Former media aide to ex President Goodluck Jonathan, Reuben
Abati, has said that the move by the National Assembly to impeach President
Muhammadu Buhari is an impossible mission. Reuben Abati made this known in an
article titled ‘Buhari’s impeachment: Mission impossible saying that that the
1999 Constitution grants the President of Nigeria, enormous, if not excessive
powers, but the framers of our Constitution did not extend such powers to cover
indiscriminate spending of public funds, hence the combined effect of Sections
80 – 85 and S. 162 is to provide checks and balances against the possibility of
anyone no matter how highly placed spending public funds, in a manner other
than has been provided by the Constitution, no matter how well-intentioned he
or she may be. So, President Buhari is prima facie indictable in the light of
the first ground for impeachment as in Section 143(11). Reuben Abati Read Full
Article Below The Chairmen of the Committees on Public Accounts in the National
Assembly – Kingsley Chinda (House of Representatives, PDP Rivers, Obio/Akpor
Constituency) and Mathew Urhoghide (Senate, PDP Edo South) – have both had
cause to ask the respective Chambers of the National Assembly to commence
impeachment proceedings against President Muhammadu Buhari for allowing the
withdrawal of $496 million from the Excess Crude Account, without prior
approval of the National Assembly and/or appropriation. This has caused much
partisan rowdiness in the National Assembly and an aborted clash between PDP
supporters of Mathew Urhoghide and pro-Buhari APC stalwarts at the Benin
Airport in Edo State. Impeachment is a serious and sensitive political process
that could lead to the removal of the affected political leader from office.
The primary issue is whether or not President Buhari has indeed committed any
offence, any violation of the Constitution that should warrant his impeachment?
What constitutes the ground for impeachment is defined in Section 143 (2) (b)
of the 1999 Constitution as “gross misconduct” and further in Section 143 (11)
as (a) “a grave violation or breach of this Constitution”, or “a misconduct of
such nature as amounts in the opinion of the National Assembly to gross
misconduct.” The first ground for impeachment is literal and unambiguous and it
would only need to be proven. The main allegation for now is that the President
caused to be spent a sum of $496 million without the National Assembly or
appropriation. Section 80 of the Constitution dealing with “power and control”
over public funds refers. Section 80(1) establishes a Consolidated Revenue Fund
into which “all revenues or other moneys raised or received by the Federation
(not being revenues or other moneys payable under this Constitution or any Act
of the National Assembly into any other public fund of the Federation
established for a specific purpose) shall be paid into, but the more relevant
reference is Section 80(2) which states that: “No moneys shall be withdrawn
from the Consolidated Revenue Fund of the Federation except to meet expenditure
that is charged upon the fund by the Constitution or where the issue of those
moneys has been authorized by an Appropriation Act, Supplementary Appropriation
Act or an Act passed in pursuance of Section 81 of this Constitution.” In other
words, the government is not allowed by the Constitution to spend any money
that has not been duly appropriated for, or without due authorization. The
inherent and oversight role of the National Assembly is clarified in Sections
80(3), 80(4) and Section 83 (1 -2). Section 80(3) is clear enough: “No moneys
shall be withdrawn from any public fund of the Federation, other than the
Consolidated Revenue Fund of the Federation unless the issue of those moneys
has been authorised by an Act of the National Assembly.“ Section 80(4), for
sheer emphasis it seems, reiterates the same point. The operational word in all
these Sections of the Constitution is “shall” – legally, this means “a
mandatory order”. In a letter written to the National Assembly informing it of
the expenditure of $496 million, without Appropriation, without a Supplementary
Budget and without authorization, or even consultation, the President states
that he granted “anticipatory approval.” He has no such powers under this
Constitution. Nor can he seek protection under Section 82, which talks about
authorization of expenditure in the absence of an Appropriation Act as is
currently the case to wit: “If the Appropriation Bill in respect of any
financial year has not been passed into law by the beginning of the financial
year, the President may authorize the withdrawal of moneys from the
Consolidated Revenue Fund of the Federation for the purpose of meeting
expenditure necessary to carry on the services of the Government of the
Federation for a period not exceeding six months or until the coming into
operation of the Appropriation Act, whichever is the earlier…” Note this: “to
carry on the services of the Government of the Federation…” Is the purchase of
12 aircraft part of the “services of government?”. We can argue over this but
given a literal interpretation, the President is clearly in violation of the
Constitution. Such authorization should be in respect of services already
before the National Assembly. In the absence of this, the President should have
consulted the National assembly and sought their understanding, and buy-in,
before spending the money. Writing a letter after ignoring them and the
Constitution is an afterthought that beggars the question. The President is
also in violation of the proviso to Section 82 in the sense that the purchase
of the aircraft is not contained in the 2018 Appropriation Bill. Since it is
not there and the Appropriation Bill has not been passed, the President has no
basis to say that he has spent money. Can the President spend money in the
event of an emergency? Section 83 of the 1999 Constitution addresses this – he
can but only with the authorization of the National Assembly as in s. (83(1)
and through the vehicle of a “Supplementary Estimate and a Supplementary
Appropriation Bill as in s. (83(2).” I have argued previously that the 1999
Constitution grants the President of Nigeria, enormous, if not excessive
powers, but the framers of our Constitution did not extend such powers to cover
indiscriminate spending of public funds, hence the combined effect of Sections
80 – 85 and S. 162 is to provide checks and balances against the possibility of
anyone no matter how highly placed spending public funds, in a manner other
than has been provided by the Constitution, no matter how well-intentioned he
or she may be. So, President Buhari is prima facie indictable in the light of
the first ground for impeachment as in Section 143(11). The second ground is a
bit nebulous, for it speaks of whatever amounts to “gross misconduct” – “in the
opinion of the National Assembly.” Virtually every Nigerian has an opinion, and
where the opposition dominates the National Assembly, such an Assembly can form
any opinion and remove a sitting President. My own opinion in this instance
however, is that there are strong grounds even on this second score for
commencing impeachment proceedings against President Buhari. These include and
are not limited to: his government’s routine violation and complete disregard
for court order and the rule of law, human rights abuses, and his regular
de-marketing of the country and Nigerians in the international community, and
his apparent lack of ability to provide strategic leadership. But the reality
is that the National Assembly as presently constituted is dominated by the
ruling All Progressives Congress (APC). Nigeria’s democracy has not yet reached
a level where the legislature will choose to act on a non-partisan basis. The
APC may be four, five parties in one, and may be imploding but I do not see the
possibility of a ruling party in Nigeria impeaching its own President. To
return to the first ground of impeachment, which stands more on terra firma,
and not “opinion”, I also do not see the possibility of impeachment of either
the incumbent President or any other President under the 1999 Constitution. The
National Assembly has set up a Committee to consider the possibility of the
commencement of impeachment proceedings – it submits its report tomorrow,
Wednesday, May 2 – and there may well be some persons losing sleep over that in
Buhari’s quarters, but there is actually no cause for alarm. The framers of
Section 143 (1-11) of the 1999 Constitution did not really hope that any
sitting Nigerian President will ever be impeached. The rules and procedure set
out under that relevant Section are so cumbersome and tedious as to make
impeachment impossible. The last time anyone tried to invoke Section 143 was
under President Olusegun Obasanjo in 2002 – notice of allegations were served
on the then President by the House of Representatives to which he responded –
but in the end nothing happened. Nothing will again happen to Buhari this time
around. He will not be impeached because the relevant Constitutional provisions
in Section 143 are too windy. One, an impeachment process is initiated when “a
notice of allegation” is presented to the President of the Senate by “not less
than one-third of the members of the National Assembly” accusing the office of
the President or Vice President of “gross misconduct (s. 80 (2).” As at the
time of this writing, no such notice has been presented. One-third of the
entire Assembly (!) – that’s like wishful thinking. Section 143 (4) again
presents this dilemma of numbers when it says, if the National Assembly decides
to investigate the allegations, it can only do so if it is supported by “not
less than two-thirds majority of all the members of each House of the National
Assembly.” By the time we get to this stage, 21 days would have passed, and
that is part of the problem with the rules of procedure on impeachment in
Section 143. It would take at least six months or more for any Nigerian
President to be impeached. The giver of the law created a problem here with
numbers and also with time, and a bigger problem with the introduction of the
judiciary into what should be purely a political process. In Section 140 (5),
the judiciary is brought into the conflict, ensuring a possible clash among all
three arms of government in the impeachment process. The Chief of Justice of
Nigeria (CJN) is given additional seven days (28 days now in total) to “at the
request of the President of the Senate 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.” Section 143 is thus loaded, from 1-11, with so many
make or kill, elimination tests, and this is perhaps the most critical. Can we
really rely on the opinion of the CJN to select seven apolitical, non-partisan
persons of “unquestionable integrity?” Where are those seven persons coming
from? Heaven?, because no such persons exist in Nigeria. And should such seven
persons be identified, there is nothing in this section barring interested
parties or the Executive, and its agents from discrediting such persons. How
many “unquestionable” Nigerians would even agree to serve on such a panel, if
at all they exist? Assuming a panel of seven emerges, the person to be
impeached still has the right to be defended by legal practitioners of his
choice. Thus Section 143 (6) is in pari materia with Section 36 of the
Constitution which guarantees the right to fair hearing, but it is another
bottle-neck which can go on for three months – (section 143(7) – or much longer
by the time the lawyers exploit technicalities to prolong the proceedings.
Section 143(7) (b) further presents a serious bottle-neck: the constituted
panel must report its findings to each House of the National Assembly within
three months of its appointment. Section 143(8) says if the allegations are not
proven, then the process stands aborted, but in the event of either this or the
opposite addressed in Section 143(9), the Constitution only asks for two-thirds
majority to determine the fate of the affected political office holder, it says
nothing about the procedure for removal, now mentioned for the first time as a
consequential effect. To the best of our knowledge, the National Assembly does
not even have such a procedure in place, except it will create an emergency one,
because the full import of Section 143 has not yet been tested. Being a
political process, stricto senso, the Courts are further estopped under Section
143(11) from inquiring into an impeachment process. Section 143 of the 1999 is
in our view, therefore, a jurisprudential nightmare. If we really want to
prevent our Presidents from hiding under the Constitution to become tyrants,
this particular section of the Constitution needs to be reviewed. The National
Assembly should put in place standard rules and procedures to give live to the
process in the need of activation of Section 143. The judiciary should also be
removed from the process, as is the case in the United States. A compromised
CJN would readily frustrate the process since his “opinion” is so important!
Section 143 makes it difficult as it is, to remove a President, especially
given our situation where there is so much emphasis on money-politics,
political affiliation, ethnicity, religion and loyalty to the President and
primordial sentiments. Some characters called elder statesmen and traditional
rulers may even intervene to derail the impeachment process. The quality of
legislators is also important: to protect and uphold the Constitution, we need
people who understand that loyalty to the nation is more important than loyalty
to the President or religious and ethnic sentiments. The present set of
dancing, sleeping, singing, fibbing, cradle-snatching, compromised persons who
end up in the National Assembly cannot do it. The worst that they can do is to
further damage President Muhammadu Buhari’s reputation. Mere talk about or the
commencement of impeachment proceedings on its own, has negative political
consequences, especially in an election season – even US President Bill Clinton
did not fully recover from it although he was impeached but was not removed
from office. The view has been expressed that the National Assembly should not
bother to test Section 143 because this may have implications for the stability
of the country in an election season, or that, well, President Buhari is almost
completing his first term. I disagree. The responsibility to protect and uphold
the Constitution must not be sacrificed on the altar of political expediency,
even if all things considered, President Buhari needs not lose any sleep.
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