Immunity Clause: To Stay Or Not To Stay

It is perhaps expedient for me to begin this article by acknowledging that I am also contributing to a debate which has been raging for a long time, and to which thousands of Nigerians all over the world have contributed their own opinions. While I do not want to appear repetitive, it is instructive to note that I will definitely not have the last word on this matter, for as long as the debate continues to rage. Hence I am not daunted to contribute to it, because my little voice will add more to the debate.

The debate about “expunging, excising, removing, repealing the immunity clause in the 1999 Constitution of the Federal Republic of Nigeria” has been going for a long time, well before President Yar’Adua went to Switzerland and stood up to be counted as an opponent of this expansive immunity clause. Why he had to take that position well away from Nigeria is a bit baffling to me, but then he was speaking in front of representatives of multi-national corporations called “Partnership Against Corruption Initiative”, so what else do you expect him to say when confronted by powerful multi-national entities who are obviously scared of, and rightly concerned about their investments, current or potential, in Nigeria of today noted for its corrupt culture?

These representatives should be rightly concerned, what with scandals involving some of them linked to various Nigerian Government functionaries, being exposed on a daily basis – Wilbros, Siemens, etc, and the fact that their own governments are beginning to look into their sharp practices involving their officials and Nigerian officials to secure fat contracts. So it is expedient for Mr President to re-assure them, and he must say the right things. And thus, Mr President said “One of the raging debates in Nigeria today is the issue of constitutional immunity from prosecution conferred on the president, vice-president, governors and deputy governors. I have confidence that the next constitutional amendment will strip these public officials of this immunity and I am personally in support of that.”

Mr President is saying the right words, as he always does. Nigerians’ concern is if he meant it or how soon will this be implemented.

To recap, Section 308 (1) of the 199 Constitution offers a virtual carte blanche to the executives to get away with virtually everything, including murder, because what it confers on them is that they are free from criminal and civil prosecution, no matter what offence they committed whilst in office. They cannot be compelled to appear in court, be arrested, prosecuted or imprisoned if they commit any criminal or civil offence whilst they enjoy the privilege of being in office.

There are several ways to look at this issue of constitutional immunity from prosecution granted to our leaders. Some schools of thought have said that Nigeria is not the only country to have such doctrine in their constitution. I have not had time to read a lot of other countries’ constitution, but one thing I can say is that the American Constitution, which we had apparently borrowed and adapted to suit our own environment, does not have anything like this. My little bit of research only turned up the Privileges and Immunity Clause (US Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) which prevents states in the US from treating citizens of other states in a discriminatory manner, with regards to basic civil rights. The clause also embraces a right to travel, so that a citizen can enjoy privileges and immunities in any state he or she wishes. The text of the clause reads “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”.

Maybe this is the type of clause that should have been inserted into our Constitution in 1999 by those who drafted it. As we know, such rights, privileges and immunities are not being enjoyed by Nigerians in Nigeria today, but that is another story. Ask an Igbo man living in Bauchi or Borno or Sokoto State, for example, and see if he enjoys the same rights as a Bauchi indigene; or a Yorubaman living in Anambra or Abia or Cross River State, etc.

Well, there we have it. The US Constitution does not confer wide ranging immunity to Federal and State Executives from prosecution. For example, in 2005, the Governor of the State of Connecticut, Mr John G Rowland, was found to have received gratifications totalling $100,000, not even in cash, but by accepting free chartered trips and vacations and renovations to his cottage. The FBI immediately descended on him and did not wait for his gubernatorial term to expire because of an “Immunity Clause” as we have in Nigeria. He had to resign and upon this, was put on trial, and eventually sent to a year in jail (I hope with hard labour), after he himself admitted betraying the trust of the people he was meant to serve.

I shudder to think if he were to be a Nigerian Governor. As it is, save only Mr Alamieyeseigha of Bayelsa State, who was first impeached (and only after a lot of strong-armed tactics by the combination of ex-President Obasanjo and EFCC’s Nuhu Ribadu), even after they have left office, and having been accused, indicted and bailed to reappear in court, I am yet to see any of these “execu-thieves” go through a proper trial and sentenced. In fact, just last week, the Federal Government withdrew money laundering charges against ex-Governor Dariye of Plateau State, and that is after all the overwhelming evidence of corruption, including video and pictures against him, not to talk of being arrested and then jumping bail in the UK.. One of his accomplices has even been sentenced in a London court.

So the removal or expunging of this much abused immunity clause should be seen as a step in the right direction. Normally, in a normal country with well-behaved political leaders (and I am using this term very lightly), there would not be a problem with retaining such a clause, in fact, strengthening it, but in a corruption-ridden society such as ours, it has proved to be more evil than good. We have seen how it has been abused by irresponsible politicians, and the consequences on our society. It has caused untold sufferings to Nigerians – look at what misappropriation of public funds by these Executives have done to our healthcare system, educational system, road and other transportation, power generation and distribution, food and water availability, in fact, every facet of possible human and material development of a nation that want to call itself a progressive nation.

Furthermore, and perhaps the most important, is the fact that majority of Nigerians want this clause removed. Many of us believe that its removal will bring a great measure of sanity to governance and will prevent these office-holders as seeing themselves as above the law and as mini-gods, who can do and undo, playing with millions of human lives. It will prevent crooks, who had been convicted for all kinds of offences in foreign countries and in Nigeria from even nearing a ballot box to contest. Removal of the immunity clause will also mean that executives will not be able to instigate violence and murder against political opponents. Right now, we know that several state governors are behind militancy, thuggery and murder, and if the immunity clause is removed, even if they are not directly involved in these crimes, they can be hauled in by association.

Again, if we base the argument on the premise of morality in law, in a democracy, if we say that no one is above the law, why then are we allowing the Constitution to confer certain immunity on some people which then gives them the perceived right to be above the law? If no one is above the law, then if the immunity clause is removed, then we are all operating on a level playing field, and that means if positions of responsibility is given to a person, elected or appointed, that person would be made accountable for his or her stewardship while in office, and not after they have left office and caused irreparable untold damages and misery through their irresponsible behaviour. The immunity clause, as we currently have it has protected a lot of these politicians. Who would guess one year ago, of the monumental sums now beginning to surface that these thieves have stolen? We only hear of it because they are out of office.