By Chinedu Vincent Okoro
It is indisputable that there have been a good number of arguments and debates on the immunity clause on the basis of whether it should be upheld, reviewed or removed from the Nigerian Constitution. To start with, I have to x-ray the meaning of immunity clause.
The Black Law Dictionary defines ‘immunity clause’ as a provision that limits the responsibility of a trustee or leader to liability for negligence or misconduct. The 1999 Constitution of the Federal Republic of Nigeria, Section 308, as amended, asserts that the immunity clause is for top government officials, including the President, Vice President, Governor and Deputy Governor respectively. The section clearly states that there shall not be any civil or criminal proceedings, indictment, trial, judgment and imprisonment to the aforementioned political bigwigs while in office.
The immunity clause, without an iota of contradiction, first came to light in the First Republic, 1963 Constitution of Nigeria (Section 161). Those that drafted Nigeria’s constitution would agree with me that there is nothing like immunity clause in the constitution of U.S.A., from which we borrowed the pattern of our constitution. The only thing that looks similar to, but not exactly as, ‘our immunity clause’ is the Detects of Article IV (States’ Relations) Section 1 (2), which provides citizens of each state entitlement to all privileges and immunities of citizens in several states. This implies that a citizen in the state of Georgia is entitled to all the privileges and immunities of Florida citizens.
Immunity Clause and Good Governance
The concept of good governance is all about a government being accountable, transparent, responsive, effective, subject to the dictates of the law, participatory, equitable and inclusive in their day-to-day governance of a state or country.
The above qualities are hardly practicable in the Nigerian polity. According to the 2017 Ibrahim Index of African Governance (IIAG) report, Nigeria, being the giant of Africa, scored lower than the African average (50.8) and lower in the regional average for West Africa (53.8).
It is unarguably correct that the Nigerian ‘homo politicus’ have turned the Nigerian political landscape into a laboratory room for carrying out their mischievous and self-aggrandizing experiments. Nigeria is a country where a top political leader embezzles, misappropriates, diverts and stashes away public funds for private use and walks around as a free man while in office and even after leaving office; a country where the common citizenry cannot sue a top political official like the president or governor, but such personality can institute suits on any citizenry of the country; a country where some political zones enjoy the dividends of democracy and opportunities more than others. All these are supported by the immunity clause. Where, then, is the rule of law?
Immunity Clause and Impeachment Misconceptions
There have been series of arguments by the top political class and citizens on immunity clause and impeachments. Some political class argue that since there are impeachment proceedings for political officials who are found in gross misconduct, according to Section 143 of the 1999 Federal Republic of Nigeria Constitution, there is no need to remove immunity clause from the constitution. This negative impression needs to be corrected.
I will buttress my impression with realities in USA. During the Nixon investigation, Ronald Rotunda’s 56 pages legal opinion stated that the President is not immune from prosecution. His first argument was that the Constitution didn’t state that the President is immune from prosecution. There are a number of cases in the Constitution in which immunities are spelled out. He also said, if it was the intent of the Founding fathers of USA to make the President immune, they would have written that in. Also, the views of a majority of Justices in Nixon v. Fitzgerald quite clearly supports the conclusion that it is constitutionally permissible to prosecute a sitting president. But here in Nigeria, immunity clause has made a sitting President above prosecution. Despite the impeachment proceedings instead of prosecution for a sitting president found in any gross misconduct, it will surprise you to know today that none of the past presidents in the history of Nigeria has ever been impeached. Does it mean that all of them are saints? I also studied the records of previous governors in USA, I came to discover that former State Governors like H. Guy Hunt (Alabama State), Jim Guy Tucker (Arkansas State) were all convicted while in office as a result of gross misconduct. The reverse is the case with some past Nigerian governors since 1999 to date, who were impeached as a result of gross misconduct, but their impeachments were later nullified and overturned by one higher court or the other in Nigeria. With the analysis above, you will see that in U.S.A., any public official found in any misconduct will be severely dealt with, but in Nigeria, impeachment proceedings meant for government officials who are under immunity is theoretical, fraudulent and not a pragmatic concept.
In conclusion, the immunity clause has created political, social and developmental problems in the leadership of Nigeria and therefore should either be reviewed or removed from the constitution of the Federal Republic of Nigeria for a better Nigeria. I vividly recall that President Yar’adua, while he was the sitting president of Nigeria, before the “Partnership against Corruption Initiative” in Switzerland, admitted that immunity clause was unethical for a country like Nigeria and also agreed that it would be reviewed in subsequent amendments of the Nigerian Constitution. I, therefore, end with the words of Mallam Labaran Maku, the former minister of information: “Removal of immunity clause would help tackle corruption and ensure good governance in Nigeria.”
Chinedu Vincent Okoro is a Nigerian writer, teacher and Political Activist. Connect with him through firstname.lastname@example.org