The House of Representatives has risen to the occasion to address one of the most pressing debates in Nigeria by considering removing the immunity clause enshrined in section 308 of 1999 Constitution of the Federal Republic of Nigeria (CFRN) being enjoyed by the president, vice-president, governors and deputy governors.
Some scholars have hitherto canvassed for the removal of the immunity clause because its retention appears ironic in view of the posture of the government to rid governance of corrupt practices, including misappropriation of public funds.
The current constitution amendment bill was sponsored by a member of the Peoples Democratic Party from Taraba State, Rimamnde Kwewum.
The explanatory memorandum on the legislation reads, “This bill seeks to provide for immunity and make the category of persons named and/or referred to in Sub-Section 3 of Section 308 of 1999 Constitution not subject to legal proceedings, whether civil or criminal, during their period of office, provided that such actions or offences do not relate to or bother on acts of corruption, murder, treason, or other (personal) crimes committed by them as individuals, whether in or out of office.”
Kwewum, in the legislative brief on the bill, said it seeks to amend Section 308(1) (a), (b) and (c) and Section 308(2). The lawmaker stated: “This bill seeks to remove all forms of immunity whilst holding such office. Currently, Section 308 of the CFRN provides immunity for persons holding the office of president or vice-president, governor or deputy governor under Subsections 1(a), (b) and (c); (2) and (3) thereof. In effect, by this constitutional provision, the restriction is placed on legal proceedings for persons holding these offices under Subsections 1 and 2, Section 308, CRFN.
“The amendment proposed here, however, seeks to limit or remove such immunity, whether civil or criminal, provided however that the action and decisions contemplated therein do not relate to such issues as corrupted to the crime of murder, treason, or any other personal crimes committed by the office holder as an individual whilst in or out of office.”
Kwewum highlighted that the immunity for heads of the executive arm of government presumes that holders of the offices necessarily possess some form of divinity that immunes them from committing crimes; always act according to the law and the constitution; do not have any interest or loyalties that go against the state and its people and are above the law-meaning that the law does not apply to them.
The lawmaker stated, “The above tenets do not conform to democracy and natural law of justice. Besides, deifying human beings these regulations have protected heinous crimes against the people and the state.
“Increasingly, around the world the rules of accountability and equality before the law are being strengthened.”
Speaking on the cliché, ‘Wait till after tenure’, the lawmaker posited that some well-meaning people have argued that the executive should not be distracted and that frivolous cases may be brought up against such executives.
Kwewum said, “The scenario of several cases cannot, however, prevent the strengthening of our system and constitutional framework to increase the greatest good for the highest number of people. Secondly, a chief executive – president or vice-president, governor or deputy governor – who commits a criminal offence has already distracted himself.
“Furthermore, such a criminal action itself disqualifies him from holding such a position and the very fact that he is suspected by law enforcement agencies and people of having committed such a criminal offence diminishes him and the offence he is occupying in the eyes of reasonable people.
“In addition, justice delayed is justice denied. Assuming a president or governor commits rape or murder, what if lack of immediate prosecution leads to his tampering with witnesses or evidence?
“The amendment being proposed will not pre-dispose governors and (other) executives to distraction as these are explicitly prohibited.”
Pundits have argued by citing various examples of other jurisdictions where immunity was limited or does not exist. According to them: “The United States of America: There is absolute immunity from civil litigation for official acts undertaken. The Supreme Court in the US held that the president does not possess absolute immunity from civil litigation surrounding acts he took before becoming the president. In 2020, the Supreme Court held that the president is subject to subpoenas in criminal prosecutions for personal conduct.
“The United Kingdom: Immunity from criminal prosecution is not immunity enjoyed by members of parliament. Parliamentary privileges are allowed. No prosecution for what is disclosed in parliamentary debates and processes.
“France: Only parliamentary privileges/immunity is allowed.
“Germany: There is only parliamentary privileges/immunity but parliament can vote to lift the immunity for specific members and allow prosecution.
“Chile: Parliamentary immunity. No immunity for serving Presidents. Prosecutions can commence after leaving office.
“Cote D’Ivoire: President is liable for acts done in the exercise of his office; can be prosecuted for high treason.
“Fiji Island: Full unconditional immunity for president, prime minister, etc.
“Kazakhstan: Immunity for the president.
“Lebanon: Immunity while discharging functions of the office.
“Niger: Immunity in the exercise of the function of office; no immunity for high treason.
“Russia: Inviolability of immunity for former and sitting president.
“Syria: Immunity except for treason.”
In the context of the 1999 Constitution, sovereignty belongs to the people of Nigeria, but this remarkable feature of the immunity clause emphasizes the functional necessity of the immunity which the constitution canvasses for these political office-holders.
A trial relating to any crime committed by any of them can commence after their tenure in office expires, but the evidence against them might have been destroyed, prosecution witnesses may die before the trial commences and changes in the law can enable them to evade justice.
If a civil or criminal proceeding was instituted against any person before he/she became President, Vice-President, Governor or Deputy Governor, the action will abate automatically.
It is right to say that the principle of equality before the law is significantly reduced by the sustenance of immunity in a democratic system where the rule of law operates. It is a generally acceptable maxim that justice delayed is justice denied.
It is also important to note that functional immunity cuts across the three branches of government: the legislature, the executive, and the judiciary. The immunity covered by the 1999 Constitution is intended for the executive branch of government.
However, the legislative immunity protects legislators from lawsuits with regard to anything they do or say during the proceedings of the house. Similarly, judicial immunity protects judicial officers from litigation arising from whatever they say or do during court proceedings.
The delay of litigation, projected by the cloak of immunity on these officeholders negates a very important aspect of democracy, which is equality of persons and sends a wrong signal that although all men are equal, some are more equal than others.
Recall, another set of scholars had asked that the immunity clause be extended to the leadership of the National Assembly and the States Houses of Assembly, but was jettisoned due to public outcry against such a bill.
Indeed, corruption has pervaded all spheres of Nigerian life from the ordinary to inspiring personalities, becoming systemic as well as a way of life of many public servants.
According to a former Secretary-General of the United Nations, Mr Kofi Anan, “Corruption is an insidious scourge that impoverishes many countries and affects all. It discourages foreign investments and hinders economic growth. It is a major obstacle to political stability and to the successful social and economic development of any nation.”
It is mind-blogging to note that some former state governors are serving jail terms for offences which they committed while in office. It is a general opinion in Nigeria that if the government is serious about this fight against corruption, then, no official should be immune from prosecution for corrupt practices or prevent criminal investigation while in office.
Cases abound of corrupt practices carried out by officials not protected by section 308 of the Constitution such as local government chairmen, directors of government institutions, ministers, and so on. For example, a Director of the Police Pension Fund embezzled several billions of the Nigerian Naira (local currency) recently. Therefore, the incentive for corruption is not the immunity clause.
The Christian Association of Nigeria, (CAN) General Secretary, Joseph Daramola; and Director, National and Legal Issues, Comfort Chigbue, during a recent conference on the review of 1999 constitution in Abuja also called on the National Assembly to amend Section 308 of the 1999 Constitution, which provides immunity.
Chigbue said, “CAN stands for equality of all persons before the law. So, we want the immunity clause (Section 308) to be expunged. Some governors hide under the cover of immunity to perpetrate heinous acts as they cannot be challenged in court. If you err either as a President or governor, and it is so fundamental, you should have nowhere to hide.”
The duties and rights created by the constitution are sacrosanct, mandatory and unchallengeable because the constitution is supreme to all persons, officers, governments, nations, religions and conventions.
Ironically, such executive officeholders enjoy immunity from being sued in any lawsuit during their tenure, yet they have the right to sue any person/persons. The amendment to this immunity clause is inevitable for the purpose of equity, fairness, justice and good governance in Nigeria.