Ever since the return of Nigeria to democratic rule in 1999, one of the most hotly debated issues has been the existence of an immunity clause in the constitution, and whether it should be retained, modified or totally expunged. The immunity clause, contained in Section 308 of the 1999 Constitution, shields the president, vice president, governors and their deputies from all civil and criminal proceedings against their persons for the duration of their time in office.
This means that for as long as they are in office, no civil or criminal suit can be brought against their persons. They can only be tried either at the expiration of their terms in office, or if they are impeached by the National Assembly or their State House of Assembly according to the laid-down guidelines in the Constitution (Section 143 for the president and vice-president; section 188 for governors and deputy-governors). An example of this can be seen in the impeachment of former Bayelsa State Governor D.S.P. Alamayeseigha in 2006 after he was indicted for money laundering by the London Metropolitan Police in the United Kingdom.
However, a large section of the Nigerian populace are of the belief that this immunity clause gives the public office holders too much power and allows them to commit all manners of atrocities and get away with it since they cannot be sued and tried. They also are of the opinion that if the law truly is no respecter of persons, then there should be no one exempted from being tried in a court of law.
But why should a clause be inserted in the constitution to make some people ‘above the law’? I do not believe this was the intent of the drafters of the constitution. The existence of an immunity clause, rather, is to make sure that public office holders are not distracted by endless lawsuits, many of which would require their appearance in court. It also provided an alternative to prosecuting those same public office holders: either by instituting impeachment proceedings against them in the houses of parliament empowered to remove them, or by instituting legal proceedings against them once they are out of office.
Unfortunately, it is especially in the second alternative that we have failed woefully. Towards the expiration of President Olusegun Obasanjo’s second term, the then head of the Economic and Financial Crimes Commission, Mallam Nuhu Ribadu declared that about half of the governors had allegations of corruption against them. Yet, till date, all but one of the suspects has been convicted for financial crimes, and not more than nine have been charged to court. Among these nine, there has been no conclusive legal proceedings apart from the one against former Edo State Governor, Chief Lucky Igbenidion who got a slap on the wrist for his money laundering crime, as these cases seem to be lost in the jungle of our legal system, with its endless adjournments and what not.
This here shows that the real culprit in making our president, vice-president, governors and their deputies not accounting for their actions in office is not the presence of an immunity clause, but the absence of an efficient, working justice system and a lack of willingness by anti-corruption bodies and the government to pursue these cases. After all, there is no other excuse for not prosecuting these former governors since there is no shield of immunity against them.
What is needed for us to do is to strengthen our justice system by making it quick in dispensing justice and concluding cases, and by giving stiff penalties for crimes committed, not mere slaps on the wrist.
Additionally, there must be a resolve by the prosecuting and investigating agencies to investigate all allegations conclusively and satisfactorily, and also by the executive branch of government to provide political backing to these agencies which will shield them from interference, coercion and harassment by the suspects.
This is what is needed to make true the statement that no one is above the law or an exemption to the law.
Let us stop dissipating our energy in fighting an immunity clause that even without its existence nothing would change, unless we have a justice system that works well, investigating agencies that do not relent in their quest to unearth crimes and a political leadership that is committed to making sure that these two are effective.