Case Against Immunity Clause (2)

Apart from financial corruption, the immunity promotes executive lawlessness as we all witnessed during the last government of former President Olusegun Obasanjo. We witnessed a situation where a former head of federal government was involved in an unsuccessful overthrow of elected state governor, loan was granted to a foreign country and a territory of Nigeria-Bakassi was signed away to Cameroon without the approval of National Assembly. The governors too got away with so many infractions. Things have not changed. They even seem to have deteriorated.
There are those who argue that removing the Immunity clause would expose the executive arm of our government to too many distractive legal actions. This argument lacks empirical and historical support because right now, the Senate President, the Speakers of the House of Representatives and State Houses of Assembly and the Chairmen of the 774 Local Governments in Nigeria do not have any immunity but there is not a single case of malicious legal action or prosecution against any of them. Any State official that conducts his state functions transparently will not encounter any malicious prosecution because Nigerians are not bloodhound. The further fear that it could be a lethal weapon for dictators like former President Olusegun Obasanjo, to remove the governors whimsically is untenable too because no President would do this if he knew that he had no immunity against criminal trial.
The centrality of the any law should be sustenance of good governance and not eliminating the fears of the President, Vice President, Governor, and Deputy Governor of being hounded out of office for crime. In fact, we want them to govern perpetually under this fear as a stimulus for restrained public conduct. Our legal environment should create a very strong climate of fear against bad governance. This is how it is in serious nations.
One other bizarre consequence of the immunity is that it legally raises the beneficiaries above the State and the law of the land. It makes the President, the Vice President, Governor and the Deputy Governor, a sovereign of the feudal order in a supposedly republican state like Nigeria. In a criminal case, the action is always between the State and a Citizen. Thus, an immunity that incapacitates a State from seeking a legal redress on criminal matters against a rampaging Governor, President, or their Vice will only make them an outlaw and is therefore a bad law. It is a bad law because an individual whether as a President, Vice President, Governor or Deputy Governor can not be bigger than a State. This is why Nigerian Executives are the most powerful, reckless and lawless in the world.
What is the solution? The first is judicial. We may toe the line of some countries with successful and mature democracies. In United States of America, United Kingdom etc, there is constitutional immunity but the heartening fact is that the Courts in these countries do not interprete the immunity to shield the men in power from criminal prosecution. If we desire to emulate them, we may not need to amend the Constitution to make our executives amenable to law. What is required is for the Nigerian Courts to follow the trend in the civilized clime by interpreting this constitutional immunity clause to shield the Governors, President and their Deputies from civil proceedings only but to make them judicially liable to be prosecuted while in office for crimes they committed while in power. This would tremendously elevate the character of our public governance.
As an alternative to the foregoing, I would humbly also suggest a legislative approach which would involve an outright removal of the immunity of the Governors because under municipal and international laws they are not sovereign as they are not the heads of government of independent states. This obtains in Europe and United States of America. Article 28 of European Convention on State Immunity 1972 provides that the Constituent States of a Federation do not enjoy immunity. Presently, the Governor of Illinois of US, Mr. Rod Blagojevich is facing criminal trial while in office because he has no immunity. If actually it is necessary, it should be a privilege of the President and Vice President, because they are the heads of an independent state and should be restricted to civil matters only. President and his Vice should have no immunity against criminal prosecution for crimes they committed while in power. Even at that, we need to know that in modern government, where the ruled and rulers are deemed equal because the latter are the representatives of the former in government, there is no place for immunity. This is why Bill Clinton, former President of US was almost impeached for mere inappropriate sexual relationship with a Whitehouse intern. Similarly, under international law, some former heads and senior officials of governments, Rebels that led insurrections etc (and some other ones like Sudanese President and Konny of Ugadan Lord’s Resistance Army would soon join) are presently facing criminal trial in the International Court of Justice (IJC) for acts that breached jus cogens (international norms) for example, genocides, slave trade, apartheid etc they committed while in office. Some of them like, Charles Taylor, Slovadan Milosevic were forced out of power and sent to ICJ for prosecution. Nigeria must march with the global times.
Finally, if the call for removal of the immunity clause is to win the anti-corruption war, I would say it would not be enough. However, it is a vital part of the composite strategy. It should be supported with the amendment of the constitution separating the office of the Attorney General of Federation/State from the Ministry of Justice. Because since Buhari’s government when the Attorney General of the Federation, drafted the obnoxious Decree 4 that restricted press freedom and the Anti-drug Decree that had retrospective effect, it would appear that it is impossible for the occupants of the office to free themselves from the politics of those who appointed them. For this reason, Attorney General who must be a non- Politician should be appointed by the National Judicial Council with input from Nigerian Bar Association and should report to the National Assembly or State House of Assembly as the case may be. The anti-corruption agencies should report to him. Our constitution should provide for Private Independent Prosecutor who would take up the duty of prosecuting corrupt officers in public and private services where the State agents decide to turn a blind eye for political expediency. The Courts as they are today cannot deliver the needed contribution in winning the anti-corruption war because they are too few for 140 million Nigerians and their practiced direction slows down trial process. Imagine a Supreme Court presently comprising about 14 or so Justices presiding over the affairs of over 140 Million Nigerians! That is one Supreme Court Justice per 10 Million Nigerians! The court system should be decentralized to meet the needs of our contemporary society. The Executive and Legislature have full independent structures at State and Federal levels. For example, States have separate and independent executive and legislative arms with their full structure and power so do the Federal government whereas the Judiciary is unitary in character. Therefore our judiciary should be federalized. Thus, the States should have a semi-autonomous judiciary and court system starting from High Court to Supreme Court. Similarly the Federal Government should also have Federal High Court, Federal Court of Appeal, and Federal Supreme Court with their jurisdictions distinctly categorized as it is in other federations in the world. There should be a central judicial body to control them. This would provide Nigeria with the optimal population of courts that can take adequate care of the conflicts and disagreements that result from our daily interactions leaving no room for resort to extrajudicial conflict resolution. We have enough constitutionally qualified lawyers to fill the positions.
And the Practice Direction of the courts should be amended to do away with procedures that slow down trial. Wherever part of this planet that has witnessed civilization and quantum progress, it has always been led by a virile judiciary that first fertilized the ground. We may accuse the present EFCC of not doing much to combat corruption. The reality is that it can not do much if the court is not reformed to meet the demands of the anti-corruption campaign. Among all, there must be the will to fight corruption because the absence of this would make the campaign a failure even with strong legal framework.
The Immunity clause should be expunged from our constitution for good because it is a recipe for corruption.