Immunity clause, as presently enshrined in the Nigerian constitution with its attendance problem of deferring punishment of an offender to an arbitrary future day rather than immediate punishment at the point of abusing an office, is a tortured issue that merits reconsideration at the on-going review of the 1999 constitution by the National Assembly. This is because the original purpose for which the clause was meant to serve has been hijacked and largely turned into an engine of fraud. While the original intention for its inclusion in the Nigerian constitution was good, politicians have corrupted and bastardized the well-reasoned privilege, and willfully undermine the wisdom behind the grant of immunity to the detriment of Nigerians.
Crafted and provided as an open-ended protection, the clause at present, provides a loophole that breeds criminals in power as it gives latitude to boldly,with impunity commit crime against the state and the people. Given this palpable danger, it is apparently clear that the immunity clause as presently provided can no longer serve the need of contemporary Nigerian politics. It needs to be reviewed in line with emerging and contemporary realities. Any attempt to side-step or reject the call for a genuine and sincere review of the clause in the light of mounting kleptocratic activities of our thieving political elite is a disservice to the nation, a betrayal of public trust, and the power people repose in representative democracy.
Much as this piece is not to support the outright removal of the clause from the Nigerian constitution, it is sad to note that most of the arguments put forward in favor of its continuous retention are superfluous and essentially untenable. For example, the idea that the clause serves as a check on frivolous law suits is good, but the claim that institution of criminal proceeding against those in position of authority would interfere with their constitutional duties and invariably distract them from the business of governance is lame duck, and dishonestly one-sided. To be cleared, the real danger is not distraction from frivolous law suits, nor interference caused by the institution of criminal proceeding, but the criminal intent of thieving political elite whose immunity protection needs to be put on check. This is because, the loophole created by this constitutional lapse has created an incentive which continues to recruit criminal gangs whose mantra is ‘steal now and settle your way later.’
More so, from the standpoint that there is no error without a commission, and there is no reaction without an action, it is therefore a faulty constitutional wisdom to shield offenders from prosecution on the bases of avoiding political distraction that they caused by their greed and use their very hand to invite. On this score, the constitution should not be used to condone corruption or shield misdemeanor of those who became distracted not by avalanche of criminal proceeding as generally being claimed, but by their own inordinate desire, the moment they conspired to steal from our common patrimony. If the executive, be it president or governor wantsno indictment, or criminal proceedings instituted against it, the political office holder must then strive to refrain from such things that may compromise the law and abuse his or her office.
While immunity clause remains in hostage by this criminal intent, billions of dollars of the nation’s resources is being stolen daily with some portion reserved in anticipation to combat a potential battle for impeachment or a possible criminal lawsuit following an arrest after the pendency of office. In other words, the money stolen is used to wade-off arrest from anti-graft agencies, obstruct justice at the courts, and castrate any impeachment move on the floors of the National and State Legislative Assemblies. If we say an erring executive cannot be removed from office except by impeachment process, or be challenged with criminal proceeding except until after the pendency of office, are we not inadvertently supporting a system whereby the immunity clause creates incentives to avoid misconduct and leaves the nation without sufficient protection against the stealing disposition of these enemies of state?
The implication of this is quite threatening. The fact that allegations of corrupt enrichment can only be made, but cannot be investigated and proved against incumbent executive political office-holders, nor be called to account for their actions and inactions while in office, nor be made to resign on proof of gross misconduct, simply puts such individuals above the law. When punishment is put at a latter day and there is no immediate punishment at the point of abusing an office, this,in effect, encourages the recruit of more criminals with the intention to go into government to steal and use part of the same money to hedge themselves against impeachment or against any law suit.
This in part, explains the reason many cases of high profile individuals were not prosecuted, and others that were prosecuted were not successfully effected, talk less of being properly convicted beyond a slap-on-the-wrist conviction. As happened in our elections, this emerging pattern is the same as when politicians without conscience, rig an election to steal people’s mandate which comfortably puts them to sit in government houses and allow their opponents in the rigged election to fight from outside by going to court, while they use state machinery and the money stolen from the state to fight back.
In closing, aside from the above issues bedeviling its application, technically by law, the provision of immunity clause within the constitution also fundamentally poses some limitation that biases against the rule of law which is characterized by the doctrine of equality before the law, and under which every citizen of a country, no matter how highly placed is subject to the authority of the same law. If immunity clause, because of political expediency is accepted into the constitution to check frivolous law suits that may impair government functions and cause unnecessary political distraction, then by the same token, the clause should be reviewed to take care of the loopholes and check the new wave of stealing people’s money. To forestall abuse, such immunity from arrest, immunity from prosecution or immunity from imprisonment should be reviewed.The clause should not be made to cover fraud, corruption, embezzlement, and vindictive tendencies in government. Since graft in whatever forms wrought the same effect as overthrowing the sovereign, then, any incumbent executive found polluting the excellency with our common patrimony should be immediately arrested, tried and charged with treasonable felonyagainst the state.
Mofe O. Jeje writes from Commonwealth Information & Action Network (CIAN) in the United States