By ISE-OLUWA IGE
IN this report, Vanguard Law and Human Rights recalls a 2006 case law on applicability of impeachment clause in the 1999 Constitution to dissect the legality of last Monday’s removal from office of the Deputy Governor of Oyo State by the state House of Assembly and argues that except the sacked officer backs down on his legal push, the appellate court may spring a surprise on the technical ground of breach of fair hearing.
On December 13, 2005, while the House of Assembly of Oyo State was in session and sitting in its Chambers at the House of Assembly Complex, Ibadan, 18 of its 32 members held a meeting at a hotel in Ibadan called D’Rovans Hotels.
At the meeting, they issued a notice of allegation of misconduct against the then Governor of Oyo State, Senator Rashidi Ladoja and commenced impeachment proceedings against him.
But the 18 members of the House of Assembly did not serve copies of the notice of allegations of misconduct on other members of the House of Assembly.
Subsequently, the 18 lawmakers met at the same hotel in Ibadan, outside of the Chambers of the House of Assembly where they passed a motion calling for investigation of the allegations of misconduct they made against the Governor and requested the Chief Judge of Oyo State to appoint a panel of seven persons to investigate the allegations of misconduct against the Governor of the state.
Eventually, the process initiated by the 18 members of the House of Assembly of Oyo State culminated in the impeachment of the state Governor, Adewolu Ladoja.
But the Speaker and the Deputy Speaker of the House of Assembly as well as 12 other members of the House of Assembly were not involved in the proceedings.
The Speaker and the Deputy Speaker of the House of Assembly were therefore dissatisfied with the actions of the 18 members of the House of Assembly and the impeachment of the Governor of Oyo State.
Consequently, on December 23, 2005, they commenced a suit by an originating summons at the High Court of Oyo State to invalidate the impeachment.
The matter travelled from the high court to the Supreme Court where a seven-member panel of the apex court in December, 2006, invalidated the impeachment and returned Ladoja to his seat on the account that the lawmakers breached the provisions of section 188 of the 1999 Constitution.
Specifically, in the ratio decidendi of the judgment in the case (reasons for the judgment), the Supreme Court specifically faulted the process of impeachment of Ladoja, pointing out that the 18 lawmakers that impeached Ladoja did not constitute two-third of the House of Assembly; that the lawmakers unconstitutionally met in a hotel and not the chambers of the House of Assembly to issue notice and refer the case to the Chief Judge of the state for probe; and that the notice was not even served on the other 14 members of the House, among other defects as required by law.
Justice Niki Tobi, an academic-turned-jurist, in the bulky epochal leading judgment in the case consequently devoted his time to lecture lawmakers on how to constitutionally remove either a state governor or his deputy from office anytime the need arose.
He specifically took them through the provisions of section 188 (1-11) with a warning that a breach of any of the provisions would affect the impeachment of the executive office holder.
The judgment remains the locus classicus on constitutional removal of either state governors or their deputies in the country today.
Vanguard reports that after the judgment, Governor Adewolu Rashidi Ladoja who was elected in 2003 under the platform of the Peoples Democratic Party (PDP) but impeached in January 2006, was reinstated by the Supreme Court in December 2006.
Ladoja, seven years after, disclosed that the real reason he was illegally removed from office was that he told former President Olusegun Obasanjo that he was not qualified for a third term in office.
About 16 years after the Supreme Court delivered the epochal judgment on Ladoja’s case,the Peoples Democratic Party-dominated Oyo State House of Assembly travelled the same road,but this time around, with caution and removed Mr. Rauf Olaniyan as the deputy governor of the state, last Monday (July 18, 2022).
Olaniyan’s removal by the lawmakers followed the recommendations of the seven-man panel raised by the Chief Judge to probe the allegations of financial recklessness, gross misconduct and insubordination, among others levelled against him.
Governor Seyi Makinde quickly nominated Mr Bayo Lawal, a lawyer and the Chairman, Oyo State Housing Corporation, that same Monday (July 18, 2022) as the new deputy governor through a letter which was presented at the plenary that same day.
Shortly after the approval, the state Chief Judge, Justice Munta Abimbola, also inaugurated Lawal as Olaniyan’s successor that same day (July 18, 2022).
The swearing-in was held at the Executive Chamber of the Governor’s Office, Agodi Secretariat, Ibadan.
Makinde said: “The position of the deputy governor is a position of trust and our masters are the people of the state.Let me encourage you to put the interest of the good people of Oyo State first.
“You will continue to supervise the Housing Corporation even from your position as the Deputy Governor. Oyo State Road Maintenance Agency will also be under your direct supervision. The Ministry of Justice will also be under your directive, having served as the Attorney-General and Commissioner for Justice of the state in time past.”
Shortly after the inauguration, Lawal told journalists that his new role would be performed with full trust and loyalty to the government of Oyo State.
The new deputy governor thanked Makinde for finding him worthy of the task, assuring that he would use all within his disposal to complement and ensure more service delivery to the people of the state in line with the visions of the Makinde-led administration.
Lawal, who is from the same Oke-Ogun area like his predecessor, hails from Kisi in Irepo Local Government Area.
Olaniyan faults process
But the impeached Deputy Governor, Olaniyan, has faulted the process culminating in his removal from office.
He specifically said that his removal was in breach of section 188(5) of the 1999 Constitution, arguing that the Chief Judge of the state was wrong to have constituted the seven-man panel which recommended his removal from office.
In a statement on Monday by his lawyer, Afolabi Fashanu (SAN), Olaniyan said the panel set up to investigate the allegations raised against him was paid to do the lawmakers’ bidding.
The statement read: “The investigation by the committee set up by the Chief Judge is a charade that cannot stand the test of time.
“In the first instance, the Chief Judge, with respect, breached his oath of office by ignoring the service of notice of appeal and application for injunction pending appeal when he proceeded to constitute the investigation committee.
“This is against established law and practice. On the part of the panel, they were appointed and paid to do bodge and botch jobs, which must be contrary to good conscience.
“They served the Deputy Governor on Friday around 10.45am and asked him to appear at 11am. In our letter to inform them that His Excellency needed time to prepare for his defence, in their desperation to do the job for which they were paid, they rejected the letter, sat on Saturday, and completed their task the same day.
“Where is the fairness here? Members of the committee are supposed to be men above board. You have a Reverend Father, JP, Alhaji among them. This is clear evidence that we are not yet ripe for democratic practice.”
Although, a fundamental point touching on fair hearing was raised by the Deputy Governor in his removal, it is important to examine at what point was he denied fair hearing on the one hand and whether that denial of fair hearing is weighty enough to invalidate the entire impeachment process.
What exactly was the problem and at what point was Olaniyan denied fair hearing?
Vanguard Law and Human Rights reports that in 2019, the impeached Deputy Governor, Olaniyan was a governorship aspirant in the African Democratic Congress (ADC).
In the build up to the 2019 gubernatorial election, the ADC entered into an alliance with the ruling Peoples Democratic Party during which it was agreed that Olaniyan would drop his governorship ambition to become Seyi Makinde’s running mate and that they would, upon winning the election, run the affairs of the state together.
However, as soon as they won the election and settled down for the business of governance, there were rumours that the Deputy Governor alleged that his boss, Governor Makinde practically side-lined him and later began to starve the area of the state where he came from with developmental projects which they yearned for.
The development, which led to a frosty relationship between them, though was not quickly noticed by many.
But with time, keen observers started talking about the two principal executive office holders in the state, particularly with the absence of the Deputy Governor from state functions coupled with the realisation that he never represented the governor at events even though he had no official obligations.
For instance, the Deputy Governor was absent at the governorship primary of the PDP which held recently at Adamasingba Stadium in Ibadan neither did he attend the national convention of the party which held in Abuja recently.
Indeed, rumour was rife at a time that the state lawmakers were planning to travel to Ghana to strategize on how to impeach the deputy governor from office .
However, each time people talked about the frosty relationship between them, both always quickly denied existence of such, with assurance that they were in good terms.
Trouble, however, started when PDP started preparing for the 2023 election as rumours started again that the state Governor was planning to pick another candidate instead of Olaniyan as his running mate.
In fact, some concerned watchers of events advised the Deputy Governor to resign before he would be disgraced out of office but he refused to heed the advice.
And the bubble burst
But on June 5, 2022, Olaniyan announced that he had left the ruling PDP to join the All Progressives Congress (APC).
The deputy governor said he took the decision after thorough consultations with his supporters from across the state.
Mr Olaniyan, who described politics as free entry and free exit, added that all his political supporters prevailed on him to join the APC.
Olaniyan, however said he remained the Deputy Governor of the state, stating that it would not affect the relationship between him and the governor.
He maintained that he had no issue with his boss, adding that anything the governor expected from him in terms of governance, he would willingly carry it out.
According to him: “This was a joint ticket. I was promised many things. Alhamdulilah for everything. It is not about money. If it was about it, I wouldn’t have attempted to join politics. I am not uncomfortable but by being in position of power, you have the right to assist many people.
“My people have been calling. Those from Ibarapa called yesterday. The Okeogun are meeting in Iseyin as we speak. The people are what make me. They can’t say something and I say otherwise.
“Whatever the governor expects from me, I will do. I have been side-lined in politics. So there is no problem with us. I am still loyal to him except they want to misinterpret the meaning of loyalty.”
Teslim Folarin, the governorship candidate of the APC in Oyo State, received Mr. Olaniyan into the party, saying Mr Olaniyan’s defection was “a reflection of the arrogant and non-accommodating nature” of the PDP leaders in the state.
As soon as Olaniyan defected from the PDP, the state chapter of the PDP asked him to resign or be impeached but he said he would not leave office, having not committed any offence.
On June 15, 2022, 24 lawmakers served him a notice of impeachment accompanied by a petition alleging gross misconduct against him.
Rather than responding to the petition, Olaniyan approached a state high court for an order to stop the impeachment process.
But the presiding judge, Justice Ladiran Akintola ruled that the court would not be able to intervene because the notice of impeachment given him substantially complied with the provision of the constitution.
Chief Afolabi Fashanu (SAN) who represented the embattled Deputy Governor vowed to appeal the ruling of the high court and promptly did so while he served the court process on the House of Assembly.
But the House of Assembly went ahead with the impeachment process after the expiration of a seven-day grace given him to respond to the petition as the Chief Judge was approached to set up a panel to hear Olaniyan out.
The seven-member panel served Olaniyan a copy of the petition against him at 10:45 am ofJuly 15, 2022 and asked him to appear before it by 11:00am of the same July 15, 2022, a development that made his lawyer write the panel to ask for a little time to prepare his defence.
Instead of the panel granting his request, it went ahead with its proceedings and rounded off on Saturday, July 16, 2022.
Although section 188 (7) (b) provides that the panel has up to three months from the date it was set up to report its findings to the House of Assembly that set it up, the instant panel, in a speed of lightning ignored the request by Olaniyan to prepare his defence and nailed him within 72 hours.
His counsel, Chief Fashanu (SAN) said the panel could not have done better “because they were appointed and paid to do bodge and botch jobs, which must be contrary to good conscience.”
The panel has since turned in its findings of guilt against Olaniyan to the Oyo State House of Assembly on July 18, 2022, while the House of Assembly accepted the report on July 18, 2022, impeached the deputy governor on July 18, 2022, accepted nomination for replacement from Governor Seyi Makinde on July 18, 2022, approved the nomination on July 18, 2022 while the Chief Judge of the State also administered oath of office on the new Deputy Governor on the same July 18, 2022.
While stakeholders, including legal practitioners and judges (in their obiter) had, in the past, deprecated elected public officers jumping from the political party on whose back they rode to office to another political party, the two principal legislations on pre-election, election and post-election matters—the 1999 Constitution and the Electoral Act 2010,are unfortunately silent on the consequences of defection.
But a critical study of the 1999 Constitution shows that the only circumstance wherein an elected governor or his deputy can lose his or her seat is as provided under section 188 and 189 thereof.
Naturally, the deputy governor having failed to resign as suggested to him after defecting from his political party which provided him the platform to represent the good people of Oyo State at the Government House, has covertly accepted the option of facing impeachment rigour given him by his political party.
However, while it is agreed that impeachment appears the only option to sanction Deputy Governor Olaniyan who has dumped his political party to join APC, one would have expected that the House of Assembly should have allowed Engineer Olaniyan fair hearing having requested for time to defend himself while every stage of the impeachment process is strictly adhered to as provided in the Constitution and as adumbrated by Justice Niki Tobi of the Supreme Court in Inakoju Vs Oyo State House of Assembly in 2006 instead of rushing the proceedings.
The Oyo State House of Assembly should have known that fair hearing is one of the twin pillars of justice which is solely meant to avoid bias in a case, particularly on the part of a judge (which they are in this case), so that every reasonable person who attends the court proceedings would be satisfied that the court has been fair to all parties involved before the pronouncement of the judgment.
Besides, given the available facts in this case, the grouse of the former Deputy Governor was that he was not given a significant role to play as agreed when he was abandoning his gubernatorial ambition to join Seyi Makinde, a narrative that indicated that he was oblivious of the provisions of section 193 (1) of the 1999 Constitution which provides that “the Governor of a state may, in his discretion(emphasis mine) assign to the Deputy Governor or any Commissioner of the Government of the state responsibility for any business of the Government of that state, including the administration of any department of Government.”
By implication, the governor is not duty- bound to assign his deputy any role in governance neither is he under any compulsion to elevate a mere agreement between him and his running mate above the provision of the constitution.
However, the House of Assembly should have allowed the sacked Deputy Governor a little time to defend himself even when they know that he has no case.
But having denied him fair hearing, the House of Assembly may have inadvertently created a potent ground of legal challenge of the impeachment process for the sacked deputy governor.
Although, Olaniyan is already at the Court of Appeal, it only remains to be seen what the intermediate court would do in the instant case.