America’s Andrew Johnson never attended school. His future wife, Eliza McCardle was said to have taught him to read and write. All that he had managed to accomplish was becoming a ‘tailor’; until he joined politics, where he would truly be ‘accomplished’ in that all-comers calling: he was elected to represent his State, Tennessee in both the House and the Senate and was Governor thereafter. He would be Vice President to the soon-to-be-assassinated President Abraham Lincoln in 1805. Thus by a political force majure, Andrew Johnson would cap his post-tailoring achievement with the ultimate icing on the cake, when he became the 17th President of the United States. And he was a strong President too. A grassroots Democrat, Johnson would fight a deeply partisan, dictatorship-bound Republican Congress bent on usurping his Presidential powers. The two arms were deeply divided over how to deal with the post Civil War American ‘South’ especially on the issues of ‘reconstruction’, ‘reintegration’ and the controversial question of ‘black citizenship’. Radical Republican legislators wanted ‘treacherous’ leaders of the confederate South punished, but President Johnson was obsessed with the task of Reconstruction and Reconciliation –twin projects bequeathed to him by Lincoln.
A nasty period of executive ‘vetoes’ and congressional ‘overrides’ would ensue, with the Congress eventually arm twisting the President to make to become law the ‘Army Appropriations Act’ (conferring congress with powers to ‘command the Army’), and the ‘Tenure of Office Act’ –arrogating toSenate the power to approve removal by the President, of Federal officers and cabinet members. These, in addition to the Congress also duplicating the President’s ‘Reconstruction Program’ with a new law reversing most of his achievements in that regard, convinced Johnson he was up against a power-andling parliament and he needed to take off the gloves. He would defy the ‘Tenure of Office Act’ by firing his Secretary of War, Stanton, triggering an executive-legislature mud-slinging leading to a Parliament-backed Stanton physically resisting takeover of his office by Johnson’s new appointee. This was lead to the first impeachment proceedings against a President in United States’ history.
The Senate had prepared 11 articles of impeachment against the President, 10 of which were on violation of the Acts of Congress purporting to wrest from the President, control of the Army and the bureaucracy. The 11th article accused Johnson of “attempting to undermine Congress”, while a 12th accusing him of involvement in the assassination of Lincoln, was dropped at the last minute because it was thought to betray animus by against the President. Nonetheless the Senate that tried Johnson was dominated by Radical Republicans filled with vengeance against Southern confederate politicians, and impeaching Johnson, was more a partisan quest for extra-legislative powers to feed that, than it was an altruistic attempt to defend democracy. Suffice it to say that although the impeachment was carried through amid the spectatorship of a deeply divided post Civil war America, Johnson survived the conviction vote and could not be removed from office. Seven moderate Republicans had voted in his favor, because they said Johnson’s actions were ‘the result of a struggle to preserve the powers of the president’.
Many legislators in fact said they “feared the removal of a President (on those grounds) would permanently damage the Presidency and weaken the traditional separation of powers” doctrine. And so, Johnson’s impeachment, even as it was America’s baptism of fire, it was also the earliest to reveal the character of ‘impeachment’ as inextricably ‘political’ and ‘legal. An American statesman, Alexander Hamilton had warned of the “danger that the decision (to impeach) will be regulated more by the comparative strength of parties, than by the real demonstration of innocence (or guilt)”. Andrew Johnson’s case alone did not exemplify this prediction. Over a century later, Richard Nixon’s Watergate impeachment scandal in 1974 and Bill Clinton’s Monicagate in 1999, were to be no less telling of Hamilton’s ominous prognosis. Of the 3 articles of impeachment prepared against Nixon, the charges of ‘obstruction of justice’ and ‘abuse of power’ were key. And whereas Nixon had to preemptively resign to avoid his impeachment, Clinton, ironically, survived impeachment even though in addition to the charges of ‘lying under oath (perjury)’, ‘concealing a sexual relationship with a White House intern’ and ‘witness tempering’, he was also accused of ‘obstruction of justice’ and ‘abuse of power’..
Said Robert Dallek “The impeachment proceedings against Clinton were highly politicized, with almost all Democrats supporting the President and almost all Republicans opposing him”. The Democrats argued that “lying about sex” was a private matter “and not an abuse of governmental authority”. But the Republicans said by “misleading the American public, (Clinton) had undermined the integrity of his office”. Clinton too had secured 5 renegade Republican votes from members who said although they deplored his actions, they believed the charges against him “did not rise to the standard of ‘high crimes and misdemeanors”. Herein lies the heart of the matter. Why should a President elected by ‘many’ be removed by ‘few’? Why must not the next election, determine what the people want? So that willfully by their votes, they decide to withdraw or to reconfirm their trust even in an erring president? What should be the raison d’etre for impeaching a President? Should it be to remedy his wrong ‘actions’ or to punish including his honest ‘omissions’? What should constitute impeachable offences? Political wrongs or strict violation of ‘law’? Should impeachment be premised on ‘moral misconduct’, ‘legal wrong’ or even ‘mal-administrative’ malfeasance?
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 House of Commons, and via a trial sealed by the House of Lords. And whereas the Americans borrowed this concept from the British, the latter, has 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”.
During the Nixon trial some canvassed the ‘narrow’ view that grounds for impeachment should be restricted to violation of the criminal code, while others the ‘broad’ view that it extends to certain non-criminal, political or ‘administrative’ offences. Many feared “the power of impeachment would be used too frequently” if Congress were guided by such general term as ‘mal-administration’. Reason the now-equally-controversial “high crimes and misdemeanors” was preferred over “the vaguer” term ‘mal-administration’. An independent White House report argued “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 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, it is the consistency in the ‘breach’ of an article of impeachment and not just the ‘unlawfulness’ of the breach that grounds 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” to preventing conducts capable of subverting its structure or undermining the integrity of its institutions. It is in line with this Alexander Hamilton, in a post-Convention statement, 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 relate, he said, “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, nor about conduct ‘incompatible with the proper function and purpose of that office, but it is about ‘employing the power of that office’ for an improper purpose or for personal gain’. 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”.
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?.
