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The primary function of the legislature is to make laws. Outside the law making function  of the legislature, it has the responsibility for amendment of the constitution. The legislature also approves the policies of the government and it’s a forum of expression of political grievance. The legislature also has the primary duty of resolving its own disputes.

The vexed issue is the power of the legislature to regulate its internal proceedings without judicial interference. The English Bill of Rights 1689 provided that proceedings in parliament ought not to be questioned in any court of law.

In Ekpenkhio v Egbadon (1993) 7 NWLR pt. 308 pg 717 were the respondent complained that he was unlawfully and unconstitutionally removed the respondent was properly removed as the speaker of Edo State house of Assembly by a two-third majority of members of the House of Assembly in compliance with S.4. (2) © of the state government (Basic Constitutional and transitional provisions) Decree No. 50 of 1991 which provides that the speaker shall vacate his office if he is  remove from office by resolution of the House of Assembly by the votes of not less than two-thirds majority of all members present. The court of Appeal held that the courts have no jurisdiction to inquire into what went on in the walls of the House.

On the issue whether the  House of Assembly breached its own rules in removing the respondent as the speaker of Edo State House of Assembly?

Also whether the respondent was denied fair hearing or not before he was removed from the office of the speaker of the House of Assembly by the  requisites majority votes of members of the House of Assembly. Ogundaro J.S.C. has this to say:

“The court has no jurisdiction to inquire into what went on in the walls of the House, whether the House of Assembly breached its own rules in removing the respondent as Speaker of the Edo State House of Assembly  or whether the respondent was denied fair hearing or not before he was removed from the office of the speaker of the House of Assembly by the requisite majority votes of members of the House of Assembly. The appointment and removal of such officer is within the domestic sphere of such legislation”.

Attention may be drawn to the fact that the position of the speaker is that of appointment. The appointment is made by the members of the House. the same members are empowered to discontinue the appointment on grounds of misconduct.

The president o rvice president and Governor or Deputy Governor are immune from civil or criminal proceedings and arrest or imprisonment d uring their tenure in office. However any of the above persons enjoying immunities could be investigated by the legislature. As provided in S. 308 of 1999 constitution. When the allegation of gross misconduct is found proved, the House can commence the removal o the office holder.

In Abaribe V Abia State House of Assembly (2002) 14 NWLR pt. 788 pg 466, here the appellant is the Deputy Governor of Abia State. Sometime prior to 8^th January 2001, sixteen members of the state’s House of Assembly presented an impeachment notice to the Speaker, for the removal of the appellant from office. The speaker forwarded the copy of the impeachment notice to the appellant under the cover of a letter requesting the appellant to react to the issues raised in the impeachment notice before 11^th February 2002. the speaker’s letter, together with the impeachment notice, was served on the appellant on 31^st January, 2000.

On 8^th February, 2000 which was 3^rd day, before the date on which the speaker requested the appellant to submit his reactions to the issues raised in the impeachment notice, the House took a vote resolving to refer the allegations in the notice for investigation. The appellant consider by passing the resolution at the time they did, the members of the House had infringed on his fundamental rights to fair hearing enshrined in S. 36 OF 1999 Constitution of Nigeria and Article 7 of the African Charter on Human and people’s Rights to enforce his fundamental rights. He claimed as follows:

“I. A declaration that the proceedings of the Abia State House of Assembly on 8^th day of February, 2000 purporting to vote on whether or not to investigate the allegations made against the applicant to him from office of the Deputy Governor of Abia State are illegal, unconstitutional and null and void being a flagrant breach of the applicant’s right of fair hearing as guaranteed by  S. 36 of the  1999 Constitution of Nigeria dn Article 7 African Charter on Human and people’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria.

2. An order of court setting aside the said proceedings.

3. An order of injunction restraining the respondent from taking further steps in the process of impeaching the applicant during the dependency of his proceedings”.

When the matter came up before the court the learned Judge, S.O. E. Nwanosike J. suo motu raised the question whether in view of the provision of S. 188 (10) of the 1999 constitution, he had jurisdiction to entertain the matter the appellant was seeking to bring before him should leave  be granted to him. He put the respondent on notice and invited the state’s Attorney General and U.N. Udechukwu, SAN, as amicus curiae. After hearing argument by counsel for the appellant and the amicus curiae the court held that she lacked the jurisdiction to entertain the relief the appellant was seeking. And so struck out the ex parte application. The appellant was dissatisfied and he appealed against the rulings intending that the court was wrong in declining jurisdiction in the matter.

On the nature of function being performed by the House of Assembly in exercising its constitutional powers in a matter relating to proceedings on impeachment, the House is performing a judicial function. As to what constitutes impeachable offence under the Constitution?  Or a misconduct of such a nature as amounts, in the opinion of the House of Assembly that has the power to determine what constitutes a gross misconduct or a conduct that will lead to impeachment proceedings.

On whether the court has jurisdiction with respect to impeachment proceedings, it was further held that by virtue of S. 188 (10) of 1999 constitution of Nigeria , the power of the House of Assembly with respect to impeachment proceedings are inviolable. Ikongbeh J.C.A> has this to say:

“Matters relating to impeachment shall not be questioned or entertained by the court of law. It has always been recognized and respected by all concerned. It’s not in my view ousting the jurisdiction of the court because the court had never posed the jurisdiction. The maxim; nemo dat quo no habet applies here”

It was added that the trial court was right not to have assumed jurisdiction as the court lacks jurisdiction in matters relating to impeachment proceedings.

It s hould be noted that the enormous power given to  the legislature to impeach on grounds of gross misconduct and supported by two-third majority of th emembers cannot be questioned by any court of law. Niki Tobi J.C.A. in Abaribe v Abia State House of Assembly advised the court:

“not to attempt to give itself power it has never been given by the constitution to brazenly enter the miasma of the political cauldron and have itself bloodied and thereby loosing respect on the quest to play the legendary”.

Conclusively, an impeachment proceeding ostensibly arises out of “gross misconduct” or gave violation of the provisions of the constitution.

Undoubtedly, whenever any provision of the constitution is violted it’s the sacred duty of the court as the watchdog of the provision of the constitution to decide a case in the interest of justice and  declaration of santify of the constitution a provision of ouster clause not withstanding.

Although, not even the strongest advocate of effective government would deny that in the interest of safeguarding liberty, government should be limited by separating legislature, executive and judicial power. Yet it’s only expected that one organ of government does not have a controlling influence over another.

For survival and sustenance of virile administration in a state, the thesis of predominance in the separate organs of government is the controlling factor. So long as the impeachment is carried out by the legislature along their functional determination and supported contemporaneously by two-thirds majority fo members present and voting, the court cannot interfere.

AIGBOKHAN PREST is a 400 Law Student of Ambrose Alli University, Ekpoma, Presently the National Coordinator Esan Law Student Association of Nigeria (ELSN) (April, 2006)