Misuse Of Immunity Clause In Nigeria

 By Tonnie Iredia

Many Nigerian scholars are agreed that a major problem of their nation is that the constitution of the federal republic of Nigeria 1999 was not freely authored by the people. Rather, it was imposed by the military which had cause at certain periods of history to intervene in the politics of the country.  For this reason, a number of provisions in the constitution are unacceptable to some Nigerians.

However, what stands out clearly as the people’s contributory negligence to the imperfection of their constitution is that many of us further complicate the situation by adding to the same constitution, many unacceptable things that were originally not included by the drafters of the document. A good example is seen in the way many leaders who are not covered by the immunity clause enjoy it without qualms.

The immunity clause refers to a constitutional provision which exempts certain political office-holders from any civil or criminal proceedings while they are in office. Those who enjoy such immunity in Nigeria are the president and his vice as well as state governors and their deputies – a list that is clearly explicit. 

Among other things, Section 308 of the Nigerian constitution provides that ‘a person to whom the section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; adding that no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.’ From several articles in learned journals, and even newspapers, it is obvious that many Nigerians deprecate the blanket freedom given to the affected leaders.

The main objection of those opposed to the immunity clause is the adverse effect it can have on the nation’s anti-corruption war. Interestingly, there are certain societal institutions especially law enforcement agencies and some citizens who have since developed a convention by which they add more persons to the privileged list. 

Of course, no one is likely to seek to prosecute spouses of office holder who enjoy immunity but then, the constitution is completely silent on the extension of the privilege to any other Nigerian. Such unofficial extension is however true of virtually all top office holders in Nigeria. The nation’s predicament therefore is that the same people who think the immunity clause is unacceptable are quite often responsible for extending it to others who are not officially entitled.

On their part, Nigerian political leaders especially those in the legislature abhor accountability and have never hidden their ambition of seeking to extend the immunity clause to their leaders. They found a convenient   opportunity during the Obasanjo administration when the Independent Corrupt Practices and Other Related Offences Commission ICPC sent invitations to top law makers to appear before the commission on account of petitions written against them. 

This reportedly angered the law makers who immediately began a process of amending the relevant section of the constitution so as to extend the immunity clause to their own presiding officers and their deputies. They also hurriedly made efforts to amend the law setting up the ICPC thereby suggesting that the legislature is more important than any other arm of government.

This encouraged all Nigerian VIPs to behave as if they are above the law and that it is actually an anomaly to request them to abide by the rule of law. The most common response from every Nigeria VIP who is required to follow approved societal laws, rules or guidelines is ‘do you know who I am?’ This has made many citizens to assume that it is usual for top office-holders to never be accountable. 

This is easier to comprehend when it is remembered that such upper-class citizens have police orderlies attached to them notwithstanding that the police force itself claims to be understaffed. There is therefore very little bolt driver Stephen Abuwatseya could have done the other day than to endure undeserved slaps from a federal legislator, Alexander Ikwechegh, APGA-Abia.

It is possible that as soon as Ikwechegh introduced himself as a member of the federal house of representatives, Abuwatseya may have assumed that the VIP he was facing was entitled to legislative immunity. But that is not correct because unlike what the executives enjoy under Section 308 of the constitution, legislative immunity merely exempts legislators from legal action for their official activities while on duty and within the scope of the legislature. It is because the legislator could not claim legislative immunity while waiting for what was said to be a package of snail that he is now facing several actions for his abuse of power. The same is true of judicial immunity which protects judges only from liability resulting from their judicial actions.

It would be wrong to give the impression that there is no limit to the privileges of the executives because it is specifically stated in the immunity clause. The position of the law is that the privilege ends at the end of their tenure; after which they are liable for any criminal activities they had engaged in while in office.  Unfortunately, the relevant institutions have not been able to summon enough courage to hold former presidents or their vice to account for their misdeeds if any.

 Sambo Dasuki, the National Security Adviser to former President Goodluck Jonathan was detained for several years for what he claimed were instructions he was asked to handle. But then, Jonathan was never questioned on the subject. Similarly, former President Muhammadu Buhari is yet to be questioned on activities of former CBN governor Godwin Emefiele. It is as if our former Presidents have immunity for life; yet our constitution is specific that their immunity is restricted to their tenure in office.

A more inexplicable example is that of Yahaya Bello former Kogi State governor who has since he left office been declared wanted for failure to answer certain questions from the Economic and Financial Crimes Commission EFCC. The report that he is yet to be arrested because he is under the cover of his successor Usman Ododo is laughable. This is because Ododo’s immunity is not transferable to any other person by whatever name called.

If the unofficial story of Yahaya Bello’s freedom is true, are we suggesting that that some terrorists and insurgents will be left off the hook for as long as they are hiding behind a sitting governor? Of course, except for a few governors who have problems with their successors, many of our former governors would soon employ the template of delegated immunity to postpone the end of their immunity indefinitely.

During the week, Governor Babajide Sanwo-Olu of Lagos state provided some new insight to what governors can do with their immunity. This followed a report circulating in the media that the governor has initiated legal action against the EFCC, claiming that he has been threatened with arrest, detention, and prosecution once his gubernatorial term ends. The average onlooker would have thought that that was the real spirit behind the clause stopping anything from being done to him till the end of his tenure or is Sanwo-Olu looking for immunity after office? I honestly think he should take life step by step. Right now, he appears from a distance to be doing well, which he should just continue with. He should ignore idle talks on threats about the future even though the selective treatment of former governors is instructive.

One can only hope that governor Sanwo-Olu knows that he and other colleagues can be quietly investigated from now till 2027 after which findings against them can be used to prosecute them when their tenure ends. To my mind, the 2002 celebrated case of Gani Fawehinmi V IGP where the judiciary ruled that what the immunity clause can strike down is prosecution and not investigation throws enough light on the subject.

In other words, the appropriate time for any governor to worry is at the end of his tenure. Any premature worry can only be attributed to the fact that Nigerians as a people are never really bothered about following either the letter or the spirit of our constitution. The only thing we are good at is blaming the origin and drafters of our constitution whereas we are not prepared to abide by even those provisions that we ourselves accept to be explicit and unambiguous.

*Dr. Iredia is a commentator on public issues