Legislators and the Immunity Clause

[Richard Akindele]

The Nigerian constitution is not only a legally-binding covenant that governs virtually all aspects of the lives of Nigerians, it is also a document of hope and faith; faith in the essential goodness of the Nigerian man.

In paragraph after paragraph of reasoned statements, the framers of the constitution convey the assumptions that animate the constitution; that the document will help to organise the actions of rational and responsible men and women; that their activities will be dictated by considerations of what will best advance the national interest.

In no other part of the 1999 Constitution was this faith in the Nigerian man expressed as poignantly and as clear as it was expressed in Section 308. Titled simply, "Restrictions on Legal Proceedings," it insulates persons holding the offices of President, Vice President, Governor, Deputy Governor, from civil or criminal proceedings during his period in office.

The framers of the 1999 Constitution saw those offices as hallowed portals where only the very morally-fit can be elected to offer service, provide vision and leadership and to sacrifice so that many will enjoy the good things of life. To make that possible, the occupants of those offices should be immune from litigations and other such mundane distractions.

What was not envisaged at all by the men and women who wrote the constitution was that in 1999, a horde of the most depraved Nigerians would seize the hallowed chambers of power, desecrate its portals; forge certificates, loot the treasuries they swore to nurture and protect; maim and kill political opponents in order to attain and retain power; act in ways that blot the distinct line that separates private and personal interests from public affairs.

Once Nigerians realised that men with morals of highwaymen have seized power and are plotting tenure extension, they began a clamour for a review of Section 308 of the 1999 Constitution.

Through the exertions of the indefatigable Gani Fawehinmi, for instance, the Supreme Court has ruled that Section 308 does not stop the police or any other legal authority from investigating a beneficiary of the immunity provisions of Section 308.

In the course of the public hearings associated with the ongoing efforts to amend the 1999 Constitution, Nigerians have made clear their distaste for Section 308; for they are witnesses and victims of the unprecedented looting of state resources that have been going on in Nigeria since 1999.

They have watched in utter helplessness as monies that should provide services and uplift the living standards of Nigerians are hauled overseas by serving governors - to places as far-flung as South Africa, United Kingdom, USA, Dubai - to purchase properties and make other investments that grow those economies at Nigeria's expense.

So monies meant for the development of local government areas end up feeding the vast and increasingly insatiable appetite of Nigeria's serving governors who hide under the canopy of Joint Allocation to steal from the very people they were "elected" to protect and provide for.

Even the Presidency is not exempted from this spreading rot as only a few Nigerians think it was proper that a serving president solicits funds for a personal library complex. This is the context for the clamour for the repeal of Section 308.

Imagine then the shock and dismay of Nigerians when they woke up to the news that the National Assembly legislators have included for themselves in the proposal for constitutional amendment a clause that immunises them from prosecution while in office - even as they are denying same, for good reason, to serving governors.

This self-serving decision raises very important questions: were the legislators serious and sincere or is their move a gambit to force the governors to drop their opposition to the removal of the immunity clause? Our hope is that the NASS legislators are not really asking for what they already have; for by convention and practice, legislators are immune from criminal prosecution for things said or done in the course of duty. So to even contemplate an amendment to add what they have already betrays amazing corporate ignorance; and coming at the time it did - when Nigerians are united in their clamour for excision of a heavily-abused immunity clause - portrays our legislators as people who are painfully disconnected from the aspirations of the people they pretend to represent.
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