By Ramoni Kabiru Babatunde

Saraki and Dogara

Senate President Bukola Saraki (l) and Speaker Yakubu Dogara at a joint session

It is an indubitable fact that since 1999 when Nigeria returned from autocratic rule, every May 29 of the year, the nation celebrates her malodorous democratic system day.

            My first question is: “Is it the system we are celebrating or the notorious leaders?” because this country has suffered or sustained high level of injury from the hands of imperial leaders and no doubt that military added their own thereby putting the country in a destructive garden. Nigerians believe that democracy will reduce the dilemma to a minimal level if not totally eradicated but things are exacerbating, therefore celebration will only amount to merely adding salt to injury.

Can we proceed to discuss about how democracy has been messing up and down through the flouting of the rule of law, no equality before the law where some fundamental human rights are been buried, or the way our leaders are making political arena become bugaboo, or about the oligarchy nature of the system or powerfulness of some individuals that tend to weaken our institution all over and above. These factors and others are responsible and responsive for the unsmooth nature of our political system which results into political cum economic quagmire of our dear nation today. But, here more light will be shed on immunity clause and its impact.

The 1999 Constitution was extracted from both 1979 and 1989 constitutions, but 1999 Constitution also enshrined new provision especially the most controversial Section 308, “The immunity clause” immunity clause is the provision that will limit the responsibility of a trustee to liability for negligence or misconduct. Hence, this is the clause that prevents the chief executive and his deputy from being prosecuted, arrested or tried while in office. This clause attracts masses’ comments from different angles while some proponents argue in favour and at the same time the antagonists argue against the clause.

The antagonists condemn the clause on the condition that its provision gives undue protection to the chief executive and their deputy as this will encourage corruption and bad governance among others. But its proponents maintain the status quo on the issues as the removal of the clause will give room for unnecessary distraction of chief executive and their deputy. The formal argument was based on patriotism and altruism. While the later argument take their abuse of the clause for granted. Now we can taste the validity of both claims in practice just to discover the one that can hold water.

Firstly the country named Nigeria today is a western creation, someone like Sir Ahmadu Bello regarded it as “the mistake of 1914”, therefore any system Nigeria attempts to practice or adopt today is a foreign idea except in the case of absolute monarchism. Though the imperial leaders left with us parliamentarian system of government; a system of winner takes all, where there is fishing of power between the executive and the legislative arms of government; it was the 1979 Constitution that made provision for the presidential system of government. With this there is separation of power between the executive and the legislative arms of government, where the head of state is also the head of government, contrary to what we have under parliamentary system of government. Moreover, there is room for opposition parties to serve as watch dog through the constructive critism just to pave way for effective governance as a mission of democracy.

From the above, it is equally correct to make comparison between Nigeria political system and other countries, since the practicing political system is foreign owned. For instance, presidential system in Nigeria and United States of America has some contrasting element, such as the vice president remain the senate president in USA, but the situation is quite different in Nigeria.

In addition, do we really need immunity clause, the answer to this will take us back to the previous argument, where one supported and the other kicked against it. In USA, reading through their constitution, there is no provision for executive immunity, in fact, Article II Section 4 of US Constitution states that “the president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction of treason, bribery or other high crime and misdemeanors” however, US Constitution also made provision for Comity Clause which is similar to immunity clause this prevents state from maltreating the citizens of another state, and this can be found in Article 4 Section 2 Clause 1 of US Constitution

In Canada and Britain there is no immunity in the Canadian constitution Act of 1867 and even the amendment carried out in 1982. Therefore any public officer will be held responsible for his actions and inactions

The French constitution has some degree of immunity for the parliamentarian and the President. As for the Parliamentarian, it covers them for their action and contribution to the debate in the parliament. Article 68 of France constitution (liability of president and government) the President of the republic shall not be held accountable for actions performed in the exercise of his office excepts in the case of high treason, he may be indicted only by the two assemblies ruling by the identical vote in open balloting and by an absolute majority of their members. It shall be tried by the high court of justice.

In Russia constitution section 1 chapter 4 article 94; gives immunity to their President at the same time article 92 went further to limit the clause, however, from all the aforementioned factual injunctions, it is lucid enough that Nigeria is not the only nation practicing immunity clause, though it exists in different dimensions. It can also be adduced from the analysis that immunity clause has two dichotomy; the absolute and the limited immunity clause. The absolute style gives no limitation of any kind in applying the clause to the officers or holders of political office in question, while the second type limits the application to some extents such as when the person in question commits treason and misdemeanor.  

However, the propounders of this clause are not feeble minded or mad, though what they have in mind is the love for their state and their citizen, even their leaders to succeed, thereby, preventing him or her from the unnecessary distraction that can jeopardize the development of the nation. But merely looking at advance nations, they believe that government exists for the betterment of the society, therefore they can go any length to satisfy their citizen, even at the expense of other nations. It is also observed that all the public officers must be held accountable for their deeds at any point in time.  For instance, in history, a seating President Moshe Katsat, was forced to resign as part of plea bargain over an indictment for rep, but was afterward prosecuted and convicted for sexual harassment and molestation, while a formal prime minister, Ehud Olment, was indicted while in office, and subsequently prosecuted and convicted over allegation of corruption. More recently in the UK, a former minister and cabinet member, Chris Huhne was prosecuted for obstruction of justice and was forced to resign following the indictment. He has since been convicted and he is in prison. In the United States, former governor of Illinois ruled Rod Bla Blgojevich was while in office as governor, investigated by FBI and was arrested by federal agents and charged with conspiracy to commit mail and wire fraud and one-count of soliciting bribe. He was convicted and sentenced to 14 years in prison.

The Immunity Clause is also applicable to other arms of Government, both the Legislature and the Judiciary. The parliamentarian could not be held responsible for any statement been made on the floor, while the Judge also could not be accountable for the judgment he passed, though it can also be challenged in the higher court               

Interestingly, it was the late Nigerian former president, Umar Musa Yaradua, who as the    serving president first took a different style in far away, Davos, Switzerland, upon his emergence as the president in 2007 when he said “nobody in Nigeria deserves the right to be protected by law when looting public fund”. A week further to argue that immunity granted public office holders breed corruption.

Furthermore the issues of immunity clause has been generating more than enough discuss among the Nigeria Parliament, yet is regarded as no go area, or non negotiable matter. But the observation here is that most of them are egotistic in nature; always looking for what will favour them even at the expense of the masses. There is no doubt that if the door to opinion pool is opened it will definitely lead to the end of immunity clause in our constitution. In other parts of the world, we hardly witnessed the case of distraction against the executive arms, even in the face of limited immunity clause, but here in Nigeria, where the absolute clause exists there are many cases of indicted executives, through their misuse, disuse and abuse of the clause, for instance, the case of late former Edo State governor Diepreye  Alamieyeseigha, will capture our attention, while that of former Niger State governor can never be underestimated, at the same time the issues of double registration of Kogi state Governor cannot be left out, however, some public office holders in Nigeria use the public fund to finance their second term agenda, to mention just a few.

This are part of my credence to regard the immunity as the parable of injustice, moreover there is no way a human being will be granted unquestionable immunity without any case of gross misconduct. Therefore, if immunity clause is not properly addressed, there is liable to be a propensity to the scenario of political brouhaha.