Immunity Clause: To Stay Or Not To Stay

Not only this, removal of this irresponsible clause will act as a deterrent, no matter how small this effect will be (I said this because Nigerian politicians will always find a loophole to commit their crimes against the Nigerian people, irrespective of any law imposed on them, e.g. by god-fatherisms, etc) to others with the aim and intent of going into politics or government to make money. In most cases, a lot of die-hard politicians, who feel they do not have any other means of income, except politics, will not be able to make their way into office by crooked means. This explains why, not satisfied after eight years as Governors, some of them, under the pretext of still wanting to serve Nigeria, and are now Senators or Ministers. There is too much attraction to the oil money, everybody wants part of it – crookedly.

Having said all these, I have read with some interest, some arguments against the removal of the immunity clause, and some of them do have some merits. Some have said that removing the immunity clause from the constitution will undermine executive capacity (Kayode Oladele, 2006). While Mr Oladele admitted that the misconduct of some state governors has generated growing concern among Nigerians, he is of the opinion that the reason behind the clause was to enable the president and governors to perform their designated functions effectively without fear that a particular decision or action may give rise to criminal liability. In a way, this might be a very good reason, but in my opinion, there are a lot of powers granted these executives – executive fiat – within the constitution in the first place, that if they perform effectively and efficiently in the first place, they are well protected from such diversions. It is a matter of law and constitutional adherence. The problem has always been that our executives always flout the law and constitution of the land on a regular basis either because they are ignorant of the provisions or they deliberately do so because they know they can get away with it. I do not see this as a problem if executives are committed, sincere and honest in executing the functions which we elect or appoint them to carry out in the first place. The power of the people will always back them.

Another school of opinion has maintained that removing the immunity clause will have little or no effect, because of the simple-minded notion that we still have the same Nigerians in the system, who will now seek to rely on god-fathers and an inefficient and corrupt judicial system. I say no. Every little helps, so they say. If the removal of immunity is going to contribute only 2 percent to the fight against corruption, so be it. We cannot fold our hands and expect manna to fall from heaven. We cannot just sit there and let these people kill us while we put it in God’s hands. If removal creates fear in their hearts, and they still risk committing crimes against the Nigerian people, at least the fear of God has been put in their hearts, and if caught, they will be dealt with severely, harshly and appropriately by the people.

Yet another cautious opinion on the removal of this infernal clause is that Nigeria should not be seen as acting below such laws and practices in, say the UK and the USA , so as not to make us a laughing stock because we will be acting below general international standard practice. The premise here again is that other countries may have, or may have had, such a clause, and may or may not have expunged it, but as mentioned above, there is nothing like this in the US Constitution and the UK apparently has no written constitution. (Because the UK has no single codified documentary constitution along the lines of the Constitution of the United States, it is often said that the country has an “unwritten constitution”. However, most of the constitution does exist in the written form of statutes, court judgments and treaties. The constitution does have some unwritten sources, though, including Parliamentary conventions and the royal prerogatives.)

I will admit that removing the immunity clause is perhaps not the panacea to the problem of corruption in Nigeria. There are still many other ways to reduce corruption to a manageable level, (I have always said that it is impossible to have zero-level corruption in any society in the world) such as an effective and incorruptible judiciary, effective anti-corruption policies and law enforcement agencies, re-orientation of our people via education, rigorous screening of political candidates to prevent thieves and idiots from getting to positions of great responsibility, poverty reduction, imposition of tough fiscal and moral responsibility and accountability on executive and other office holders, etc. What we need to aim for instead is zero-tolerance. Removing the immunity clause is a positive step in achieving this zero-tolerance attitude and approach.

The immunity clause may have immense value and benefits, if and when it is not abused (and again, this may depend on which side of the garden you are) but what we have seen of eight years of democracy in Nigeria, this clause is redundant, abused, misused and totally out of tune with the aspirations of the Nigerian people.

I had written before (Democracy, Corruption and the Rule of Law in Nigeria, www.nigeriansinamerica.com, 08/08/2007 and Nigeria Today Online) that the American Constitution, for example, has undergone various and numerous changes over the centuries and will continue to do so till the end of time to reflect sociological, economic, cultural and human changes as inevitably they will happen. Why then do we think that the Nigerian situation must be different? Constitutions and laws are versatile documents; they are not permanent instruments. They can be manipulated to suit anybody. They can be amended. They can be interpreted in very different ways to have different meaning to different people at different times. They are not rigid articles of governments and the judiciary. In fact, that is why lawyers are on opposite sides everytime in a court of law, one arguing for and the other arguing against; interpreting the law to suit themselves or a particular case. The same goes for Constitutions; legislators, supposedly versed in the Constitution will interpret it differently to suit their own political agenda. Jurists have different interpretation and opinion of same sections of the same law. This is what makes laws and constitutions very robust.

This step of expunging the immunity clause should have been taken a long time ago but for the selfishness and indecision of the last Administration. The debate has again been awakened, and we must not let the opportunity go begging again. The Honourable Speaker of the House of Representatives, Dimeji Bankole said recently, after the speech by Mr President in Switzerland, and to our chagrin and alarm, that the House would only consider whether to remove the immunity clause or not at the end of the trial of formers governors who allegedly enriched themselves in office. Dear Honourable Speaker, waiting for that to happen is equivalent to not doing anything at all and is telling Nigerians nothing. It is also retrogressive and such statement is not worthy of you. In fact, it could be viewed and interpreted as delaying tactics and I would strongly urge you to consider another option, otherwise you will find yourself on the receiving end of some very hard knocks from your countrymen and women. You simply cannot wait until the end of these trials, because those trials can drag on for years, because of the financial and political clout of these ex-governors. For instance, just today, 04 February 2008, the case against ex-Governor James Ibori has been adjourned indefinitely because of a national strike by the Judicial Staff Workers Union. Also, there are many separate trials and they cannot end at the same time, so we are talking several years before the last one could end. And even if they end, and some of them are acquitted, as they may well be, does that prove that the immunity clause has had no effect at all on their behaviour while in office.

From all these, it is not hard to see that corrupt political leaders will make effort to see that the immunity clause is retained in the Constitution. That is the cloak under which they have been hiding for years and perpetrating their crimes against the Nigerian people, and sneer at and insult our laws and institutions and collective intelligence. The Immunity Clause is a licence for stealing, killing and maiming, and we are not being sentimental here. Recently, they have even added the phrase “Rule of Law” to give themselves more time to hide. The corrupt will do anything; go any length, to maintain the status quo, which suits them to the detriment of the Nigerian people. Trust Nigerian politicians to be ever protective of each other; whoever came up with this idea in 1999 deserves to be shot.

Again this brings me to what I have been taught since childhood – Let the truth be said always. Our officials, and indeed most Nigerians are always quick to declare our religious, political and tribal affiliations, yet when it comes to the issues of corruption, we are very slow in condemning it, hence the reason why it is increasingly difficult for us to fight corruption in our country. Corrupt Nigerian officials, past and present, politician, civil servant or military often conveniently and to their advantage, neglect their religious injunctions, despite bandying the Holly Books in our faces and claiming to be holier-than-thou. This is often exacerbated by fawning and sycophantic acolytes and hangers-on defending the indefensible just because they are gaining from the misconducts of these corrupt officials. What you do on earth is what you will be judged against in heaven or hell. Each individual, according to the Holy Books, must account for their own sins and not the sins of others.

No. The Immunity Clause must be expunged from the Nigerian Constitution, and there is no better time than NOW.