The Constitutional Vandalism In Kogi State Must End Now, By Inibehe Effiong

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 18^th 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
26^th 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.

Inibehe Effiong is a Lagos-based legal practitioner and
human rights activist. He can be reached on
[email protected]^[1]

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