Opinion is divided on whether or not to remove the immunity clause in Section 308 of the 1999 Constitution. The section provides inter alia that: “No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office.
“A person to whom this section applies shall not be arrested or imprisoned during that period, either in pursuance of the process of any court or otherwise. No process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.’’
The public officers who are protected under the section are the president, the vice-president, the governors and the deputy governors.
Speaking in support of the retention of the immunity clause in efforts to amend the 1999 Constitution, Mr Nkereuwem Akpan, a lawyer, insists that it is a worldwide practice to protect public office holders from unnecessary litigation while their tenure lasts.
“All over the world, certain government officials are given immunity from prosecution while they are in office. The reasons for that are not far-fetched; we have a lot of meddlesome interlopers and busybodies who will like to drag the officials to court in order to distract them from performing their duties.
“Under our laws, the president, the vice president, the governors and their deputies only have immunity from prosecution while they are in office and not investigation.
“You can investigate them, and then keep the files in view until they vacate office; the demerits of this, however, are that the memories of the witnesses could have been blurred, a lot of files would have changed hands, while some witnesses would have been compromised.
“Nevertheless, if you look at the larger picture, it is better we leave it that way for now,” Akpan said.
Sharing similar sentiments, Mr Emeka Ngige, a Senior Advocate of Nigeria, SAN, underscores the need to retain the immunity clause in the constitution, saying that that some detractors of public office holders would want the officers jailed while in office.
“If immunity clause is allowed to go, it would be abused. For instance, the governors would be unnecessarily harassed,” he said.
Nevertheless, Prof. Peter Nwangwu, a former presidential candidate of the African Democratic Congress, ADC, argued that the immunity clause should be removed from the constitution because “it has done more harm than good.
“No political office holder, including the president and governors, should have immunity from prosecution while in office. Immunity from prosecution for any criminal offence, including stealing, or for contravening the law in anyway, should not be allowed.
“The provision has been abused repeatedly with impunity, so the immunity clause needs to be removed as part of efforts to fight corruption in high places. Anyone who does not like the removal of the clause should stay away from serving in any public office,” he added.
Mr Ikechukwu Odo, a public affairs analyst and a lawyer, also expressed support for the removal of the immunity clause. He stressed that the immunity clause amounts to over-protecting public office holders, who are also bound by the provisions of the constitution.
Odo, however, conceded that there is a tendency for mischief makers to foment trouble if the immunity clause is removed, adding that there should be restrictive clauses attached to the clause, if it must be retained.
“There should be conditions attached to it; particularly when it is apparent that the person in question has committed a crime or breached the public trust. In order words, in criminal and financial matters, where a prima facie case has been established against public officers, they should not enjoy immunity from prosecution,” he said.
Odo, nonetheless, believes that independent bodies should handle investigations in cases like that. Dr Iro Uke of the Department of Political Science, University of Abuja , emphasised that Nigeria is not yet mature for the immunity clause.
He insisted that public officers should be made to explain any irregularity noticed in the course of their duties because they are solely accountable to the people. “Immunity clause is given to leaders because it is assumed that such leaders would be selfless in their attitude to service.
“But in a country like Nigeria , where the democratic culture is just developing, I don’t think that any of the leaders should enjoy immunity from prosecution. There should be a way of calling them to order when they are still in office; they should be questioned on any issues; issues that require explanations on accountability.
“When we mature to a point where those in government are selfless and accountable enough; then, the immunity clause will be desirable and should be introduced in the constitution,” Uke said.
Mr Willy Ezugwu, the Secretary-General of the Conference of Nigeria Political Parties, CNPP, is also an advocate of the removal of the immunity clause. Ezugwu stresses that the immunity clause is a hindrance to efforts to tackle corruption in the country.
“It has proven to be a stumbling block to the effective investigation and prosecution of some persons suspected to be corrupt. What is even more worrisome is that this immunity has now been transferred to persons who ordinarily have no such protection under the constitution,” he said.
At the recent Senate Retreat on the Amendment of the 1999 Constitution in Asaba, the Nigerian Governors’ Forum, NGF, warned against the removal of the immunity clause. The chairman of the NGF, Gov. Chibuike Amaechi of Rivers, said that if governors were not allowed to enjoy immunity from prosecution, they would be easily distracted from performing their duties because of numerous court cases.
“Nigerians are discussing the immunity clause because they are frustrated by what those of us in government are doing. We want the National Assembly to tell us one country in the world whose constitution does not provide for immunity clause,” he said.
Prof. Isawa Elaigwu, a Professor Emeritus of Political Science, University of Jos, who also spoke at the retreat, suggested that the chief executives at all tiers of government, should be immune from litigation on civil matters.
“However, these chief executives should have no immunity when it comes to criminal matters. If investigated and subsequently impeached, affected chief executives should be tried in a court of law. Criminal matters may amount to gross misconduct and cannot be left till the end of such executives’ tenure of office,” he stressed.
Whichever way the argument tilts, observers are of the view that sentiments and parochial interests should be eschewed in efforts to amend the 1999 Constitution, while national interests ought to be upheld. They particularly underscore the need to weigh all the issues regarding the immunity clause critically before a position which will promote nation building is finally adopted. (NAN).