedings cannot be questioned in court.

That is not the correct construction of the intendment of that subsection. The Supreme Court in 2007 laid down the conditions that must be strictly complied with before recourse can be made to the ouster clause in subsection (10) supra. In the case of INAKOJU & ORS v. ADELEKE & ORS (2007) LPELR-1510(SC), the Apex Court listed the conditions as follows:

 “1. The provisions of Section 188(1) to (9) must be strictly complied with before a Governor or Deputy Governor can be constitutionally removed from office. 2. It is only when the provisions of Section 188(1) to (9) are complied with that the ouster clause of Section 188 (10) can be invoked 
in favour of the House and to the disadvantage of the removed Governor or Deputy Governor. 3. It is only when Section 188(1) to (9) is complied with that the jurisdiction of the courts is constitutionally ousted.” (Pp. 129, paras D – F).

Impeachment is a process, it is not an event. There can be no accidental impeachment. The process has several stages which must be adhered to strictly and religiously. Any procedural infraction renders the entire process a nullity.

That is the point that the Supreme Court made in the above case of INAKOJU & ORS v. ADELEKE & ORS where the court nullified and voided the purported removal of the then governor of Oyo State, Mr. Rashidi Lodoja.

In the Inakoju’s case, the Supreme Court made it clear that ignorance on the part of the legislature regarding the process of removing a governor or deputy governor is inexcusable. The court enthused thus:

“Are we still in the learning process? What type of lessons will the appellants still need on Section 188? About four months to the end of a two-term of four years each making a total of eight years, or even a single term of four years, legislators cannot express ignorance of the provisions of Section 188. They cannot say that they are still learning the provision or they need more tutorials on the section. Unfortunately, no teacher will be available to them. A worst student of history can be a master of the subject after a period of four to eight years. If he still remains a novice of the subject after such a period, then history will not forgive him in its judgment.” (Pp. 130 – 131, paras. E – A).

Since the Investigation Panel in Kogi State has reported that the allegations against Mr. Achuba has not been proved, that is the end of the matter. The question of subsection (10) does not arise. Any suggestion that the office of deputy governor of Kogi State is vacant is legally untenable. See also the case of DAPIALONG & ORS. V. DARIYE & ORS. (2007) 8 NWLR (Pt. 1036) 332.

It is a sad commentary that lawmakers in the Kogi State House of Assembly have shamelessly reduced themselves to pawns of Governor Yahaya Bello, a man who’s scandalous, incompetent and unenviable record of public service remains unbeatable in the present day Nigeria. The lawmakers have by their inordinate acts, sent a message to the world that they are agents of constitutional vandalism with no regard for the rule of law and the tenets of democracy.

Kogi State and by extension Nigeria, has been registered in the global map of state sponsored impunity as a result of the sustained rape of basic constitutional values by tyrants who have found solace in complicit and morally bankrupt law enforcement institutions.

The constitutional vandals in Kogi State should be reminded of the immutable words of the Supreme Court of Nigeria in the Inokuju’s case on the role of the legislature and the executive in our constitutional democracy. The court rebuked that:

“The Legislature is the custodian of a country’s Constitution in the same way that the Executive is the custodian of the policy of Government and its execution, and also in the same way that the Judiciary is the custodian of the construction or interpretation of the Constitution. One major role of a custodian is to keep under lock and key the property under him so that it is not desecrated or abused. The Legislature is expected to pet the provisions of the Constitution like the way the mother pets her day-old baby. The Legislature is expected to abide by the provisions of the Constitution like the way the clergyman abides by the Bible and the Imam abides by the Koran. And so, when the Legislature, the custodian, is responsible for the desecration and abuse of the provisions of the Constitution in terms of patent violation and breach, society and its people are the victims and the sufferers” (Pp. 131, paras. B – E).

The sinister, ludicrous and ‘treasonous’ insinuation by the Kogi State House of Assembly that it has “removed” or “impeached” Mr. Achuba should not only be dismissed with unrestrained contempt, but should be visited with appropriate legal sanctions which should include the immediate arrest and prosecution of the impostor, Mr. Edward Onoja, and his accomplices.

Let me reiterate that the office of the Deputy Governor of Kogi State is not vacant. The Deputy Governor of Kogi State has not been impeached. By Section 191 (3) of the Constitution, a governor can only nominate a person to the office of deputy governor during the currency of his term if the office becomes vacant “…by reason of death, resignation, impeachment, permanent incapacity or removal in accordance with section 188 or 189 of this Constitution.” As earlier shown, Mr. Achuba has not been removed in accordance with Section 188 of the Constitution.

I call on the Chief Judge of Kogi State and all judicial officers in Kogi State to rise to the occasion and end the legislative and executive lunacy that is playing out in Kogi State. Members of the Kogi State Judiciary should exude courage and fidelity to their oath of office; and bear true allegiance to the Constitution of the Federal Republic of Nigeria. They should not be participles criminis (they should not aid, abet or assist in the criminality).

By the combined effect of Sections 185 and 187 of the Constitution, a person nominated as deputy governor must be sworn-in by the State Chief Judge before he or she can assume office. The Chief Judge of Kogi State and indeed all judicial officers in the State are urged to distance themselves from the duplicitous dance of shame of Yahaya Bello. They should resist any invitation to desecrate the Constitution.

I also call on the Inspector General of Police and all security agencies in Nigeria not to lend their cohesive instruments to the subversive and patently unconstitutional actions of Governor Bello and his cronies in the Kogi State House of Assembly. The security men attached to the deputy governor should be restored immediately. Mr. Achuba still enjoys immunity under Section 308 of the Constitution. Thus, he can neither be arrested nor detained.

 We all have a collective duty to halt Nigeria’s continuous descent into a banana republic. History will vindicate the just.

Effiong, a Lagos-based legal practitioner and human rights activist, can be reached on [email protected]