The Threat of Impeachment
Postscript by Waziri Adio
Before embarking on a seven-week annual recess, some members of the National Assembly created a stir by dangling the impeachment axe over President Muhammadu Buhari’s head. This has created a media feeding frenzy. Both sides, and their sympathisers, are busy making the case for and against impeachment, and playing the number game.
Let’s cut to the chase: impeaching President Buhari will be difficult, not because the legislators may not be able to establish a legal claim for it but because impeaching a president is a complicated and fraught political process, especially in a divided polity such as ours. That however is not the point. The president needs to get the message: the parliamentarians echo the frustration and fears of most Nigerians about the lingering and worsening insecurity in the land.
The most important part of the job the president signed up for is to secure Nigerians and their properties. As the merchants of terror get more emboldened, fewer and fewer of even the most optimistic of Nigerians think the president is doing enough to protect them, or that whatever he and his security team are doing is working enough. So, this is not about whether the legislators will go forward with their threat or not, or about whether or not they can muster the required number to remove him from office.
The focus should be about the need for the president to do much more to reassert the power of the state, to take the battle to and rout those waging war against Nigeria and Nigerians wherever they reside and by whatever names they are called or whatever their pretexts are. Nigerians want to see concrete actions and results—not vacuous threats, not endless promises, and definitely not episodic meetings with security chiefs strutting about in well-pressed fatigues and with fancy walking sticks.
Whatever the Commander-in-Chief needs to do, he should do. All Nigerians want is to be safe and to feel safe in their homes, in their farms and offices, on the roads and anywhere else in their country. That is not too much to ask for. Securing life and property remains the main justification for the existence of government, and the foundation on which every other thing rests, and the most basic expectation of citizens.
That said, it must be noted that impeaching a president is not meant to be a walk in the park. The Americans who invented the presidential system of government wanted a strong and effective leader who can take swift and consequential actions. But knowing how absolute power corrupts and having been victims of dictatorships, America’s founding fathers erected strong measures to keep the occupiers of that exalted office in check. They created the equivalent of a democratic monarch.
Apart from other forms of checks and balances that have now become distinguishing features of the presidential system of government, they also provided for the removal of a president before the expiration of his term of office for violation of his oath of office or abuse of powers. But they were also mindful of how destabilising impeachment can be or how easily it could become a political tool. They therefore deliberately made it a very difficult endeavour.
In more than two hundred years since George Washington took the oath of office as the first president of the United States of America in 1789, only four American presidents have faced formal impeachment charges and none of them got removed from office through this process. While only a simple majority is required to pass the articles of impeachment in the House of Representatives, a two-thirds majority is required at the impeachment trial in the Senate to remove the president from office.
Of the four, Richard Nixon resigned as president in 1974 in the wake of the Watergate Scandal before the articles of impeachment were considered in the House. The three others were impeached by the House but not removed by the Senate and thus remained in office. These were Andrew Johnson who was saved by only one vote in 1868; Bill Clinton in 1998; and Donald Trump who was impeached twice (2019 and 2021) by the House within one term of office. In a country polarised along party lines, getting two-thirds of votes in the Senate to impeach a US president is almost impossible.
Impeaching a president is even more difficult in Nigeria which borrowed the presidential system from the US in 1979. Section 143 of the 1999 Constitution lays out a five-step process for impeaching a president for gross misconduct. That process will take between five to six months. Section 143 (11) defines gross misconduct as a grave violation or breach of the constitution or whatever the legislators think constitutes gross misconduct. Section 143 (10) says the proceedings cannot be questioned or entertained in court. The constitution thus grants the legislators wide latitude on impeachment of the president or the vice president.
But this latitude is constrained by the same constitution and in ways more stringent than in the US. The first and easiest step is for a notice of allegations against the president to be submitted in writing to the President of the Senate, detailing the infractions and signed by at least a third of the members of the National Assembly. The notice of allegations (which is yet to be submitted) needs the signatures of 155 of the 469 members of the National Assembly. This is do-able. But it gets more complicated after this stage.
The notice will be shared with the president within seven days and his response, if any, will be shared with all members of the National Assembly. The second stage is, within 14 days of the notice of allegations, for each of the two houses to pass a motion to investigate the allegations. That motion must be passed with two-thirds majority. This means 73 senators in the Senate and 240 members of the House of Representatives must vote in support of the investigation.
The third stage is for the Chief Justice of Nigeria (CJN) to, within seven days of the motion to investigate the allegations and at the instance of the President of the Senate, constitute a panel of seven people to investigate the allegations. Members of the panel must, in the opinion of the CJN, be of unquestionable integrity, and must not be members of any legislative house, civil service or political party. The fourth stage is for the panel to sit and investigate the allegations, and give the president the opportunity to defend himself personally or through his counsels. The panel has three months to conclude its assignment and submit its report.
If the panel finds the president guilty, then the process proceeds to the fifth stage. Within 14 days of the receipt of the panel’s report, each of the two houses shall consider the report and will need to pass a resolution to impeach the president supported by at least two-thirds of its members to impeach the president. This means that when at least 73 senators and 240 representatives vote in each of the houses in support of the resolution for impeachment, the president stands impeached.
There are many reasons why this will be difficult to see through. At two critical stages (passing a motion to investigate the allegations and passing a resolution on the report of the panel), all the president needs to do to get off the hook is to secure a third of the votes plus one in at least one of the houses. This means all he needs in each of these two critical stages is for either 37 senators or 121 representatives to vote against his impeachment.
With the enormous powers and resources at the disposal of the president of a developing country, it is inconceivable that President Buhari will not get either of this in a long-drawn process. Unlike those moving for impeachment, the president doesn’t need to do much. All he needs is to frustrate the move in one of the two chambers with a third plus one vote. Anytime a super-majority is needed in a bicameral legislature to get through an action, the onus disproportionately rests on the protagonists.
The All Progressives Congress (APC) currently has 66 senators and 209 representatives in the National Assembly. True, some of them (especially some of those who lost return tickets) may join up with their opposition colleagues. But before long, the proposed impeachment will acquire partisan hues, irrespective of numbers being touted. And only a bit longer, sectional dimensions will creep in. A successful impeachment assumes a utopian blurring of all partisan and sectional lines in a country with extensive fault-lines.
The only other president who has been threatened with impeachment since Nigeria embraced the presidential system is Chief Olusegun Obasanjo. In 2002, the House of Representatives issued him a two-week ultimatum and said it was collecting signatures. But the notice of allegations with the required signatures was never served, and thus the process never took off. Even then, the 2002 impeachment threat generated a lot of heat, though Obasanjo initially had described it as a joke taken too far. The impeachment move originated from his own party, the Peoples Democratic Party (PDP), but it put the unsavoury dimension of Nigeria’s ethno-regional cleavages in full view.
Already there are insinuations in some quarters that the opposition parties are dangling the impeachment axe to weaken the ruling party ahead of the 2023 polls. Such insinuations are unlikely to disappear, and may harden party and regional divisions.
This notwithstanding, there are many Nigerians who have had it up to the neck with President Buhari to the extent that they don’t think he should stay a day longer on the seat. While their disposition may be understandable, it is also important to bear in mind that the long and difficult impeachment process can create a distraction for insecurity to fester. Such a drawn process also induces a climate of uncertainty.
Most important, a successful impeachment presents a possible political crisis given the delicate distribution of power in the country. Even when the constitution is clear about who replaces the president if he is impeached alone or with his vice, the interpretation of such a move and the potential beneficiary and expected contestation by those for and against makes impeachment a politically combustible one. Don’t rule out the suggestion that the two potential replacements can be accused of plotting to become president through the back door and don’t under-estimate the political tension such can generate. Nigeria cannot afford to layer a security challenge with a political crisis. Not at this time.
By the time the National Assembly resumes from its recess in late September, it will be just five months to the general election and eight months to the end of the Buhari administration. Devoting five to six out of those precious months to an indeterminate, uncertainty-laden and politically-charged endeavour may not be the best use of time and resources. Nigeria will be better served with strongly holding the president accountable, giving him all the necessary support to roll back the attacks on Nigeria, and ensuring an orderly transition.
And rather than luxuriating in the near impossibility of kicking him out of office through impeachment because the political arithmetic favours him, President Buhari should take the threat and the support it enjoys in a sizeable section of the populace as a last wake-up call. He will be better served by sitting up and redeeming, in the little space left, the promise he made and the constitutional duty he has to protect Nigerians and defend the territorial integrity of Nigeria. Time is desperately running out on him.