Fresh debate on Immunity Clause

Once again, the controversy over Section 308 of the 1999 Constitution, which provides immunity from prosecution for the President, Vice President, State governors and their deputies, is on the front burner. President Umaru Musa Yar’Adua blew the lid on the fresh debate on the clause, which provides immunity from arrest, prosecution and imprisonment for the concerned officials during their tenure of office, with a call for its removal from the Constitution.

Speaking at an anti-corruption campaign organized by the Economic and Financial Crimes Commission (EFCC) on December 10, 2008, the president described the constitutional provision which is popularly known as the Immunity Clause, as an impediment to a successful battle against corruption and called on Nigerians to join him in the effort to expunge it from the Constitution.

Justice Olufemi Akitan, in a valedictory speech on his retirement from the Supreme Court on December 15, 2008, supported the president’s position on the immunity clause, but wants it retained for the President and Vice President, “ because they represent the nation”. He enjoined the Supreme Court to consider an interpretation of the contentious clause in a way that will ensure that it does not cover any act “involving conversion or stealing of any public funds” put in the care of state governors.

The president’s position has re-opened the debate on the contentious clause with notable Nigerians arguing from different sides of the divide on its pros and cons. The sharp division of opinion on Section 308 of the 1999 constitution is not new. It has been on since the public outcry over the strident allegations of unbridled corruption by public officials during the Olusegun Obasanjo administration. On one side of the divide are those who want the immunity clause removed to boost the fight against corruption and the others who want it retained to protect concerned public officers from undue humiliation, harassment and distractions from their duties.

We welcome the fresh debate on the Immunity Clause. The great interest that Nigerians have demonstrated on this constitutional provision is, without doubt, a reflection of the appreciation of the dire consequences of corruption and unbridled political power on national welfare and development. It is instructive to note that the main antagonist of the clause in the fresh round of debates is the President who is a beneficiary of the provision, while state governors have, expectedly, opposed it.

We appreciate the positions of both the immunity clause protagonists and antagonists. We believe the clause was included in the Constitution to protect the concerned public officers from unnecessary litigation, which could distract them from their duties; and not to provide a licence for corruption. A wholesale abrogation of the clause could therefore lead to major political turpitude and unhelpful distraction from the duties they were elected to perform as they are dragged through the courts over both real and contrived civil and criminal allegations.

At the same time, our recent experience with corruption in public office shows that blanket immunity is tantamount to placing the concerned public officials above the law, where they are free to loot the treasury and commit other criminal acts. This unbridled licence can only have grave consequences for the polity and should not be allowed in any society.

We therefore canvass a middle ground – an amendment of section 308 – to provide for a protection of public officers from only civil suits while they are held responsible and accountable for serious criminal breaches such as murder, brazen theft and other serious economic crimes, like every other citizen. The proposed amendment to the Immunity Clause should reflect the fact that no public officer is above the laws of the land, whether while in office, or at any time, thereafter.

Beyond the proposed amendment of Section 308, however, is the need for the National Assembly and the State Houses of Assembly to be alive to their oversight responsibility over the executive arms of government. They should rise above bribery, intimidation and cajoling by the Executive and be ready to wield the impeachment stick, where necessary, to keep the President and governors in check.

We urge our politicians to imbibe a new understanding of public office as an opportunity to serve and not to amass wealth or to live above the dictates of the law. Above all, our anti-corruption agencies should demonstrate a strong will to investigate and prosecute financial and other crimes by former high public office holders, to deter such occurrences in future.