It is perhaps expedient for me to begin this article by acknowledging that I am also contributing to a debate which has been raging for a long time, and to which thousands of Nigerians all over the world have contributed their own opinions. While I do not want to appear repetitive, it is instructive to note that I will definitely not have the last word on this matter, for as long as the debate continues to rage. Hence I am not daunted to contribute to it, because my little voice will add more to the debate.

The debate about “expunging, excising, removing, repealing the immunity clause in the 1999 Constitution of the Federal Republic of Nigeria” has been going for a long time,  well before President Yar’Adua went to Switzerland and stood up to be counted as an opponent of this expansive immunity clause. Why he had to take that position well away from Nigeria is a bit baffling to me, but then he was speaking in front of representatives of multi-national corporations called “Partnership Against Corruption Initiative”, so what else do you expect him to say when confronted by powerful multi-national entities who are obviously scared of, and rightly concerned about  their investments, current or potential, in Nigeria of today noted for its corrupt culture?

These representatives should be rightly concerned, what with scandals involving some of them linked to various Nigerian Government functionaries, being exposed on a daily basis – Wilbros, Siemens, etc, and the fact that their own governments are beginning to look into their sharp practices involving their officials and Nigerian officials to secure fat contracts. So it is expedient for Mr President to re-assure them, and he must say the right things. And thus, Mr President said “One of the raging debates in Nigeria today is the issue of constitutional immunity from prosecution conferred on the president, vice-president, governors and deputy governors. I have confidence that the next constitutional amendment will strip these public officials of this immunity and I am personally in support of that.”

Mr President is saying the right words, as he always does. Nigerians’ concern is if he meant it or how soon will this be implemented.

To recap, Section 308 (1) of the 199 Constitution offers a virtual carte blanche to the executives to get away with virtually everything, including murder, because what it confers on them is that they are free from criminal and civil prosecution, no matter what offence they committed whilst in office. They cannot be compelled to appear in court, be arrested, prosecuted or imprisoned if they commit any criminal or civil offence whilst they enjoy the privilege of being in office.

There are several ways to look at this issue of constitutional immunity from prosecution granted to our leaders. Some schools of thought have said that Nigeria is not the only country to have such doctrine in their constitution. I have not had time to read a lot of other countries’ constitution, but one thing I can say is that the American Constitution, which we had apparently borrowed and adapted to suit our own environment, does not have anything like this.  My little bit of research only turned up the Privileges and Immunity Clause (US Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) which prevents states in the US from treating citizens of other states in a discriminatory manner, with regards to basic civil rights. The clause also embraces a right to travel, so that a citizen can enjoy privileges and immunities in any state he or she wishes. The text of the clause reads “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”.

Maybe this is the type of clause that should have been inserted into our Constitution in 1999 by those who drafted it. As we know, such rights, privileges and immunities are not being enjoyed by Nigerians in Nigeria today, but that is another story. Ask an Igbo man living in Bauchi or Borno or Sokoto State, for example, and see if he enjoys the same rights as a   Bauchi indigene; or a Yorubaman living in Anambra or Abia or Cross River State, etc.

Well, there we have it. The US Constitution does not confer wide ranging immunity to Federal and State Executives from prosecution. For example, in 2005, the Governor of the State of Connecticut, Mr John G Rowland, was found to have received gratifications totalling $100,000, not even in cash, but by accepting free chartered trips and vacations and renovations to his cottage. The FBI immediately descended on him and did not wait for his gubernatorial term to expire because of an “Immunity Clause” as we have in Nigeria. He had to resign and upon this, was put on trial, and eventually sent to a year in jail (I hope with hard labour), after he himself admitted betraying the trust of the people he was meant to serve.

I shudder to think if he were to be a Nigerian Governor. As it is, save only Mr Alamieyeseigha of Bayelsa State, who was first impeached (and only after a lot of strong-armed tactics by the combination of ex-President Obasanjo and EFCC’s Nuhu Ribadu), even after they have left office, and having been accused, indicted and bailed to reappear in court, I am yet to see any of these “execu-thieves” go through a proper trial and sentenced. In fact, just last week, the Federal Government withdrew money laundering charges against ex-Governor Dariye of Plateau State, and that is after all the overwhelming evidence of corruption, including video and pictures  against him, not to talk of being arrested and then jumping bail in the UK.. One of his accomplices has even been sentenced in a London court.

So the removal or expunging of this much abused immunity clause should be seen as a step in the right direction. Normally, in a normal country with well-behaved political leaders (and I am using this term very lightly), there would not be a problem with retaining such a clause, in fact, strengthening it, but in a corruption-ridden society such as ours, it has proved to be more evil than good. We have seen how it has been abused by irresponsible politicians, and the consequences on our society. It has caused untold sufferings to Nigerians – look at what misappropriation of public funds by these Executives have done to our healthcare system, educational system, road and other transportation, power generation and distribution, food and water availability, in fact, every facet of possible human and material development of a nation that want to call itself a progressive nation.

Furthermore, and perhaps the most important, is the fact that majority of Nigerians want this clause removed. Many of us believe that its removal will bring a great measure of sanity to governance and will prevent these office-holders as seeing themselves as above the law and as mini-gods, who can do and undo, playing with millions of human lives. It will prevent crooks, who had been convicted for all kinds of offences in foreign countries and in Nigeria from even nearing a ballot box to contest. Removal of the immunity clause will also mean that executives will not be able to instigate violence and murder against political opponents. Right now, we know that several state governors are behind militancy, thuggery and murder, and if the immunity clause is removed, even if they are not directly involved in these crimes, they can be hauled in by association.

Again, if we base the argument on the premise of morality in law, in a democracy, if we say that no one is above the law, why then are we allowing the Constitution to confer certain immunity on some people which then gives them the perceived right to be above the law? If no one is above the law, then if the immunity clause is removed, then we are all operating on a level playing field, and that means if positions of responsibility is given to a person, elected or appointed, that person would be made accountable for his or her stewardship while in office, and not after they have left office and caused irreparable untold damages and misery through their irresponsible behaviour. The immunity clause, as we currently have it has protected a lot of these politicians. Who would guess one year ago, of the monumental sums now beginning to surface that these thieves have stolen? We only hear of it because they are out of office.

Not only this, removal of this irresponsible clause will act as a deterrent, no matter how small this effect will be (I said this because Nigerian politicians will always find a loophole to commit their crimes against the Nigerian people, irrespective of any law imposed on them, e.g. by god-fatherisms, etc) to others with the aim and intent of going into politics or government to make money. In most cases, a lot of die-hard politicians, who feel they do not have any other means of income, except politics, will not be able to make their way into office by crooked means. This explains why, not satisfied after eight years as Governors, some of them, under the pretext of still wanting to serve Nigeria, and are now Senators or Ministers. There is too much attraction to the oil money, everybody wants part of it – crookedly.

Having said all these, I have read with some interest, some arguments against the removal of the immunity clause, and some of them do have some merits. Some have said that removing the immunity clause from the constitution will undermine executive capacity (Kayode Oladele, 2006). While Mr Oladele admitted that the misconduct of some state governors has generated growing concern among Nigerians, he is of the opinion that the reason behind the clause was to enable the president and governors to perform their designated functions effectively without fear that a particular decision or action may give rise to criminal liability. In a way, this might be a very good reason, but in my opinion, there are a lot of powers granted these executives  - executive fiat - within the constitution in the first place, that if they perform effectively and efficiently in the first place, they are well protected from such diversions. It is a matter of law and constitutional adherence. The problem has always been that our executives always flout the law and constitution of the land on a regular basis either because they are ignorant of the provisions or they deliberately do so because they know they can get away with it. I do not see this as a problem if executives are committed, sincere and honest in executing the functions which we elect or appoint them to carry out in the first place. The power of the people will always back them.

Another school of opinion has maintained that removing the immunity clause will have little or no effect, because of the simple-minded notion that we still have the same Nigerians in the system, who will now seek to rely on god-fathers and an inefficient and corrupt judicial system. I say no. Every little helps, so they say. If the removal of immunity is going to contribute only 2 percent to the fight against corruption, so be it. We cannot fold our hands and expect manna to fall from heaven. We cannot just sit there and let these people kill us while we put it in God’s hands. If removal creates fear in their hearts, and they still risk committing crimes against the Nigerian people, at least the fear of God has been put in their hearts, and if caught, they will be dealt with severely, harshly and appropriately by the people.

Yet another cautious opinion on the removal of this infernal clause is that Nigeria should not be seen as acting below such laws and practices in, say the UK and the USA , so as not to make us a laughing stock because we will be acting below general international standard practice. The premise here again is that other countries may have, or may have had, such a clause, and may or may not have expunged it, but as mentioned above, there is nothing like this in the US Constitution and the UK apparently has no written constitution. (Because the UK has no single codified documentary constitution along the lines of the Constitution of the United States, it is often said that the country has an "unwritten constitution". However, most of the constitution does exist in the written form of statutes, court judgments and treaties. The constitution does have some unwritten sources, though, including Parliamentary conventions and the royal prerogatives.)

I will admit that removing the immunity clause is perhaps not the panacea to the problem of corruption in Nigeria. There are still many other ways to reduce corruption to a manageable level, (I have always said that it is impossible to have zero-level corruption in any society in the world) such as an effective and incorruptible judiciary, effective anti-corruption policies and law enforcement agencies, re-orientation of our people via education, rigorous screening of political candidates to prevent thieves and idiots from getting to positions of great responsibility, poverty reduction, imposition of tough fiscal and moral responsibility and accountability on executive and other office holders, etc. What we need to aim for instead is zero-tolerance. Removing the immunity clause is a positive step in achieving this zero-tolerance attitude and approach.

The immunity clause may have immense value and benefits, if and when it is not abused (and again, this may depend on which side of the garden you are) but what we have seen of eight years of democracy in Nigeria, this clause is redundant, abused, misused and totally out of tune with the aspirations of the Nigerian people.

I had written before (Democracy, Corruption and the Rule of Law in Nigeria, www.nigeriansinamerica.com,   08/08/2007 and Nigeria Today Online) that the American Constitution, for example, has undergone various and numerous changes over the centuries and will continue to do so till the end of time to reflect sociological, economic, cultural and human changes as inevitably they will happen. Why then do we think that the Nigerian situation must be different? Constitutions and laws are versatile documents; they are not permanent instruments. They can be manipulated to suit anybody. They can be amended. They can be interpreted in very different ways to have different meaning to different people at different times. They are not rigid articles of governments and the judiciary. In fact, that is why lawyers are on opposite sides everytime in a court of law, one arguing for and the other arguing against; interpreting the law to suit themselves or a particular case. The same goes for Constitutions; legislators, supposedly versed in the Constitution will interpret it differently to suit their own political agenda. Jurists have different interpretation and opinion of same sections of the same law. This is what makes laws and constitutions very robust.

This step of expunging the immunity clause should have been taken a long time ago but for the selfishness and indecision of the last Administration. The debate has again been awakened, and we must not let the opportunity go begging again. The Honourable Speaker of the House of Representatives, Dimeji Bankole said recently, after the speech by  Mr President in Switzerland, and  to our chagrin and alarm, that the House would only consider whether to remove the immunity clause or not at the end of the trial of formers governors who allegedly enriched themselves in office. Dear Honourable Speaker,  waiting for that to happen is equivalent to not doing anything at all and is telling Nigerians nothing. It is also retrogressive and such statement is not worthy of you. In fact, it could be viewed and interpreted as delaying tactics and I would strongly urge you to consider another option, otherwise you will find yourself on the receiving end of some very hard knocks from your countrymen and women. You simply cannot wait until the end of these trials, because those trials can drag on for years, because of the financial and political clout of these ex-governors. For instance, just today, 04 February 2008, the case against ex-Governor James Ibori has been adjourned indefinitely because of a national strike by the Judicial Staff Workers Union.  Also, there are many separate trials and they cannot end at the same time, so we are talking several years before the last one could end. And even if they end, and some of them are acquitted, as they may well be, does that prove that the immunity clause has had no effect at all on their behaviour while in office.

From all these, it is not hard to see that corrupt political leaders will make effort to see that the immunity clause is retained in the Constitution. That is the cloak under which they have been hiding for years and perpetrating their crimes against the Nigerian people, and sneer at and insult our laws and institutions and collective intelligence. The Immunity Clause is a licence for stealing, killing and maiming, and we are not being sentimental here. Recently, they have even added the phrase “Rule of Law” to give themselves more time to hide. The corrupt will do anything; go any length, to maintain the status quo, which suits them to the detriment of the Nigerian people. Trust Nigerian politicians to be ever protective of each other; whoever came up with this idea in 1999 deserves to be shot.

Again this brings me to what I have been taught since childhood – Let the truth be said always. Our officials, and indeed most Nigerians are always quick to declare our religious, political and tribal affiliations, yet when it comes to the issues of corruption, we are very slow in condemning it, hence the reason why it is increasingly difficult for us to fight corruption in our country. Corrupt Nigerian officials, past and present, politician, civil servant or military often conveniently and to their advantage, neglect their religious injunctions, despite bandying the Holly Books in our faces and claiming to be holier-than-thou. This is often exacerbated by fawning and sycophantic acolytes and hangers-on defending the indefensible just because they are gaining from the misconducts of these corrupt officials. What you do on earth is what you will be judged against in heaven or hell. Each individual, according to the Holy Books, must account for their own sins and not the sins of others.

No. The Immunity Clause must be expunged from the Nigerian Constitution, and there is no better time than NOW.