Buhari’s impeachment: Mission impossible

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By Reuben Abati

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“No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by the Constitution or where the issue of those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.