Impeachments and the constitution
By Chris Akiri
The news of the purported removal of the Vice-President of the Federal Republic of Nigeria by the Presidency on the advice of the ruling party, the People's Democratic Party (PDP), should rankle in the mind of anyone with a nodding acquaintance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, which our rulers upon assumption of office swore to "preserve, protect and defend". Under the rule of law, it is trite that whatever is officially done must be done in accordance with law, and, according to Albert Venn Dicey, "a man may with us be punished for a breach of the law but he can be punished for nothing else."
The dismissal of the Vice-President, Alhaji Atiku Abubakar and Orji Uzor Kalu, Governor of Abia state from the PDP by the PDP, may be tenable, but their "removal" as vice president and as governor has no basis in law - any law, in Nigeria.
Announcing the vice president's and the Governor's "removal" from office, the PDP stated that the two office holders had breached the provisions of section 142(2) of the 1999 Constitution when they decamped, respectively, to the Action Congress (AC) and to the Progressive Peoples Alliance (PPA), whose presidential and governorship tickets they picked up on Wednesday, December 27, 2006.
With respect, subsection (2) of section 142 of the 1999 Constitution says nothing about either the President or the Vice-President decamping to another political party. Subsection (1) of that section merely requires a candidate for an election to the office of president to nominate another candidate from the same political party as his running mate. Neither the elected
President nor the vice-president is forbidden by that subsection to decamp to another political party. Subsection (2) of section 142 provides that the provisions of Part 1 of Chapter VI of the 1999 Constitution relating to qualification for election (section 131), tenure of office (section135), disqualifications (section 137), declaration of assets and liabilities (section 140) and oaths of President (Seventh Schedule) shall apply in relation to the office of vice-president as though references to President were references to Vice-President.
It is pertinent to state that none of those sections forbids either the President or the vice-president to decamp from his original political party to another one, unlike the provisions of sections 68 (1) (2) and 109 (1) (2) of the Constitution, which, subject to the provisos thereto, forbid a lawmaker in either the National Assembly or in a State House of Assembly to become a member of another political party before the expiry of the period for which that House was elected. It would be instructive to note that the marginal notes to those sections, which are, however, not necessarily crucial to the construction of the provisions thereof, are "Tenure of seat of members." Neither the President nor the Vice-President is subject to the rule requiring a lawmaker at both national and state levels to hang on to the political parties by which they were sponsored until the lapse of the period for which the respective House was elected. Otherwise, section 142 or any other section of the Constitution, such as 135, whose marginal note is also "Tenure of office of President", would have said so.
Section 135 of the Constitution, on the Tenure of the President, which, according to section 142 (2) applies with equal force to the Vice-President, delineates the circumstances under which either of those two office-holders shall cease to hold office. The circumstances include: "135 (1) (a) when his successor takes the oath of that office; (b) he dies whilst holding that office; or (c) the date when his resignation from office takes effect; or (d) he otherwise ceases to hold office in accordance with the provisions of the constitution...." This section is on all fours with the provisions of section180 of the Constitution, with regard to the tenure of office of governor.
Paragraph (d) of subsection (1) of section 135 cited above refers to a situation in which the president or vice-president is removed from office by way of impeachment under section 143(1)-(11) of the Constitution. The provisions of that section (on the removal President or
Vice-president) are in pari materia with those of section 188 (1)-(11) (on the removal of

Governor or deputy governor.
The impeachment of a President or Vice-President, Governor or Deputy Governor, is the ineluctable preserve of the National Assembly or of a State House of Assembly, as the case may be. There is no zone of twilight in which the President and/or the ruling party, on the one hand, and parliament, on the other hand, possess concurrent authority or powers to remove either the vice-president, governor or deputy governor. Section 137 of the Constitution (on disqualifications of President and Vice-President) agrees in all respects with section 182 (on disqualifications of Governor or Deputy Governor), which provides that a person shall not be qualified for election to the office of President (or Vice-President) if - "(b) he has been elected to such office at any two previous elections; or (c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or (d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine...(e) within a period of less than 10 years before the date of election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or if he is an undischarged bankrupt...etc.
A cursory look at section 142 (1) (2) or section 187 (1) (2) of the Constitution, the shaky trellis on which the Presidency and the PDP hang their actions against Vice-President Atiku Abubakar and Governor Orji Uzor Kalu, would reveal the absence of any provision prohibiting either the President or the Vice-President, the Governor or the Deputy Governor, from crossing from one political party to the other. The Constitution is not a timorous document. For now, it is the grundnorm of the Nigerian legal system, the equivalent of the exceptio doli in Roman Law, the exceptio of all exceptiones, the basic norm, or the ultimate premise of the whole system, beyond which we cannot go. If its draughtsmen wanted to say in section 142 (as they have said in sections 68 and 109 for lawmakers) that a President or vice-president, governor or deputy governor shall forfeit his/her office if he/she becomes a member of another political party before the expiration of the period for which he/she was elected, they would have said so, expressly! Fortunately or unfortunately, no one is allowed to smuggle anything into the Constitution.
It is notorious that nobody should be sanctioned under a law which prescribes no penalty for its breach. If, according to the PDP and the Presidency, section 142 (2) of the Constitution prohibits the Vice-President from becoming a member of another political party before the expiry of the period for which he was elected, what is the penalty for its breach?
Article 6 of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act (Cap.10, Laws of the Federation of Nigeria, 1990) provides, in part, that "no one may be deprived of his freedom except for the reasons and conditions previously laid down by law." Section 36(12) of the 1999 Constitution provides that a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law (Also see Aoko v. Fagbemi & anor. (1961)ALL NLR, 400, and Ndokwu v. Onugha & anor. 7 ENLR, both of which were decided on the provisions of the 1960 Constitution, corresponding to the provisions of section 36 (12) of the 1999 Constitution, which empower neither the President nor even the National or State Houses of Assembly to declare the office of the vice-president or of a state governor vacant without going through the processes charted in sections 143 and 188 of the Constitution.
In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about how a President,
Vice-president, governor or deputy governor, may be removed from office. The Constitution of the Federal Republic of Nigeria, 1999, be it noted, is not similar to, let alone identical with, the Constitution of South Africa, which empowers the South African President, with or without the collaboration of the African National Congress (ANC), the ruling party in South Africa, to turn the Vice-President adrift at his own whims and caprices.
Verbum sat sapienti est.
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