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Law and politics of impeachment (2)

By Mohammed Adamu

IMPEACHMENT in a ‘presidential system’ is the equivalence of a ‘no-confidence vote’ in a ‘parliamentary one. In the U.S., it is initiated by the ‘House’ and closed with a conviction vote, by the ‘Senate’. In the UK it is commenced by the ‘Commons’, and via a trial sealed by the House of Lords. And whereas the Americans borrowed the concept from the British, the latter, has since moved on, retaining ‘impeachment’ more as a ‘keep-sake relic than as a remedial living law. Said ‘Black’s Law Dictionary’, “no case (of impeachment) has arisen (in UK) since 1801, and many British scholars (now) consider impeachment obsolete”.

But the measure remains still, an albatross of the ‘presidential system’, looming always, like the Sword of Damocles, especially in the U.S. And this is in spite of the fact that, other than serving as a scarecrow, of  the only 3 times it was activated even in the U.S., twice its targets -Andrew Johnson and Bill Clinton- escaped unscathed. Plus, the third Richard Nixon, burdened by the weight of guilt, had in fact voluntarily resigned even before the impeachment sword unsheathed.

The U.S. Constitution says the President can be removed from office for “Treason”, “Bribery or other high Crimes and Misdemeanors”. Meaning on grounds of ‘serious’, ‘major’ or even ‘minor’ offences – ‘misdemeanors’ being ‘minor’ wrongs like ‘libel’ or ‘assault’, which are ‘less serious’ than ‘felonies’. And ‘felonies’ which are ‘serious’ crimes like ‘murder’ or ‘rape’, but which too, are ‘less serious’ than ‘treason’ or ‘sedition’. Why the Framers of the Constitution chose “high” rather than ‘major’ or ‘serious crimes’ has been subject of debate since Andrew Johnson. Many wondered what offences will constitute “high crimes” since it appears the Constitution distinguish them from ‘minor’, ‘major’ or ‘serious’ ones. Others have asked whether the ‘high’ in “high crimes and misdemeanors” also modifies “misdemeanor” –suggesting ‘high crimes’ as well as ‘high misdemeanors’.

Should the phrase “high crimes and misdemeanors” be “limited to acts which would be indictable as criminal offences” or should it include “abuses of office or breaches of trust not constituting criminal acts?” The question being ‘whether an offence must be ‘criminal’ to be ‘impeachable’ or that certain non-criminal offences may be ‘impeachable’. At the Nixon trial some canvassed the ‘narrow’ view that the grounds for impeachment should be restricted to violation of the criminal code, while others to the ‘broad’ view that it extends to certain non-criminal, political or ‘administrative’ offences. Concerning ‘mal-administrative’ wrongs many constitutional experts feared “the power of impeachment would be used too frequently if Congress were guided by such a general term”. It was the reason, many said, the now-equally-controversial phrase “high crimes and misdemeanors” was preferred over “the vaguer” term ‘mal-administration’.

An independent White House report said “only criminal offences which are found in the Constitution or laws of the United States and which are of a serious and public or governmental nature” should be grounds for impeachment. It argued that “impeachment and criminal law serve fundamentally different purposes”, and that the former (impeachment) “is remedial not penal and may be based on an entire course of action rather than individual acts”.

Meaning, whereas criminal law is obligated to punish every crime committed, it is the consistency in the ‘breach’ of an article of impeachment and not just the ‘unlawfulness’ of the breach that may justify impeachment. But the report of the House Judiciary Committee, argued that ‘impeachment’ should “be addressed to serious offences (criminal or otherwise) against the system of government” with a view (only) to preventing conducts capable of subverting its structure or undermining the integrity of its institutions.

In line with this view, the post-Convention statement of Alexander Hamilton was quoted who described the subject of impeachment as “those offences which proceed from the misconduct of public men, or…from the abuse or violation of some public trust”. They are, he said “of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society”. Thus, it is not just about misconduct which exceeds ‘the constitutional bounds of the powers of the office (of the President) in derogation of the powers of another branch of the government ; or about conduct ‘incompatible with the proper function and purpose of the office (of the President), but it is about ‘employing the power of the office (of the President)’ for an improper purpose or for personal gain’. It is about the DELIBERATE conduct of the President which brings harm to the system, people or country as a whole. ‘DELIBRATE’ here meaning that the President intends so.

It is the reason that the House Committee report warned that unlike in normal judicial circumstances, “past impeachments are not precedents to be read with an eye for an article of impeachment identical to allegations that may be currently under consideration”. Of greater significance it said “are the nature of the allegations”. It is the reason also that it said “impeachment is a constitutional remedy which the Framers intended to reach grave misconduct which is so injurious to constitutional institutions and the form of government” to justify removal of the President.

It is interesting to note that whereas the House Judiciary Committee report believed that the Framers of the U.S. Constitution wished to avoid creating “too weak” an executive arm (as was the case under the confederacy), the White House Staff report believed the Framers rather avoided creating “too strong a legislature” (as was the case under the same confederacy). Impeachment it said “was intended to provide a check on the President… but not to make him dependent on the unbridled will of the Congress”.

The provision in Nigeria’s Constitution for “gross misconduct” as basis for impeaching a President will be no less jurisprudentially debatable than “high crimes and misdemeanors” has been. Because the question will then be asked: how ‘gross’ should ‘gross’ be?’ Is it ‘gross’ as in the ‘superfluity’ or ‘surfeit’ of a particular wrong, or as in the ‘cumulation’ of a series of ‘acts’?  Or is it ‘gross’ as in the ‘weight’ or ‘gravity’ even of a single ‘act’? Or is it ‘gross’ as in the ‘flagrance’ or the ‘brazenness’ of an act or omission? Or by the way, should the ‘misconduct’ in ‘gross misconduct’ be a ‘criminal’, ‘political’ or even ‘administrative’ wrong ?

In any case, although a Nigerian President will be exceeding his constitutional powers in derogation of the powers of another branch if he spends money without legislative approval, should the question not be asked whether the act was a ‘willful breach’, an ‘innocent mistake’, a ‘reckless inadvertence’ or in fact a ‘necessary violation’? Or should it not be asked whether that ‘misconduct’ was ‘intended to cause harm’ to the state, or whether it ‘has caused harm’ to the state, or whether it ‘could have caused harm’ to the state, or ‘may’ in the future, ‘cause harm’ to the state?

In the course of the Clinton impeachment trial, Richard Gephardt, House Minority Leader said “Our founding fathers created a system of government of men, not of angels”.




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