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Why Bayelsa legislators can sit anywhere in Nigeria to impeach Gov Alams - Gani, Kayode SANS

Posted by By Ise-Oluwa Ige, Abuja on 2005/12/02 | Views: 602 |

Why Bayelsa legislators can sit anywhere in Nigeria to impeach Gov Alams - Gani, Kayode SANS


When Bayelsa State Governor, Chief Diepreye Alamieyeseigha was jumping bail in the United Kingdom where he was facing a three count charge of money-laundering, he knew he was taking a big risk.

When Bayelsa State Governor, Chief Diepreye Alamieyeseigha was jumping bail in the United Kingdom where he was facing a three count charge of money-laundering, he knew he was taking a big risk. He knew his travails would be worsened if he was caught in the process of absconding from prosecution. But he was also not a fool not to know that if he remained in the United Kingdom for more time than necessary, he would be impeached on the account that he could no longer perform the functions of his office. He was also no fool not to know that if he was impeached while facing trial in the UK, he would still be be made to face the mother of all trials in Nigeria.

He probably must have thought that if he could abscond, he would stand a better chance to contend with some of his problems including the growing plot by his state legislators to impeach him over allegation of gross misconduct; plans by the Federal Government to prosecute, convict and jail him over mounting allegations of official corruption and plan to ban him from politics for a maximum of ten years, through the use of the Code of Conduct Tribunal over his failure to declare his assets as required by law.

For contemplating jumping bail therefore, his calculation, probably, was that it would be far better and ‘more courageous' of him to make an attempt to manage his crisis-ridden life from Nigeria than from the United Kingdom. But if all these were his thoughts, he seemed to have got it wrong.
This is because, from all indications now, his wonderful escape from the United Kingdom to Yenagoa, the Bayelsa State capital, seemed to have worsened his problems rather than helping his case.

For instance, his conduct was not only roundly condemned by Nigerians, his escape from London is one of the reasons why his state legislators are insisting on his removal from office. Majority of these legislators whose elections were bankrolled by Gov Alams even fled the state capital on the grounds that their lives were no longer safe in Bayelsa with the big masquerade still parading himself as the governor of the state.

At the commencement of the impeachment process against the governor, the new Speaker of the state House of Assembly had to address a press conference in Lagos to state reasons why they fled their state. Worse still, the poor people of Bayelsa are also daily protesting the moral right of the governor to remain in office after jumping bail in the United Kingdom and denting the image of the Ijaw nation, home and abroad. Although the governor is said to be making frantic efforts to lobby the fleeing legislators to his side, he is said to be banking on a legal controversy to the effect that they can not sit and impeach him outside jurisdiction with their decision binding on him.

But Lagos lawyer, Chief Gani Fawehinmi (SAN) said that the governor was nothing but a self-deluding character. He said that assuming the legislators cannot sit in Yenagoa, he said the governor can still be removed via constitutional means.

CAN A SITTING GOVERNOR BE IMPEACHED OUTSIDE JURISDICTION?
According to Chief Gani (SAN), members of Bayelsa House of Assembly could sit anywhere in the country to impeach Governor Diepreye Alamieyeseigha so far a two third majority of the sitting legislators in the state agreed that he had misconducted himself.

According to him, there was nothing sacrosanct about the legislators sitting in the state capital before impeachment process could be carried out against an erring governor. His exact words: 'what is important is that two third of the House members must approve the removal.
'The Section 188 of the 1999 Constitution which provides for the procedure by which a sitting governor can be impeached does not say that they (the legislators) must meet in a particular place.

'Come to think of it. What if the place, that is the state, is violently hostile?
'What if there is a major crisis that prevents the meeting in Yenagoa for instance?
'Does that mean that the governor will just continue to do the nonsense he has been doing over the weeks since he jumped bail and ran out of justice in Britain?
'The point I am making is that there is nothing sacrosanct about the legislators sitting in the state before the governor can be removed from office," he said. Continued he:

'Section 188 of the 1999 Constitution does not prevent any impeachment of a governor outside the capital of a state. That is the only section that deals with impeachment," he said.

Also aligning in thought with him on the provisions of section 188 is an Abuja based legal practitioner and Senior Advocate of Nigeria (SAN), Prince Adetokunboh Kayode (SAN). He was of the opinion that the 1999 Constitution makes the House of Assembly the master, the Alpha and Omega in respect of impeachment of a governor or his deputy.

Said he: 'One expects all authourities in Nigeria, whatever the circumstance may be, to comply with Section 188 of the 1999 Constitution.
'But the truth is that if the House of Assembly does not fully and strictly comply with the provisions, there is nothing anybody can do about it. But we expect that they should comply with it. That is what the constitution says.

'This is because the 1999 constitution which laid down the procedure for impeaching a governor or his deputy also gave a cover in subsection 10 of its section 188 to the effect that whatever the house assembly does cannot be challenged. That is where the issue is.

'Look, I don't know what these legislators are still waiting for. All (the impeachment process) could be achieved in just a few days and it could also be achieved in a year. But there is always an underlying political circumstance to this issue and I think that is one of the reasons why the subsection 10 is even put there which places bar on the jurisdiction of the court.

'The constitution wants the house to be the master of the procedure. The legislature makes the law and the judiciary interprets. The constitution, in this case, does not want the judiciary to intervene or interfere or decide whether what has been done is either right or wrong. The constitution envisages that the house will do the right thing," he added.

But what is the procedure for the removal of a sitting governor as provided for in section 188 and 189 of the 1999 constitution?
According to Prince Adetokunboh (SAN), 'first of all, the act of removing governor or deputy governor is a constitutional procedure and the process is clearly laid down in section 188 of the 1999 constitution.

'And there is an equivalent procedure for the impeachment of the President of Nigeria in section 140 of the 1999 constitution.
'Looking through the provision of section 188, it can be summarised thus: the procedure is that the House of Assembly will determine by one third majority that the governor has done something that is considered wrong against the oath of his office or something considered as gross misconduct.
'This is done by a notice of allegation in writing signed by not less than one third of the members of the House of Assembly and presented to the Speaker of the House.

'The Speaker of the House is expected to serve the said notice of allegation on the holder of the office, as in this case, Governor DSP Alameiyeseigha, within seven days and each member of the House and also cause any statement of defence made by the holder of the office to be served on the members of the House.
'Within 14 days of the presentation of the notice to the Speaker of the House regardless of whether the holder of the office defends himself, they shall pass a resolution supported by the votes of not less than two third majority of the members of the House deciding whether or not the speaker should refer the matter to the chief judge of the state concerned for investigation.

'It is at this juncture that the chief judge of the state is mandated to empanel a seven man body, who in his opinion are people of unquestionable character, to investigate the allegation which has been made against the governor.

'The panel has maximum of three months to submit the report to the house of assembly. The panel does not send such report to the chief judge that set it up.
'The governor or the deputy governor, as the case may be, has the right to appear and defend himself before the panel. We all know that the right to appear or not to is not a right that needs be exercised. You have the right not to defend yourself too. That is if you have the right to appear before a panel to defend yourself, you also have the right not to appear. These are two co-existing rights - - rights to appear and rights not to appear.

'Whatever happens, the panel has a maximum of three months to submit the report of its investigation to the assembly and it must reach a conclusion.
'The conclusion is either that the allegation has been proven or not proven. That is the panel must establish that the governor has been found indicted, or that the allegation has been proven on one hand or that the allegation has not been proven or that he was not indicted.

'If the allegation has not been proven, that is the end of the matter. But if panel finds that the allegation is proven, then the house will consider it within 14 days and take a decision supported by its two third majority.

'If the House is able to raise it, then the panel's report is adopted and the governor or the deputy governor as the case may be, stands removed on the day and time of the adoption of the report," he said.

According to Prince Adetokunboh (SAN), the procedure of impeachment appears simple 'but it may not necessarily be, especially when the proceedings of a panel which report affects the rights of an individual.

'It must be done with much sense of justice and purpose, again judicially and if possible judiciously. 'But the big issue therein is that assuming the House does not follow the procedure, what happens? That makes subsection 10 of section 188 of the 1999 constitution relevant at this stage. The subsection provides: 'no proceedings or determination of the panel or of the House of Assembly or any other matter relating to such proceedings or determination shall be entertained or questioned in any court". 'By implication, neither the proceedings of the panel or the determination of the panel, that is the activities of the panel or the conclusion of the panel as well as the proceedings of the assembly or any matter related thereto can be questioned or entertained in any court in Nigeria.

'What this means really is that the procedure enumerated above could be short circuited and you cannot challenge it. It is just as simple as that. They can actually fast track or slow track the procedure. 'Even if the panel convoked by the state Chief Judge submits its report within 24 hours, it cannot be challenged because there is an absolute prejudice against any proceedings or determination of the panel or the house or in relation of any matter done under section 188. There is absolute prohibition.

'What am I saying? The impeachment procedure as laid down in our constitution is a double edged sword really. It is not as complicated as the drafter of the constitution thought it to be. But it could also be, depending on the underlying political environment to actually implement the provisions of section 188," he said.
'We all remember when Governor Balarabe Musa was impeached in the Second Republic.

'The allegations against him were not really of moment. They were not really weighty. It was just that there was a clear-cut political decision, a clear-cut political will to remove him from office and nothing was going to stop it and you cannot challenge the proceedings of either the panel or the House in court. 'By and large, we expect every self-respecting assembly to comply with the constitution. We expect all authourities in Nigeria, whatever the circumstance may be, to comply with section 188 of the 1999 constitution.

'But the truth is that if the house of assembly does not fully and strictly comply with the provisions, there is nothing anybody can do about it. But we expect that they should comply with it. That is what the constitution says," he added.

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