Presidential removal: Unzipping the constitutional provisions

Journal of African Law

Volumn 44, Issue 1, 2000, Pages 1-16

  Hatchard, John ^a  

^a NONE

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EID: 77957282483     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855300012018     Document Type: Article

References (30)

1. For example, two major constitutional texts in South Africa merely summarize the relevant constitutional provision: see D. Basson, South Africa's Interim Constitution, Cape Town, 1995, at 128
2. and A. Chaskalson et al, Constitutional Law of South Africa, Cape Town, 1998, at 3–28G.
3. R. Berger, Impeachment: The Constitutional Problems, Cambridge, 1973, 4–5.
4. Berger, above, 5.
5. See K. Roberts-Wray, Commonwealth and Colonial Law, London, 1966, 304. The exceptions were the Federation of Rhodesia and Nyasaland and Ceylon.
6. See the Criminal jurisdiction Act, 1802
7. and Hill v. Bigge (1841) 3 Moo PC 465.
8. See Berger, above, at 210.
9. See art. 86(2) Constitution of Malawi and art. 29(2) Namibian Constitution.
10. See the views of Story discussed in Berger, above, at 84.
11. Sunstein (at 314) also notes this type of problem in the American situation. His solution is to view it as an extremely unusual ease 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 head-on. See C. R. Sunstein, “Impeaching the President”, (1998) 147 University of Pennsylvania Law Review 279.
12. 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.
13. B. O. Nwabueze, The Presidential Constitution of Nigeria, 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.
14. B. O. Nwabueze, Nigeria's Presidential Constitution 1979–83: The Second Experiment in Constitutional Democracy, London, 1985, at 324.
15. Constitution of Sierra Leone, s. 51(2).
16. As Lord Denning 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).
17. See Gubbay, C.J., in Nhari v. Public Service Commission Supreme Court of Zimbabwe, unreported, SC 71/99 at 8.
18. Banana v. Attorney-General [1999] 1 LRC 120.
19. per Gubbay, C.J., at 135.
20. Constitution of Zambia, art. 37(4) and Constitution of Sierra Leone, s. 51(4).
21. In Ghana the vote is taken “after prior debate’”: art. 69(11) Constitution of Ghana.
22. Sunstein, above at 314.
23. 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).
24. 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.
25. 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.
26. Constitution of Kenya, s. 12(4). A period of three months is allowed: see further below.
27. 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.
28. S. 12(5) Constitution of Kenya.
29. Art. 144(4) of the Constitution of the Federal Republic of Nigeria.
30. Constitution of the Federal Republic of Nigeria, at 315.