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Published online by Cambridge University Press: 28 July 2009
Impeachment proceedings are a rarity in the African context. This is not surprising given the history of executive dictatorships, all-powerful one-party states and a subservient media. With the dramatic change in the constitutional landscape of the 1990s, attention should be focused on the adequacy of the presidential removal provisions in African constitutions. This article therefore undertakes a critical review of the relevant provisions in anglophonic African states. It argues that they are unsatisfactory in several respects and calls for them to be thoroughly revised.
1 This makes inexplicable the recent amendment to the Namibian Constitution allowing the presidential incumbent to stand for a third 5-year term in office.
2 For example, two major constitutional texts in South Africa merely summarize the relevant constitutional provision: see Basson, D., South Africa's Interim Constitution, Cape Town, 1995, at 128Google Scholar and Chaskalson, A. et al. Constitutional Law of South Africa, Cape Town, 1998, at 3–28G.Google Scholar
3 The constitutions of francophone African states are largely silent on the issue whilst the constitutions of lusophone African states make only a brief reference to the issue.
4 Of course the fiction was still maintained that the King could do no wrong.
5 Berger, R.Impeachment: The Constitutional Problems, Cambridge, 1973, 4–5.Google Scholar
6 Save that the Chief Justice was required to preside over the impeachment trial in the Senate.
7 Berger, above, 5.
8 See Roberts-Wray, K., Commonwealth and Colonial Law, London, 1966, 304. The exceptions were the Federation of Rhodesia and Nyasaland and Ceylon.Google Scholar
9 There were seemingly no female governors in anglophonic Africa.
10 See the Criminal jurisdiction Act, 1802, and Hill v. Bigge (1841) 3 Moo PC 465.Google Scholar
11 Presumably this was on the basis that it was inappropriate to subject an incumbent to a process that could lead to their imprisonment.
12 In Ghana the President must further declare that: “…should I at any time break this oath of office I shall submit myself to the laws of the Republic of Ghana and suffer the penalty for it …”: Second Schedule to the Constitution of Ghana.
13 Under the 1979 Constitution of Nigeria, similar removal provisions applied to both the President and state governors.
14 The Constitution of Nigeria defines “gross misconduct” as meaning “a grave violation or breach of the provisions of this Constitution or a misconduct of such a nature as amounts in the opinion of the National Assembly to gross misconduct”: s. 143(11). Thus the same situation as that concerning the Governor of Kaduna State could still arise.
15 See s. 143(2)(b) Constitution of the Federal Republic of Nigeria. In The Gambia and Namibia the misconduct must be such as to render the incumbent “unfit to hold office”.
16 See Berger, above, at 210.
17 Cf. section 69 of the Constitution of Ghana that provides one ground for removal is where the president “has brought or is likely to bring the office of President into disrepute, ridicule or contempt”. This is surely too wide and is also remarkable in that it purports to cover future reactions to presidential actions.
18 Art. 69(1)(b).
19 S. 86(2)(a).
20 See art. 86(2) Constitution of Malawi and art. 29(2) Namibian Constitution.
21 But presumably this could be covered by the phrase “gross misconduct” in other AACs.
22 But see the discussion in example 6 below.
23 For example, a suitable division might be based on extraditable and non-extraditable offences.
24 Certainly the original impeachment proceedings in England wedded criminal punishment and removal from office in one process.
25 See the views of Story discussed in Berger, above, at 84.
26 This is reflected in the Constitution of Uganda which provides for the removal of the President if “he or she has dishonestly done any act … which is prejudicial or inimical to the economy … of Uganda”: art. 107(1)(b)(2) (my emphasis).
27 Cf. article 29(2) of the Namibian Constitution which provides for removal due to presidential ineptitude such as “to render him or her unfit to [up] hold with dignity and honour the office of President”.
28 This is not such an outrageous example as one might imagine: see below the bizarre case of Canaan Banana and his sexual activities during his term as President of Zimbabwe.
29 Sunsiein (at 314) also notes this type of problem in the American situation. His solution is to view it as an extremely unusual case and an “exception to the general proposition” although he fails to demonstrate the basis for doing so. In fact such an argument undermines the basic principle of providing clarity in the removal process. It is surely better to deal with this type of situation headon. See Sunstein, C. R., “Impeaching the President”, (1998) 147 University of Pennsylvania Law Review 279.CrossRefGoogle Scholar
30 See, for example, the views of Ibrahima Fall, the then U.N. Assistant-Secretary-General for Human Rights in Parliament: Guardian of Human Rights, Inter-Parliamentary Union, Geneva, 1993, at 5.Google Scholar
31 Nwabueze, B. O., The Presidential Constitution of Algeria, London, 1982, 157. Berger notes that the impeachment of President Andrew Johnson in the United States “was an attempt to punish the President for differing with and obstructing the policy of Congress”: see above at 308.Google Scholar
32 At 324.
33 Nwabueze, B. O., Nigeria's Presidential Constitution 1979–83: The Second Experiment in Constitutional Democracy, London, 1985, at 324.Google Scholar
34 At 325.
35 Of the AACs only the Namibian Constitution provides for the removal of a directly elected president by members of the legislature alone.
36 Commonly 5 days if the legislature is sitting or a slightly longer period if it is not: see, for example art. 54(1) of the Constitution of the Seychelles and s. 51(3) of the Constitution of Sierra Leone.
37 In those that are silent on the matter (e.g. Zimbabwe), the point must be implied.
38 In most cases the AACs do not permit debate on the motion: presumably on the basis that the issues will be fully aired later during the investigative stage.
39 Surprisingly, only the 1999 Constitution of the Federal Republic of Nigeria (s. 143(2)) provides for this point.
40 Constitution of Sierra Leone, s. 51(2).
41 As Denning, Lord suggested in R v. National Insurance Commissioner, ex parte Viscusi [1974] 1 WLR 646, hearings before tribunals are “more in the nature of an inquiry before an investigating body charged with the task of finding out what happened” (at 649).Google Scholar
42 See Gubbay, C J., in Nhari v. Public Service Commission Supreme Court of Zimbabwe, unreported, SC 71/99 at 8.Google Scholar
43 The Constitution of Ghana (art. 69(4)) requires the tribunal to sit in camera. This cannot be correct, although it is always open to the tribunal to hear sensitive evidence in camera.
44 Banana v. Attorney-General [1999] 1 LRC 120.Google Scholar
45 Per Gubbay, CJ., at 135.
46 Art. 37(4). In the Constitution of Sierra Leone the rather more ambiguous word “sustained” is used although arguably this has a comparable meaning: cf ss. 51 (3)(b) and 51(4).
47 Constitution of Zambia, art. 37(4) and Constitution of Sierra Leone, s. 51(4).
48 In cases where the tribunal is tasked with determining whether the allegations are sustained, the issue of who bears the burden of proof, and to what standard, becomes significant. This is nowhere addressed. In principle, the burden of proof should be placed on those seeking to support the accusations.
49 A useful model here is article 69(8) of the Constitution of Ghana that states: “The Rules of Court Committee shall, by constitutional instrument, make rules for the practice and procedure of the tribunal … for the removal of the President”.
50 For example, Sierra Leone.
51 In Ghana the vote is taken “after prior debate”: art. 69(11) Constitution of Ghana.
52 Although this should not prevent parliamentarians having the right to seek clarification of aspects of the tribunal's report.
53 For example when the ruling party enjoys a two-thirds majority in the legislature: such as is currently the case in, e.g. Zimbabwe, Zambia and Namibia.
54 Sunstein, above at 314.
55 Presumably this refers to all members rather than merely to those actually present. It would be extraordinary if this were not the case.
56 In South Africa the President is elected to office by members of the legislature and thus essentially holds office at “their pleasure”. Here a resolution for removal requires the support of at least two-thirds of the members of the National Assembly: see Constitution of South Africa, s. 89(1).
57 This is the weakness of the approach in section 143(11) of the Constitution of Nigeria which provides that “gross misconduct” includes “misconduct of such a nature as amounts in the opinion of the National Assembly to gross misconduct” (my emphasis).
58 See also article 144(1) of the Constitution of Cape Verde which provides that “For crimes committed in the exercise of his duties, the President of the Republic shall be responsible to the Supreme Court of Justice”.
59 In Uganda, the electorate of any constituency and of any interest group have the right to recall their member of Parliament on the grounds of physical/mental incapacity, misconduct or misbehaviour or persistent deserting of the electorate without reasonable cause: see art. 84(2) Constitution of Uganda.
60 Although one could envisage the trade union movement organizing such a campaign nationwide.
61 For any state wishing to retain the involvement of the legislature in the final decision, it would be possible to provide parliament with the power to overturn the decision of the court on a bipartisan vote.
62 S. 89(2).
63 Art. 86(2)(e).
64 The sole exception being the Namibian Constitution which is silent on the matter.
65 This varies from one-third of all the members of Parliament in Ghana and Uganda to a majority of members in The Gambia.
66 Kenya, Seychelles, Sierra Leone, Zambia and Nigeria. There is no special majority required and, perhaps through an oversight, only in Zambia and the Seychelles is there a requirement for the resolution to be by a majority of all members of the Cabinet.
67 In Nigeria, the tribunal is appointed by the President of the Senate: s. 144(4) Constitution of the Federal Republic of Nigeria 1999. This is not ideal in that it fails to establish the independence of the tribunal.
68 Presumably some of whom are skilled in the field relevant to the nature of the examination to be conducted: this point is only spelt out in the Nigerian Constitution.
69 Another potentially useful approach to encourage presidential co-operation is found in Sierra Leone where the President must hand over power to the Vice-President pending the submission of the report of the medical tribunal.
70 Constitution of Kenya, s. 12(4). A period of three months is allowed: see further below.
71 An old example is the United States case of the insane Judge John Pickering in 1804 where “members of the Judge's own party strongly opposed his resignation for purely political reasons”. See Berger, above, 101.
72 The Malawian Constitution is silent as to who appoints the medical board. Thus it seems possible for the President to arrange for an entirely different board of (perhaps) more sympathetic medical practitioners to certify his/her fitness to resume office.
73 It follows that the procedure in South Africa where the presidential removal process on grounds of “inability to perform the functions of office” is simply by a two-thirds majority of members of the National Assembly, is unsatisfactory. Seemingly this is not even a two-thirds majority of all members of the National Assembly.
74 S. 12(5) Constitution of Kenya.
75 Art. 144(4) of the Constitution of the Federal Republic of Nigeria.
76 For example, in 1999 an effort to impeach the President of Venezuela was accompanied widespread public demonstrations calling for his removal. The President forestalled the process resigning.
77 Ibid, at 315.
