Trump's Impeachment: The US and Nigerian Legal Interpretations
By Ebi Robert Esq.
Following the pronouncement of impeachment against the President of the United States of America, Donald Trump, many social media commenters flooded their social media timelines, lamenting the removal of Trump. It took the intervention and explanation of some advocates, before some were able to understand that the President is not yet removed. The explanations, however, have prompted many to ask what the difference between both concepts mean, IMPEACHMENT AND REMOVAL.
This piece is aimed at discussing the difference between the two, using the Nigerian Constitution and that of the United States as examples. Also to be clarified is the fact that impeachment is unknown to the Nigerian Law, even though mentioned – and that while impeachment is recognized in the US law, it does not mean "removal".
Google online Dictionary has defined impeachment as the action of calling into question the integrity or validity of something. Impeachment also means A CHARGE against a public officer of an offence or wrong committed. It means a legislative process of charging a public officer. Thus, to be impeached simply connotes "to be formally indicted".
Under the US Constitution, the power to impeach or indict the president is vested on the US House of Representatives. Accordingly, Article I, Section 2, Clause 5 provides among others that, the House of Representatives shall have the sole Power of Impeachment.
Article I, Section 3, Clauses 6 and 7 of the Constitution further provides that the Senate shall have the sole power to try all impeachments, and that when sitting for that purpose they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two-third of the members present.
Judgment in Cases of Impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to Law, it was affirmed.
The following requires certain procedures which can be summarized thus:
1. The House of Representatives is notified of an allegation of a somewhat alleged commission of wrong or offence.
2. The House considers it, and votes on a Resolution directing the House Judicial Committee to begin Impeachment inquiry.
3. The Committee investigates and then drafts articles of impeachment.
4. The House of Representatives debates on same and cast their votes. For the President to be impeached, the votes must meet a simple majority. If not, he is not impeached.
Impeachment does not mean REMOVAL, as the President must then appear before a JURY for trial. The US Senate makes up the JURY. The trial is presided over by the Chief Justice of the United State. Like a normal trial, the US President is permitted to defend himself or get a Defence Attorney to do same. The JURY must cast votes on 2/3 majority on the conviction if any, else, he stands un-removed.
By the above explanation we can see that impeachment is not the same as removal under the US law. So the, what about the Nigerian Law?
UNDER THE NIGERIAN LAW:
Simply put, there is nothing like impeachment under the Nigerian Law, so far as the removal of the President is concerned. This position was made clear in the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, where the court held thus:
“Section 188(1) and (2) does not provide for the word “impeachment”. The appropriate word is REMOVAL, although section 188(1) contains the verb “removed”. In the circumstances, the first relief should have used the word “Removal” in the place of “impeachment”.
Niki Tobi, J.S.C. of blessed memory also added thus:
"Section 188 covers both civil and criminal conduct. I am not saying that the definition vindicates the totality of the impeachment provision of the United States Constitution. It is my view that the word should not be used as a substitute to the removal provisions of section 188. We should call spade its correct name of spade and not a machete because it is not one. The analogy here is that we should call the section 188 procedure one for the removal of Governor or Deputy Governor, not of impeachment."
Section 188 and 143 which deals with the removal of the President and Governor as the case may be does not provide for impeachment but removal. Section 191 (1) (3) (a) and Section 146 (1) (3) (a) of the 1999 Constitution of Nigeria as amended, provide for where the Deputy Governor and the Vice President can hold office in cases of vacancy of the office of the Governor and Presidency respectively. The word, “impeachment” though stated in the said provision, it is the writer’s opinion that the use of the word, or its inclusion was an error on the part of the drafters of the constitution. This is because “impeachment” was not used in place of REMOVAL; rather, “impeachment” was listed as one of the cases in which the said offices can become vacant just as REMOVAL was listed as well. In order words, both words were not used interchangeably, but independently. Assuming that impeachment was mentioned, without the word “removal” included in the list, it would have been reasonably argued that the one was used in place of the other within the context, but this was not the case with the provision. So, it was an error, simpliciter. The Inakoju’s case still comes to mind and, thus, instructive in this regard.
To reiterate, Section 188 and 143 which deals with the removal of the President and Governor as the case may be does not provide for impeachment but removal. To clarify this better, below is the summary of the Nigerian process.
1. The National Assembly signs a Notice of allegation in writing. Not less than one-third of members of the National Assembly sign.
2. The Notice containing the particulars of the allegation shall be presented to the President of the Senate.
3. Within seven days, a copy of the notice is forwarded to the President. If the President replies, the reply is given to members.
4. Within seven days of Senate President receiving the notice, each House of the National Assembly shall resolve whether or not the allegation shall be investigated. Note, there is no debate at this point. The motion must be passed by two-third majority.
5. Then the Senate President shall ask the Chief Justice of Nigeria to appoint a Seven-man panel to investigate the allegation. This is like a trial because the President has to defend himself. A legal practitioner of his choice will defend him.
6. Within three months, the panel shall report its finding to the National Assembly.
7. If the allegation is proved. That's the end. If not, then within fourteen days of the receipt of the report, a resolution of two-third majority of each of the house is required for the President to the removed.
Note that the findings of the panel are final, and cannot be appealed to any court of law. Unlike the US, both houses are involved from the beginning.
Conclusively, impeachment proceedings in not recognized in the Nigerian Law; it is removal. In the US, however, impeachment is not same as removal.