THE IMMUNITY CLAUSE UNDER THE NIGERIAN 1999 CONSTITUTION: A CURSE OR BLESSING – Conclusion

Continued from Yesterday.

Again, experience has shown in Nigeria that it is not only protected officers that are corrupt. There have been cases of graft against local government chairmen who are not protected by Section 308, Directors of parastatals, ministers and so on. If these people who are not protected are corrupt as the protected ones, then the problem lies somewhere else and probably not with the immunity clause. To fight corruption in Nigeria, we must stay above politics in whatever shades. Politics has be clouded our quest for fighting corruption. It is just a matter of belonging to the ruling class and you get off the hook of anti-graft agencies. We also have a long way to go in investigating crimes. Interestingly section 308 of the 1999 Constitution does not prohibit investigating a protected public officer. Where he has been successfully investigated while occupying the office, upon leaving office he can be arrested and arraigned in the court of law. Generally crimes are not statute barred; therefore such a corrupt officer will not have the defense that he cannot be prosecuted because of the passage of time.

On the other side of the argument are those who maintain that immunity should be retained under Nigerian law. From their argument it can be deduced that expunging the clause will allow public officers to be distracted from performing their official roles. This argument is true to a certain extent because some mischievous politicians may harp on that to frustrate a performing public officer so that they can score a political point by saying that he is not performing after they have successfully distracted him.

Removing this clause will give an excuse to an officer that is not ready to work as he will continue to let the whole world know that he wants to perform but some people have taken him to court. We have experienced this and we are still experiencing this. Many governors who were dragged to election petition tribunals immediately after their elections cried out that they were distracted and that they needed to settle down to work. Some still have electoral cases pending against them and they have consistently argued that these cases put them under pressure and did not allow them to function optimally. This is the kind of problem we may encounter if the immunity clause is expunged from the Constitution.

The immunity clause was inserted by the drafters of the Constitution in their wisdom, but unfortunately, Nigeria has a society where every provision of the law is abused to suit selfish ends. Though our law may not be perfect as there is no perfect law under the sun, the operators of the law must ensure that they obey the provisions as we have them, rather than apportioning the blame on the “inadequacies” of the law. We must ensure that there is a real separation of powers as guaranteed by the 1999 Constitution, with the principle of checks and balance. Where any of the protected officers is found wanting in the discharge of his duties, the law has put machineries in place to check him. And this is the legislature which represents the people who voted the officer into office. For instance, the 1999 Constitution provides for impeachment against such public officers if they commit offenses that are deemed impeachable.

The retention or removal of the immunity clause is a thorny issue that needs to be addressed carefully. We personally believe that rather than dissipating our energies on it, we must look inwards and ensure that we have a paradigm shift and begin to focus on good governance. A society that has good governance, whose leaders are accountable, will not belabor itself with whether to expunge the immunity clause or to retain it

Culled from The Lawyers Chronicle, written by Solomon Kehinde

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