By Lukman Olabiyi Justice Ibrahim Buba of the Federal High Court in Lagos has fixed October 16, to rule on whether or not to discharge a former Director General of the Nigerian Maritime Administration and Safety Agency (NIMASA ), Patrick Akpobolokemi, who was charged with N2.6bn fraud. The court fixed the date Friday after hearing…
It is called immunity clause, and it lives in Section 308 of our constitution, the 1999 constitution. Under this clause, certain public functionaries: President, vice-president, governors and deputy governors, are exempt from criminal prosecution while they occupy their offices. In other words, during their terms of office, they cannot be dragged to court to answer for any criminal charges. They cannot be prosecuted for corruption, murder or any other criminal offence.
This provision has been in place since 1979, and carried over to the current civilian dispensation. And since this period, it has remained very contentious. Should it be left as it is, modified or expunged altogether? Should elected public officers, who swore to govern in the interest of the people, the electorate, be shielded from answering to their misdeeds in the law courts during the period they are in office or not? And, why not?
The argument for and against the removal of immunity clause from the constitution is as combustive as it has remained quite polarising. The proponents and opponents (of the immunity clause) are not lacking in points to back up their arguments. The first group says: Immunity clause is needed to safeguard president, governors and their deputies from the distractions of frivolous litigations, given Nigerians’ penchant for long-drawn legal battles. If the affected public officers are stripped bare (which expunging the clause entails), what time would be left for them to discharge the crucial matters of state, the purpose for which they were elected? In a country where even electoral issues stretch up to two years, if a leeway is created for the prosecution of topmost government officials, what time is left for governance? It then follows, in the view of those canvassing the retention of this all-powerful clause, that a four-year tenure would be ‘wastefully’ used by a chief executive going in and out of the law courts. At the end, the ordinary Nigerian remains the ultimate loser because no dividends of democracy would be delivered due to the fact that the elected officials have been encumbered.
The flip side of the coin, argue those who seek the death of the immunity clause, is that this provision has become the chief promoter and grand protector of impunity. The impunity of corruption, lawlessness, murder and all manners of evil unexpected of the occupiers of the high offices the clause was meant to safeguard in the first place.
Here is the major flank of the argument for the removal of immunity clause: If a man is elected president or governor for a four-year term, and he turns to a big thief, milking his country and state dry, are Nigerians to wait for four years for him to complete his tenure before he can have his day in court to face justice? Given the powers of his high office, is it not possible for him to obliterate or tamper with useful evidences that could have led to his conviction? And if he turns to a ruthless killer in office, will the victims of his criminality have to wait all of four years to have him prosecuted, and what if he gets another term in office? It means an almost 10-year incubation period for his crime to be fully visited and punished. Is that fairness? Is that justice?
The opportunity of a constitution review seemed to have given Nigerians the chance to have a second look at this most controversial clause in the constitution, amongst others. Aggregating the views from the field, the House of Representatives, in a unanimous voice vote, threw out the immunity clause. It was to be expunged from the proposed new constitution. Even if they didn’t expressly say so, the argument on the floor seemed to suggest the belief that it was unnecessarily over-protective of the officials it benefitted. It had to go. They also voted to sever the states-local government joint accounts, while fixing a four-year term for elected local government officials, from the three years and two years tenure arbitrarily fixed by the respective states’ governors. In other words, the House declared a generous autonomy for the hitherto emasculated local government councils.
Since last week’s pronouncement by the House, not everyone has been cheering and clapping. The beneficiaries of Section 308, and those who had been accused of relegating and degrading the local government councils are not expected to be grinning from molar to molar. From what we have read in the newspapers and heard in the electronic media, many of the governors are angry at what the House has done. They are plotting to frustrate the efforts to kill Section 308 and the granting of any flicker of autonomy to the LGs. Their reasons: Not different from that of the supporters of the immunity clause. And, of course, they would perpetually want to weigh down and control the LGs by pulling the purse strings and determining their tenure.
But, for majority of Nigerians, I want to believe; the plan to expunge the immunity clause from the proposed constitution must be one of the most patriotic acts of the House. And I wish to be counted on the side of Nigerians in support of the death of immunity clause. It should not only be killed, but also buried forever. It is toxic, anti-people, anti-democracy, anti-transparency and anti-justice. As rightly argued, it promotes impunity. If democracy is government in the open, then we should have nothing to do with immunity clause for elected top government officials because it is obscene protection for malfeasance.
Of course, the argument can be made that we have done nothing with ex- governors and presidents, who have no immunity, so why are we bothered with immunity for serving governors and president? That argument is neither here nor there. For me, what should matter is that prosecution is ongoing and the courts are in a position to ascertain genuine cases of graft and frivolous or politically motivated ones. The other point is that, the fact that the president of the republic and serving governors know that they can be held liable and made to pay for their sins, whether civil or criminal, even while in office, will make them more circumspect and careful in the discharge of their duties and dealings with other citizens. That they are president or governors does not make them more human than others. Power without restraint is the other name for tyranny. No elected official should know that he could commit any crime and enjoy a breather so long as he occupies a high office. The removal of immunity clause ensures this does not happen.
We have seen American presidents being interrogated even with the majesty of their office. While President Nixon fell on account of the Watergate scandal, which established beyond all reasonable doubts that he indeed authorised the unorthodox invasion to obtain secret documents, President Clinton suffered moments of emotional and psychological torment over his inappropriate relationship with the Whitehouse intern, Monica Lewinsky. They didn’t plead any immunity clause to answer the charges preferred against them. We also remember the more recent case of Italian PM Berlusconi and the sex and assault charges. We can’t claim to be practising Western democracy when it suits us, and when it doesn’t we shout, ‘You know, this is Nigeria.’ If the Senate will join their younger colleagues in the House to throw out the immunity clause, they would have scored the bull’s eye in the eyes of Nigerians. The ball is in your court, Distinguished Senators!
*N.B: This piece, first published July 8, 2013, is being republished in view of recent developments, which indicated that immunity clause had been retained in the proposed constitutional amendments. The clamour for non-retention of this provision must be sustained by all Nigerians, if the current and future battle against massive looting of government coffers will be won. Even without Section 308, as we have seen time and again, it’s allegedly been a bazaar of stealing among government officials, past and present!