Case Against Immunity Clause 1

Recently, the President, Alhaji Musa Yaradua, suggested the removal of the Constitutional immunity barring the courts from trying the President, Vice President, the Governor, and the Deputy Governor for the misfeasance committed by them while in office. Having been a Governor and now the President, he is one of those in the best position to know the benefits or otherwise of this constitutional provision. Predictably the issue has turned into a red-hot polemic in which Nigerians have taken implacable positions. On one side are those who support its retention while on the other side are those who want it expunged from our Constitution. To avoid being unfair to those who support its retention, it is necessary to state that by supporting the retention of the immunity clause it should not be taken that they support corruption rather they are concerned with the distraction its removal would expose the heads of government. Whichever side one belongs, it reveals the depth and velocity of smouldering anti-corruption sentiments which very soon might blaze into a revolution.
To some Nigerians, the call by the President is a credible measure of his determination to run a transparent, clean and corruption-free administration. To others, the call aligns with the President‘s philosophy of abstaining from corrupt practices without insisting on others to emulate him. A ready example is his public declaration of assets which he never made mandatory for his ministers and subordinates thereby making it a flash in the pan. This school of thought see the suggestion as a diversionary molehill that can not make a mountain in the fight against corruption considering his closeness to some Nigerians undergoing criminal trial over corruption charges. They insist that retention or removal of the clause can not go far in eradicating corruption unless there is a seminal will by the Federal government to decisively deal with the scourge.
Before going further, it is instructive to define immunity, make incursion into its origin and explore its relevance or otherwise to governance. The Immunity law as is provided by our 1999 Constitution bars the Courts from entertaining any legal proceedings whether civil or criminal against the President, the Vice President, Governor and the Deputy for misfeasance committed while in office. While the Citizens or the State may have the right to sue any or all of them, the Nigerian Constitution has stripped the Courts of the power to hear such legal actions. Thus, it legally makes it impossible for any party, even the State to bring any of them to justice in our municipal courts.
Initially, the immunity law was besides, thought to bar the Police or any other State Security agency from investigating the person until the Supreme Court in GANI FAWEHINMI Vs IGP contradicted this position. The law now is that the Police or any other State Security can investigate a Governor, his Deputy, the President and also his Vice over any allegation while in office. But the trial or prosecution will have to wait until he leaves office.
Historically, Immunity arose from the concept of sovereignty. A Sovereign is any legal entity with supreme political authority whose actions and decisions cannot be challenged by any other authority or the Courts of the land. The origin of immunity could be traced to the evolution and practice of monarchical government in which the Monarch or King was held to be a Sovereign with the power to solely make laws for his subjects which himself was not subject to. Being the sovereign, it was considered absurd for the King to be subject to his own laws. He therefore could not be tried or be made to appear before the Court. This was the era of monarchical dictatorship. With advancement in political development leading to parliamentarism or representative government, it was enshrined in the Bill of Right of 1689, conferring parliamentary immunity on the members of the parliament over speeches, statements, remarks etc made during parliamentary sessions. Also under international law, immunity was extended to the independent States or their Representatives against prosecution by the Courts of foreign nations. The aim was to promote global peace within the comity of nations. An Independent State in international law is a defined territory with an ascertainable population and a public administration backed by law. The principles of immunity of States were laid in the US case of THE SCHOONER EXCHANGE V MCFADDON, 7 CRANCH 116 (1812).
It is when the law of the land regards a legal being as a sovereign that it takes legal steps to protect that being from being sued in Courts. It is for this purpose that the makers of the 1999 Constitution provided section 308, which makes the President, the Vice President, the Governor, and Deputy Governor immune to court jurisdiction. It is the position of the proponents of this law that this Immunity clause is necessary to shield them from the distractive effect of adverse legal actions, which could completely clog the machinery of state governance.
While the concept of immunity and its provision in our 1999 constitution might be appropriate, it must be balanced with our contemporary political realities. The reality is that our political class is corrupt from top to bottom, a fact that was known to the makers of the 1999 Constitution. These Politicians are the product of the incurably corrupt military class that arrested our development and despoiled of our resources and politics for over 35 years. Like the Military that groomed them, they are locust that eats the leaves, stem and root of the tree of our state resources, leaving nothing for development. Conferring on them an immunity clause is synymous with legally barring Police from arresting armed robbers or giving Police the power to investigate crimes immediately while postponing the prosecution 4 years after. The result is the raging corruption we have been facing since 1999 in which the President and Governors have been competing among themselves to excel in corruption and lawlessness. Right from the President to the Governors, they breathe a palpable air of impunity and have succeeded in providing evil example for those below them such as the Directors to join in the race of public stealing. This is so because it is the natural tendency of man to be inordinate in his ways in the absence of institutional and legal restraints.
The Military that crafted the 1999 constitution must have foreseen that their products that would run the government when they leave would be corrupt. If this was not their mindset, how would they have emphasized corruption-free governance in Section 16 of the 1999 constitution and turn round to provide immunity in Section 308 of the same Constitution for those who would run the government. What makes this curious is that the holders of these offices conferred with immunity control and disburse the wealth of the nation. Thus, the President with his Vice and the Governor with his Deputy manage our budgets, finances and any other form of our resources and are the likeliest arm of the government to be tempted by corruption in the application of these resources under their care. Besides, a preponderance of the state power is vested upon the executive arm of the Government, for example, the control of armed forces, other security services, and state instruments or articles of violence. The President and to some extent the Governors are vested with the power to give order on the use of our weapons through the police, and other security agencies on routine state challenges. They are therefore by the circumstances of their functions the least qualified for immunity. Rather than immunity, there should have been a stringent legal safeguard against the abuse of this awesome power the constitution vested on them. Instead the other two arms, the Legislature and Judiciary which do not control as much resources and state power were denied immunity indicating that this provision was borne out of conspiracy or devious calculation or at best devoid of political sagacity.
The Military that drafted the Constitution obviously wanted the post-military executive arm of government to enjoy unfettered freedom they too enjoyed in managing our national resources and exercising state power. That we have Houses of Assembly and National Assembly vested with the disciplinary power over the executives does not mitigate this constitutional aberration. This is because the legislative arm our Government is still struggling with political infantilism, servitude or excessive acquiescence to the executive due to lack of self confidence which arose from its absence from power during the long period of military dictatorship. They lack the spine to stop a rampaging President or Governor as we all witnessed during the last democratic government. We have not forgotten that most of the last National Assembly Members called former President Obasanjo, ‘Baba’ in body and spirit and could not be seen to contradict him. Apart from the short period former Senate President, Pius Anyiam and Speaker N’aba presided over the National Assembly; it had always been era of acquiescence and deferential servitude to Obasanjo’s Presidency. Even the little independence shown by Pius Anyiam and Na’aba was borne of political animosity and not progressive political motives. It was this timidity that made Ken Nnamani’s led National Assembly unable to override Obasanjo’s veto of the Freedom of information Bill. They allowed Obasanjo to get away with too many excesses. The courage they had in killing the Obasanjo’s third term project came from the political firework outside the National Assembly. The culture of legislative acquiescence or deference to the executive arm of the government has not abated under the present government.
There are those who argue that the mere fact that the President, Vice President, Governor and Deputy Governor could now be investigated while in power and the report kept for their prosecution when they leave office is a sufficient legal safeguard. This position is wrong. It is as untenable as it is inimical to good governance. In whose interest would it be for the State to allow a corrupt Governor, Deputy Governor, President or Vice President to continue to amass wealth corruptly while in power while the State waits for him to step down from office before he could be tried? This was why some of them were able to amass so much wealth and clout that it now costs Nigeria huge resources in terms of money, distraction and time to prosecute them. It is the awesome level of their clout that draws the officials of the present government to them as some of them still decide who gets appointments in government. In some cases, those who suppose to prosecute them not only visit them while in detention but go extra mile in shielding them from trial both in municipal and foreign courts. Without the immunity they would not have accumulated this deadly clout. Trying them while in power will make some of them that do not have the iron nerve for crime to avoid crime. Besides, our fraudulent electoral process permits a corrupt out-going public officer to influence the election of a lackey who would cover his trail.