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Thursday, 17 July 2014

WHY THE IMPEACHMENT OF MURTALA HAMMAN YERO NYAKO CANNOT STAND


 The gales of impeachment of State Governors in the country have started in earnest with the impeachment of the Governor of Adamawa State, Murtala Hamman Yero Nyako on Tuesday the 16th July, 2014, by the Adamawa State House of Assembly. The Speaker of the Adamawa State House of Assembly, Ahmadu Fintiri was quickly sworn in as the Acting Governor of Adamawa State after the Deputy Governor, Bala James Ngilari, purportedly submitted his ‘Letter of Resignation’ to the Speaker of the Adamawa State House of Assembly shortly before the resolution of the House was passed.
The Resolution impeaching Governor Nyako was passed after the adoption of the Report of the Panel constituted by the Acting Chief Judge of Adamawa State to investigate allegations levelled against Murtala Nyako and Deputy Governor, Bala James Ngilari, in the Notice of Impeachment that was never served on him in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Soon after Murtala Nyako was impeached, it was reported that the Nassarawa State House of Assembly has resolved to serve a Notice of Impeachment on the Governor of Nassarawa State, Umaru Tanko El-Makura, on allegations bordering on breaching the Constitution. There is rumour swirling that there are moves to impeach the Governors of Edo and Rivers States.
It seems that impeachment of Governors in the opposition is the new found weapon by the Peoples Democratic Party with the strong backing of the Presidency to bring the opposition down to its knees in anticipation of the 2015 General Election!
Impeachment of a Governor of a State is provided by Section 188 of the Constitution of the Federal Republic of Nigeria (supra). It is pertinent to reproduce Section 188 of the Constitution for the purpose of clarity and emphasise thus:
“The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section.
(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly -
(a) is presented to the Speaker of the House of Assembly of the State;
(b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.
(3) Within fourteen days of the presentation of the notice to the Speaker of the House of Assembly (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice), the House of Assembly shall resolve by motion, without any debate whether or not the allega_tion shall be investigated.
(4) A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly.
(5) Within seven days of the passing of a motion under the foregoing provisions of this section, the Chief Judge of the State shall at the request of the Speaker of the House of Assembly, appoint a Panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section.
(6) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person or be represented before the Panel by a Legal Practitioner of his own choice.
(7) A Panel appointed under this section shall -
(a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly; and
(b) within three months of its appointment, report its findings to the House of Assembly.
(8) Where the report of the Panel is that the allegation of House of Assembly has not been proved, no further proceedings shall be taken in respect of the matter.
(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then 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 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.
(10) 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.
(11) In this section -
"gross misconduct" means a grave violation or breach of the provisions of this Constitu_tion or a misconduct of such nature as amounts in the opinion in the House of Assembly to gross misconduct”.
Ordinarily the Judiciary is not entitled to interfere with the internal business of the legislature by virtue of the principles of separation of powers enshrined in the Constitution. Each branch of government is required to restrict itself to its sphere of authority or jurisdiction assigned to it in the Constitution. This is why Section 188 (10) of the Constitution boldly ousts the jurisdiction of the Court to interfere with impeachment proceedings initiated by a House of Assembly against a Governor.
However, if the procedure lay down by Section 188 of the Constitution is not strictly adhered to by the House of Assembly in carrying out the impeachment of the Governor; the Court can question such proceedings despite the fact that the jurisdiction of the Court has been ousted in anything relating to the impeachment of a Governor.
So it follows that the House of Assembly in carrying out its power must ensure that the procedure outlined in Section 188 of the Constitution is followed procedurally and to the letter.
In the case of Murtala Nyako, after the Adamawa State House of Assembly resolved that a Notice of Impeachment be served on Murtala Nyako, service of the Notice on Murtala Nyako became difficult. It was clear that Murtala Nyako elected to evade service. He quickly dashed out of Yola for Abuja. The gate of the Government House, Yola was locked. As a result service of the Notice on Murtala Nyako was frustrated.
The Adamawa State House of Assembly decided to file a Motion in the High Court, Yola, seeking for leave to serve the Notice of Impeachment on Murtala Nyako by substituted method by way of placement of advertisement in the newspaper. However, the Adamawa House of Assembly ran into a brick wall, after the High Court refused the Motion and dismissed it.
It is worthy to note that the House of Assembly did not file an appeal against the Order of the High Court dismissing its Motion for substituted service of the Notice of Impeachment on Murtala Nyako.
Despite the fact that the High Court had dismissed the Motion for substituted service of the Notice on Murtala Nyako, the Adamawa State House of Assembly resolved to direct the Clerk of the Assembly to advertise the Notice in the newspaper without leave of the Court.
Since there was no proper service of the Notice of Impeachment on Murtala Nyako he elected to ignore the Notice published in some newspapers in the Country. Murtala Nyako did not answer any of the sundry allegations contained in the Notice made against him.
The House of Assembly in reaction to the failure of Murtala Nyako to reply to the Notice of Impeachment met and passed a Resolution directing the Acting Chief Judge of Adamawa State to constitute a Panel of Seven eminent people of proven integrity to investigate the allegations contained in the Notice of Impeachment.
After some spirited efforts to prevent the Acting Chief Judge were brushed aside, the Panel was constituted. The Panel issued summons on Murtala Nyako and the Deputy Governor, Bala Ngilari, to appear before it. However both, Murtala Nyako and Deputy Governor, Ngilari, ignored the Panel and refused to appear before it to answer to the allegations against them.
The Panel expeditious concluded its assignment and submitted a Report to the House of Assembly. On the 16th July, 2014, the House of Assembly met amidst heavy presence of Armed Policemen and Soldiers and resolved to impeach Murtala Nyako.
It was purported that the Deputy Governor, Ngilari, submitted his Letter of Resignation to the Speaker of the House of Assembly shortly before the Resolution removing Nyako was passed.
From the above, it is clear that the impeachment of Murtala Nyako is tainted with glaring and apparent breaches of the procedure laid down in Section 188 (1) of the Constitution. In the first place, Murtala Nyako was not heard before he was impeached. The Notice of Impeachment was not properly served.
It is clear that Section 188 (2) (b) of the Constitution envisages that the Governor must be served with the Notice of Impeachment personally.
The purported advertisement of the Notice in the media by the Clerk of the House of Assembly without leave of the Court is invalid and of no consequence.
In the instance case Murtala Nyako was not personally served with the Notice.
The essence of service of the Notice is that the Governor whose conduct is being questioned must be given a fair hearing. He must be afforded the opportunity of being heard in compliance with the provisions of Section 36 of the Constitution that guaranteed the right of fair hearing.
The right of fair hearing is sacrosanct and inviolable. Anything done in violation of the right of fair hearing cannot stand. It is invalid and liable to be set aside.
Even God gave Adam a fair hearing despite the overwhelming evidence that Adam ate the fruit from the forbidden tree. God asked: “Adam where art thou?” and when Adam replied that he hid himself because he was naked, God further asked: “Who told thee that thou wast naked? Has thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?” Genesis 3: 9 - 11
Murtala Nyako was on the right side of the law when he refused to honour the advert of the Notice placed in the media.
The Supreme Court of Nigeria in performance of its constitutionally assigned role of being the bulwark against the abuse of civil rights and contravention of due process had set aside the impeachment of three Governors since the inception of democratic civil rule in the Country, Which is a precedent to the fact that any impeachment of a Governor, in contravention with the procedure spelt out by Section 188 of the Constitution (as amended) will be set aside, if challenged.
One would have thought that the Adamawa State House of Assembly would be guided by the judgments of the Supreme Court in these three cases.
In DAPIANLONG V DARIYE (2007) 8 NWLR (Pt. 1036) 289, the Supreme Court set aside the impeachment of the then Governor of Plateau State, Joshua Chibi Dariye on the ground that Section 188 (4) of the Constitution that stipulates that a motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly was not followed. Only 8 members of the Plateau State House of Assembly carried out the impeachment instead of 16 out of the 24 members in the House.
The Supreme Court admonished that despite the grave and despicable allegations levelled against Joshua Dariye due process must be followed. Pius Olayiwole Aderemi, JSC (as he then was) illuminated thus:
“I shall end this discourse by saying that the allegations levelled against the 1st respondent as contained in the records, are despicable to the highest degree. If proved in accordance with the laws, of our land; by the cardinal principle of morality, justice and democratic government that an offender guilty of crime should be sentenced by the court to such penalty as his crime merits, the lst respondent must not be allowed to run away from justice. But before this can be done, due process of law must be followed from the beginning to the end. An act may be morally reprehensible unless there is a law properly enacted which makes that act punishable and goes ahead to prescribe the punishment for it, a judge, indeed, any court of law is hamstrung to sentence and punish the perpetrator”.
Again in Hon. Muyiwa Inakolu vs. Senator Rashidi Adewolu Ladoja (SC.272/2006) decided by the Supreme Court on the 12th January 2007, the impeachment of then Governor of Oyo State, Senator Rashidi Adewolu Ladoja by the Oyo State House of Assembly was set aside by the Supreme Court because On 22nd December, 2005, without following the laid down rules, regulations and the Constitution of the Federal Republic or Nigeria, the Appellants purportedly passed a motion calling for the investigation of the allegations of misconduct against Senator Ladoja without the concurrent consent and approval of the two-thirds majority of the 32 member House of Assembly. The purported notice of allegations of misconduct against the Governor was not served on each member of the House of Assembly.
All men of good will must be worried by the culture of impunity that is being institutionalised in Nigeria. We must not afford to bury our heads in the ground like the ostrich and pretend that all is well because we are not involved or affected. After Hitler seized power in Germany, he set on his opponents and decimated them. Hitler became emboldened and he descended ruthlessly and mercilessly on the Jews and reduced the once prosperous and thriving Jewish Community to nothingness. Thereafter Hitler took on the world and unleashed a catastrophic World War and horror never seen in the history of mankind.
I am not advocating that Murtala Nyako should not be impeached. Nyako should be impeached if found guilty of corruption and recklessly governing his State but due process and the Constitution must be respected at all times no matter the temptation.


Okoi Obono-Obla

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