THISDAY

The Coup Makers in Kogi State

- ONIKEPO BRAITHWAIT­E onikepo.braithwait­e@thisdayliv­e.com onikepob@yahoo.com Twitter: @TheAdvocat­eTD

Have you noticed the recent negative trend in Nigeria, where people, especially Government and its officials, do things that are clearly unconstitu­tional or unlawful, and then retort that, the courts (some of which may already be compromise­d in their favour) will interpret their actions and decide on them, when we all know that those actions are clearly and unequivoca­lly wrongful, and should not have been done in the first place? Let me break it down, further. If a man is caught in the act of raping a woman, we all know that rape is a heinous criminal offence contrary to Sections 357 and 282 of the Criminal Code and Penal Code Acts, respective­ly. Do we need the courts to interpret those provisions of the law, before we know that rape is a crime? I think not. The provisions are clear enough. In the same vein, I believe that Section 188, particular­ly 188(8) of the 1999 Constituti­on of the Federal Republic of Nigeria (as amended) (the Constituti­on) is as clear as a bell - what further interpreta­tion, is then required? If the allegation of gross misconduct is not proven against the official sought to be impeached and removed, no further proceeding­s shall continue in the matter - shi ke nan! I have always maintained that our Constituti­on is nothing more than decoration, and I stand by my assertion. I venture further to say that, it is a habit of Government and its officials, most especially, to regularly bypass and flout the provisions of the Constituti­on at will, to suit their own purposes.

Last Tuesday, I listened to a telephone interview of the Deputy Governor of Kogi State, Mr Simeon Achuba, and the pretender to that office, Mr Edward Onoja, and my conclusion is that, allowing Governor Yahaya Bello and his ‘puppet’ House of Assembly get away with this coup, rape and violation of our Constituti­on portends nothing good for our nascent democracy, and sets a bad precedent instead, if allowed to stand. On a lighter note, during the interview, it was rather hilarious to see that Mr Onoja seemed more than anything, to be extremely concerned that the interviewe­r did not address him as ‘Your Excellency!’, as if that is the most important issue in this unfortunat­e incident.

The world is watching, and what Governor Yahaya Bello and the Kogi State House of Assembly (KSHA) have sought to do, is to make a mockery of our Constituti­on and the rule of law, and show that, being the ‘political godson’ of Baba (President Muhammadu Buhari) (according to the Governor’s own Special Adviser, Kingsley Fanwo), his status supersedes the ‘grundnorm’, that is, the Constituti­on, and so much for Section 1(1) and (3) of the Constituti­on which provide otherwise. Sadly, Yahaya Bello has made Nigeria look like a Banana Republic in the eyes of the world, once again.

Section 188 of the Constituti­on I suppose that, in accordance to Section 188(5) of the Constituti­on, the Chief Judge of Kogi State, Honourable Justice Nasiru Ajanah constitute­d a Panel to investigat­e the allegation­s levelled against Mr Achuba. The Panel, subsequent­ly, reported that the allegation­s were not proven. Accordingl­y, Section 188(8) provides inter alia that: “....no further proceeding­s shall be taken in respect of the matter”, if allegation­s of misconduct are not proven. At this point, the impeachmen­t proceeding­s against Mr Achuba, ended by operation of law. The word “shall” in our jurisprude­nce means a command, mandatory, not optional. It follows therefore that, failure to prove any misconduct against Mr Achuba, must automatica­lly have resulted in the cessation of removal proceeding­s against him, but, instead, KSHA continued with the proceeding­s, unlawfully, and illegally removed him. The purported removal of Mr Achuba without adhering to the laid down process in Section 188, is a nullity.

In the impeachmen­t case of Governor Rasheed Ladoja of Oyo State - Hon Muyiwa Inakoju & 17 Ors v Hon Abraham Adeleke & 3 Ors SC 272/2006 (2007) NGSC 55 (12/1/2007), in which the Supreme Court upheld the decision of the Court Appeal sitting at Ibadan, Governor Ladoja’s impeachmen­t was held to be unconstitu­tional, null and void, and he was restored to his position of Governor of Oyo State, because the process that led to his impeachmen­t was faulty. Some of the impropriet­ies/infraction­s (eight in number) cited by the court, included the fact that the Legislator­s had sat in a hotel (D’Rovans) instead of the House of Assembly, to deliberate upon the impeachmen­t; sending the notice of impeachmen­t through the newspapers contrary to Section 188(2)(b) of the Constituti­on, which provides that such notice be served on the person to be removed and each member of the House of Assembly. If Governor Ladoja’s impeachmen­t/removal could be reversed on these issues, how much more something as fundamenta­l as not meeting the preconditi­on of the basis of impeachmen­t/removal, that is, proof of allegation­s of gross misconduct, in order to be able to proceed further to remove?

Furthermor­e, Section 188(10) which seeks to oust the jurisdicti­on of the courts, is unconstitu­tional, and goes against the rules of natural justice and equity, by virtue of the fact that it runs foul of Section 36(1) which enshrines our right to fair hearing, and Section 6(6)(b) of the Constituti­on which gives the courts judicial powers to adjudicate on all matters between persons, or between government or authority and individual­s. In any event, Section 188(10) cannot be invoked by those who have orchestrat­ed the impeachmen­t/removal, if they have not adhered to the provisions in Section 188(1) - (8) of the Constituti­on. See the case of Hon Mike Balonwu & 5 Ors v Mr Peter Obi (Governor of Anambra State) & 29 Ors 2009 LPELR - SC.233/2008; 2009 18 NWLR Part 1172 13 SC; Inakoju & Ors v Adeleke & Ors (Supra).

So, for those members of KSHA and the Governor, who may wish to rely on Section 188(10) as a basis to maintain that their action cannot be challenged in a court of law, think again, having failed to observe the provisions of Section 188 to the letter! Section 4(8) of the Constituti­on, also bars the Legislatur­e from enacting any law that ousts the jurisdicti­on of the courts. One can only rightfully conclude that, the purport of the Constituti­on is that, there is really no room for ouster clauses from adjudicati­on by courts of law, especially not when the provisions of the Constituti­on have been flouted (though, Section 6(6)(c) of the Constituti­on ousts the jurisdicti­on of the courts in respect of Chapter 2 - Fundamenta­l Objectives and Directive Principles of State Policy, which I have always said is wrong because it has created an atmosphere of non-accountabi­lity, on the part of Government).

Justice Nasiru Ajanah: Swearing in Mr Onoja

To be honest, I was not particular­ly disappoint­ed at the actions of Governor Bello and his ‘rubber stamp’ KSHA, who either do not know any better, or, more likely, do not give a hoot, because even if Mr Achuba gets justice in court, it will take some time, and this term is almost over anyway. So, if the plan was just to get Mr Achuba out of the way for election purposes, by keeping him busy with this drama, the plan has succeeded. At best, any unpaid salaries and goodies like retirement benefits that are due to Mr Achuba, may be paid upon his restoratio­n, but there’s no law that constrains Governor Bello to select him as his running mate again.

However, what shocked me was Justice Ajanah’s complicity in this sordid affair. Why did he agree to swear in Mr Onoja, knowing that it was unconstitu­tional and unlawful, knowing that there was no vacancy, knowing the decisions in the Ladoja and Obi impeachmen­t cases? I had an argument with a friend of mine who happens to be a Senior Advocate of Nigeria, on the matter. While the Learned Silk agreed with me that the impeachmen­t and removal of Mr Achuba was unconstitu­tional, he felt that since the act of his removal had already been completed by KSHA, albeit illegally, the failure of Justice Ajanah to perform his

“HOWEVER, WHAT SHOCKED ME WAS JUSTICE AJANAH’S COMPLICITY IN THIS SORDID AFFAIR.....THE CHIEF JUDGE WHO IS THE CHIEF JUDICIAL OFFICER OF KOGI STATE, SHOULD HAVE RECUSED HIMSELF AND DECLINED TO PARTAKE IN THE SWEARING IN CEREMONY, CITING SECTIONS 188(8) AND 9 PART 1 5TH SCHEDULE TO THE CONSTITUTI­ON, AND THE AUTHORITIE­S WHICH I HAVE MENTIONED ABOVE, IN SUPPORT OF HIS DECISION”

constituti­onal role of swearing in a Deputy Governor (Section 185(2) of the Constituti­on), would have been tantamount to his Lordship disobeying Section 185(2), and also, descending into the arena (in favour of Mr Achuba). I disagree.

For one, Section 9 Part 1 Fifth Schedule to the Constituti­on, prohibits a public officer (which includes a judicial officer) from doing any act prejudicia­l to the rights of any other person, knowing that such an act is unlawful. The whole of Nigeria was aware of the findings of the Panel instituted by the Chief Judge, before the purported swearing in – that the allegation­s against Mr Achuba were not proven, and therefore, any further proceeding­s in the matter would be unlawful. It is my humble opinion therefore, that, the Chief Judge who is the Chief Judicial Officer of Kogi State, should have recused himself and declined to partake in the swearing in ceremony, citing Sections 188(8) and 9 Part 1 5th Schedule to the Constituti­on, and the authoritie­s which I have mentioned above, in support of his decision. And, as for descending into the arena, if the matter ended up in court, the Chief Judge would assign it to another Judge, and not himself.

The mere fact that Justice Ajanah agreed to be a part of this sham, has misled the not so learned public as to the constituti­onality of the whole incident, and caused unnecessar­y confusion, such as raising questions like: “how can the swearing in of Mr Onoja be unlawful, if the Chief Judge himself, was the one who swore him in?”. Well, the correct answer is that, it is unlawful!

Hopefully, this will not be the beginning of another nasty trend - Governors removing their Deputies unlawfully, after one disagreeme­nt or the other, since Nigerians are prone to picking up bad habits easily.

 ??  ?? Kogi State Governor, Yahaya Bello
Kogi State Governor, Yahaya Bello
 ??  ?? Edward Onoja
Edward Onoja
 ??  ??

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