The Coup Makers in Kogi State
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.