HORRORS OF REMOVING 'IMMUNITY CLAUSE'

[Dan-Borno]

Section 308 of the Nigerian Constitution (1999) provides as follows:

(1) Notwithstanding anything to the contrary in this Constitution,
     but subject to subsection (2) of this section -

(a) no civil or criminal proceedings shall be instituted or continued
     against a person to whom this section applies during his period of office;

(b) 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; and

(c) no process of any court requiring or compelling the appearance of a person
     to whom this section applies, shall be applied for or issued:

Provided that in ascertaining whether any period of limitation has expired for the
purposes of any proceedings against a person to whom this section applies,
no account shall be taken of his period of office.

(2) The provisions of subsection (1) of this section shall not apply to civil proceedings
against a person to whom this section applies in his official capacity or to civil or
criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice-President,
Governor or Deputy Governor; and the reference in this section to "period of office"
is a reference to the period during which the person holding such office is required
to perform the functions of the office.

______________________________________________________________________
The above constitutional provision is now under critical attack in Nigeria, as their
is a high expectation that sooner or later the immunity clause will be expunged
from our constitution. 

However, for us to take this 'suicidal' mission, we have to put so many things into
consideration.  Yes, I agree with so many, that our Executives (President, Governor
Vice President, Deputy Governor etc) are mostly thieves if not all of them.  But is
removing the immunity clause going to solve our problem?  We should not forget to
put behind our minds the complex political scenarios we are facing in this country.

If this clause is removed from our constitution, there is every indication that the
little work our presidents and governors are doing will come to halt, while at the
same time, money will be lost in the process.

There is a motive behind the inclusion of immunity clause in our constitution, there
is no doubt about this, so why is our President allowing himself to be blindfolded in
this process? I quote His Excellency:-

"I have confidence that the next constitutional amendment will strip these public
officials of this immunity and I am personally in support of that".

I doubt much if the President will be speaking comfortably from somewhere if this
clause is non existing (Husnaa & Co are the first to go to the courts).

Let all of us face reality, instead of removing the immunity clause, why dont we
religiously adhere to the principle of separation of powers?  The constitution is very
clear about it, if really there is check and balances, the most easiest way to
punish the President or Governor is by impeachment, so, why is our Distinguished
Senators and Honourable Members reluctant about their jobs?

I will not support the removal of immunity clause and never be a party to it.

[HUSNAA]

Husnaa and Co will be the first to go to the courts.. hahahahahahahahahahahaha!!! Thank you for such an incredible vote of confidence!  ;D ;D ;D ;D
Right! U've guessed correctly, that I am all for the removal of that clause... God I CANT WAIT!!! I am salivating all over. BUT! You havent been fair to me honestly. I am not a person who would flippantly try and cause mischief to others for the sheer hell of it. Number 1 if a gubernatorial/presidential candidate is the ppl's choice, I would have no bone to pick with that, in so far as the votes showed that he was elected fairly and squarely and transparently, even if he wasnt my choice.
2ndly, depending on his/her performance in office, I'd even grow to support him/her despite the fact that we may
be from opposing parties. The reason being that its the overall good of the ppl that one is aiming at, not the fact that my party is not the winner therefore I wont have anything to do with the opposition even if the opposition is doing a sterling job.

The problem with Nigerian politics or African politics in general is that its not transparent, or honest or ppl serving. The immunity that our leaders enjoyed has been abused beyond belief. Its the chief reason why there was so much corruption for all these years.

The immunity clause works in the European and American democracies because the majority of their citizens are educated and know their rights and know how to fight the politicians if they dont deliver. Their judicial system works with clockwork regularity efficiency, transparency and honesty.  If political corruption occurs as when a president re-elects himself dishonestly as Mwai Kibaki did in Kenya, the ppl rise up an execute an Orange Revolution like what happened in the Ukraine with  the opposition leader Victor Yushchenko. It was a peaceful sit in - sit down revolution. It got the attention of the world and it forced the Ukrainian president Victor Yanuckovych out of his ill gotten second term office. In Kenya, look at what is happening. A bloody revolution and the incumbent is not resigning. Shows how much he really cares for the ppl and how much he really cares for his selfish interests. And you can see that the whole judiciary, the police, and army and etc are all in the pockets of  Mwai Kibaki.. so he stays put in power while all the blood letting goes on around him. What is more, he has the immunity clause that works against his being impeached or held accountable, now or in the future. Who benefits from this clause? The common man? Certainly not!!! Why do we have civil servants from the president down wards? isnt it so that they serve the common man? Is the common man getting the service? between the masses and the civil servant, who is the actual servant and who is the master? Why does the whole system run on its head instead of on its feet? its because of this immunity clause that allows corruption to go unchecked.

Since the immunity clause does not work in the African setting and has been seen not to work, but rather on the contrary is the architect of most of our present economic woes, then it should go. We havent tried the system whereby the leaders rule without the immunity. Let us try that and see that it doesnt work either, before we start mouthing off about how much of public money is going to be spent at the judiciary instead of it being spent in the service of the ppl. That to me is a very laughable statement, and I just shake my head at the audacity of ppl even voicing it. How much of the public money ever found its way into the service of the ppl Eh? And wasnt the reason because no one was held accountable for how it was spent? So why should ppl turn round and say that the money that would go to the ppl ordinarily would be diverted from its primary purpose and be used to defend the governor/ president?

If a governor is reported for some misdemeanor then before he is even summoned by the court, the matter has to be investigated and that surely doesnt eat into the govt's coffers surely since its  not from the accused govt that the money for the investigation would be sourced. If the accusation is found to be true, then legal proceedings are taken against the incumbent and if they are not true or trivial or malicious, then the person who started the legal proceedings should be held accountable and in some cases must pay for damages or offset the costs incurred by the judiciary. Another thing is that the judiciary bodies that would listen to cases against governors should have federal status not state status... just like the EFCC.. or the EFCC should be expanded to accommodate such. 
We already have the seeds of accountablility in place with the coming into being of the EFCC. So going a step further to remove immunity from incumbent leaders will only make them more careful of how public moneys are spent.
I have much more to say, but time isnt on my side. got to get on with other things.
Salaam (to DB especially for forcing my hand on this issue  ;D ;D ;D ;D ;D)

[Dan-Borno]

What a good morning to Auntyn Muhsin, that is we come
to fish out those who advocate the flushing out of the
immunity clause in our supreme constitution of our dear
father land.

Though Auntyn Muhsin have spoken widely, but i see no
where you stated categorically that the inclusion of the
immunity clause in conjunction with the legislatures are
the main issues that fuel the present problem in Nigeria.

As i based my argument before now, those who framed our
constitution are men of wisdom and integrity couple with
experience and foresigth, their motive for formulating the
immunity clause is very clear - it is not to protect the
said public officers to vandalise or steal public money and
hide under the immunity clause.  The main purpose of the
immunity clause is not to allow other people disturb them
while performing their constitutional roles.

For example, Section 28 of the Land Use Act that empowers
the State Governor to revoke any land that he deems fit for
overiding public purpose were tactics given at the discretion
of the governor without an option of consulting the legislators.

While on the other hand, even if the immunity clause is in force,
it will not curtail the activities of the legislators in impeaching
the governor or president on any allegations that is considered
impeachable.  However, the inability of our legislators to perform
adequately is what led to people like Husnaa to start the
propaganda of the clause to be removed.

During the first tenure of Obasanjo, there was a time the house
moved for and mentioned about 101 impeachable offences of
Mr. President.  If truly our constitution has given the houses of
legislation such an immence power, why wont our representatives
used it against any erring governor or president rather than
tempering with out sacred book of law?

[Muhsin]

Though our bigger folks have said every bits of it and others like Waziri, Sheriff05, Nuruddeen to mentiom few names, are coming to say their words also, yet I feel it deem to say more but few words here.

I was wholly before against that clause of immunity. But DB's words are impeccable. Now I realize its meaning and so on. Though time, as Husnaa said above, is also now aginst me. So bye.

[gogannaka]

Husnaa i doubt very much if removing the immunity clause will help matters in Nigeria.Infact it will make matters worse than you think.

Developed can survive without the the kind of immunity our leaders enjoy however,in a country like Nigeria,remove that clause and i promise you it's the opposition that will only use it as a weapon if they don't win the election.They will not raise a case againt the incumbent for the beterment of the people but rather for the sake of them winning the election.

Its like you favour the opposition struggle always.
In Nigeria anty Husnaa, opposition is not a struggle for the benefit of the masses.It is a struggle for the attainment of power.The candidates decieve the masses promising them all sorts of things,most of the time luring the masses into violence har sai abun ya zo ya fi karfin su.

Amman fa yanzu duk inda aka ce za a yi investigating gwamna ko shugaban kasa,tabdi,badakala kenan.
Yaushe za a bar shi ma ya je aiki?

[HUSNAA]

That is what u all think. Ba a gwada ba balle a san na kwarai. As far as I am concerned removing that clause is the best thing that will happen to talakan Nigeria. Imma what u say is correct, well too bad, anyi abusing din priviledge to the extent that ya dakushe kasar, so I cant think how much further kasar za ta dakushe just by removing that clause.
As DB yace men of foresight and wisdom ne suka zauna suka shirya constitution.. I doubt that very much, if they were wise enough, then the system would have worked. Kai dai duk inda aka sa self interest, to In sha Allah, what ever it is zai ruguje.
Kuma ma ai its not only a question of impeaching the president or public office holder, its a question of holding him/ accountable for his actions after he is out of govt, which the clause seemed to have taken care of by declaring that no account shall be taken of his period of office.
Saboda haka in ma anyi impeaching who ever, he still gets to keep his ill gotten wealth and goes scott free to boot.

[sheriff 05]

Assalamu alaikum,

This is a very interesting topic indeed, sadly though, constitutional issues are not my forte and I know very little about the technical details of our constitution. However, on the issue of the immunity clause, I have to say, (despite our opposing views on the legality of Mr president...  ;D ;D) I agree with my kanuri brother, Dan Borno on this one. As he rightly said, the immunity clause is there to ensure the leaders concentrate on issues at hand, rather than be distracted by incessant legal challenges from every Tom, Dick and Harry. Critically though, it also protects the office of the leader from being ridiculed while that leader is in office, hence serving to re-enforce the notion of respect for elders, a norm for our society. Removing the clause could be a further source of chaos as opposition candidates will surely use it to incite societal unrest. Removing it may have been ideal in societies where people have "a lot more to do" than "feeding off" government (as is predominantly the case in most of the north).

However, I also agree with Hajia Husnaa that something is wrong with the clause as it is presently very ineffective and is being abused by all tiers of government, both the executive and the legislature, and it gives the judiciary very little to "feed on" when legal challenges against leaders are brought forth. But where we differ Hajia, is that rather than outright repealment of the law, I advocate an ammendment, which I call a "terminal audit".

A terminal audit will be a constitutional law mandating all public office holders to allow independent auditors to conduct a detailed audit of their accounts at the end of every financial year. Appointments are made by a central independent (judiciary led) governance and regulatory body, empowered by the constitution. The result of each state's audit is disclosed publicly and submitted to the judiciary, before a constitutionally mandated date, serving as evidence and/or proof of the condition of the State's or nation's accounts as at the end of every fiscal year. In the last 3-6 months of every 4 year elected tenure, the judicial authority mandated with such powers, will then invite independent internationally certified auditors to conduct a comprehensive 4 year audit of the account (independent of the yearly audit conducted by each state). All audits are published for public consumption and issued to all interested parties, as independently verified statements of accounts, including the true amount dedicated to every expenditure over the last year (and 4 year term). The yearly audits will ensure that a State has the chance of reviewing itself and will allow the citizenry to cross examine each state from within, boosting accountability. (as a minor benefit, It will also provide a medium to improve education levels within such backward states where audits and judicial oversight are relatively new). The 4 year audit will then serve as an independent verifier of the yearly audits conducted, and if found to be different will serve to check abuse from the office holders, but most crucially, will prevent ineptitude, incompetence and improve the standard of the yearly audit, which I hope to be conducted by National audit firms.

Additionally, the constitution must also then include minimum jail sentences well as financial penalties to every state executive that misses the yearly deadline or is unable to provide (judicially) acceptable explanations for any discrepancies. The legislature have no role in such a law but the executive will then be forced to ensure that all expenditure from every parastatal, tier of government and institution within his jurisdiction is appropriately managed.
This suggestion is built on the assumption that while the constitution protects against prosecution from ALL criminal cases, nearly all leaders (Past and present) are typically accused of one particular recurring offence, i.e. Corruption. Hence, the law will still protect against unwarranted and unnecessary legal challenges against any leader while in power, but will provide a stern medium to ensure accountability for every office holder while in office (and beyond) and also provide a "noose" with which they could potentially hang themselves after leaving office. In theory, if implemented properly, everybody could win!!!

What do you think?

[Dan-Borno]

Wow, agreeing with me today by a member of the
west-wing, yeah we are truly running an open forum
here  ;D   ;D   ;D  i just hope other members of your
wings will not accuse you of supporting some one
from your zone.

However, despite our agreement, i think you have
exagerrated the whole thing in the sense that we
already have the office of the Auditor General in every
State and including FCT which serves as the Auditor
General of the Federation.  These Governor's are very
clever that you cant get hold of them just  because of
non balance of account through auditing.

What I want you to critically look into is the function
of the Legislature and their power to impeach the
governor or president vis-a-vis the immunity clause.

[sheriff 05]

Sorry Alanguro, but you have returned me to my camp, and I disagree with your coment above, because fundamentally the two issues of the "immunity clause" and the ability to "impeach" are completely different issues, governed by completely different laws and clauses within our constitution.

The immunity clause does not protect the leader from impeachment AT ALL, rather it protects him from legal and or criminal prosecution. This legal protection provided by the immunity clause, is not a requirement at all for impeachment. The two laws are aimed at two different tiers of government. The immunity clause prevents the judiciary from sanctioning the person of the governor or president (and not his office, as the law allows the government to be sued); while the impeachment issue, governed by other clauses, is for the legislative arm of government, which is empowered by the constitution to be able to deal with executive excesses. The latter, (impeachment clauses) are clear enough and are not under review. Their ineffectiveness is not a constitutional limitation but a simple lack of political will to carry it out. The constitution is quite thorough in that area in that the provision for impeachments are quite magnanimous, if only the members of parliament are willing to carry it out. Hence for its failure, don't blame the law, blame the law makers, pure and simple.

For the second issue, i.e. the immunity clause, as I said, covers a completely different arm of government and revolves around different issues for which legal involvement is required. Please, allow yourself to follow my logic here.

The logic is this: we both accept the benefit the clause provides, yet we still acknowledge its limitations. But if you think deeply, the main (and arguably, the only) crime for which we seek to prosecute our leaders after office, is corruption, is that not so? Hence my logic is, solve the problem by attacking it from a different direction. Rather than repeal the law all together, provide amendments to specifically target the crime. That way you have the best of both worlds, hence my suggestion.

I agree with you that the office of the auditor general exists, but again you fail to see the logic. The office at the moment remains a government subsidiary, controlled by the executive and hence exposed to the exact same executive manipulation, and the corrupt tendencies we are crying against. Also, while the audit could be done via a restructuring the existing auditor general's office and repositioning it with a new mandate under a new set of constitutional guidelines to perform their tasks, I strongly believe that it will be fundamentally wrong for any government to in effect "audit itself". How transparent is that? It will ineffect be like Ribadu probing obasanjo while Obasanjo was in power? is there any wonder he was found "clean"?  What we want is a "constitutionally empowered", body, under the auspices of the only neutral professional tier of government we still trust, the judiciary. Hence my proposal for an independent body to call for professional prequalified, internationally certified, auditors to provide these services in an internationally certified manner, providing the audits with the credibility it needs, so it can boost governance and improve the quality of accountability. 

A constitutional provision will give it the required authority to regulate the affairs of everyone. That is what is lacking at the moment, Accountability, pure and simple. It "in theory" will be similar to the constitutional power given to Hamman Tukur in the revenue allocation and fiscal commission that had allowed him to do his work in defiance of Obasanjo and his cronies, so many times, and in a very impressive fashion. The punishments suggested via jail sentences and financial penalties, along with yearly deadlines, provide absolute minimum benchmarks from which judges can give sentences, serving as a deterrent to potential law breakers. In suggesting this Dan Borno, I am attempting to look at the wider picture, and a potential way to provide the best of both worlds, ie protection to concentrate on the task at hand, and accountability to fight corruption.

[Muhsin]

Take few of your valued time and visit this link; its about this thread's topic I got from my other Discussion Forum. Here it is...http://www.nigeriavillagesquare.com/articles/akintokunbo-a-adejumo/the-immunity-clause-to-stay-or-not-to-2.html

[sheriff 05]

Alanguro, salam alaikum, na ji shuru, does silence mean consent?... :) :)

[Dan-Borno]

No way, my silence is to allow other forum members
to make their comments, may be we can easily get
someone to back you or me so that the discussion
will be fully continued.


Sharu! did i say the immunity clause will protect the
leader from impeachment? No i dont think so, what
I always try to highlight is that the legislatures are
there to make laws on how the state will be govern
and by implication checking the excesses of the governor
or president as the case may be.

My argument is, if at all the legislatures can check the
excess of the governor/president and by so doing, the
constitution has even empowered them to impeach the
governor, then why the need for removing the immunity
clause from our constitution?

All this theories you propounded, i need to give it a name,
and i dont know how we can even practicalise it, it seems
there is too much conflict of power.

You argue that the office of the auditor at the moment is
a government subsidiary, yes, i agree with you, but that
doesnt discourage them from doing their job.  I bet you that
our auditors report are never put into consideration these
days, if not, almost all their books are intact. (if you get me).

Sharu, you always stress the constitution given enough
power to a government department, i fear when these same
departments will abuse the process to their personal use as
the case of EFCC.

[King]

Dan Borno, why would you oppose the abrogation of the immunity clause? This is the same clause that provides political cover for criminals looting public treasury nationwide, and yet you oppose the idea of abolishing it? I don't follow your logic. Perhaps you directly or indirectly benefit from the chaotic and unchecked looting that continues to ruin the country and drive it to the brink of explosion.
One of the reasons why the EFCC was established was to deal with the menace of financial misconduct in government. This same agency was restricted from day one from effectively and independently doing its jobs, and as such the EFCC achieved very insignificant success.

When I read comments like yours, it strengthens my view that most Nigerians are either not truly ready for change, or are not even sure what change means. If we truly desire a transparent society with a functional and transparent government, why erect obstacles in the path of transparency? Corruption is a festering sore that has eaten deep into our national psyche and has significantly destroyed all of our institutions in all sectors of our society. The question is, how do you treat a festering sore? Do you just window dress it with new band aid while the sore continues to eat deep into your skin? Or do you attack the sore head on by treating it all the way to its root cause?

It makes perfect sense to abolish the useless immunity clause from the constitution. In past years, the non of the thieving Governors could be prosecuted for financial crimes even if the evidence of wrong doing was clearly established because 'immunity clause' gave them cover. I have never in my life seen such lunacy as the so called immunity clause, and no sane or progressive country has such rubbish in their constitution. This immunity allowed Governors to transfer billions of Naira in tax payer money to foreign personal accounts with impunity and without any consequence. How is this in the best interest of the Nigerian people?

I am in complete support of the removal of the immunity clause because it serves no meaningful purpose for the Nigerian people that have for so long been abused and taken for a ride by sinister people parading themselves as leaders. I believe every defaulting public officer should be removed from office immediately they are found in violation of public trust. I think it is pointless to allow a public officer to continue serving in his/her capacity once they've been found guilty of misconduct. I believe the district attorney's office should charge any corrupt office holder and sentenced accordingly.  There should not be leniency because Nigerians should be held to account for their actions.

What we've witnessed in the past several decades is a system where serious breaches occur, yet there are no consequences. We've witnessed people loot public funds so callously, but rather than face very severe consequences to deter future criminals from threading that path, we simply downplay the effects of their actions and begin talking about forgiveness. We are a totally confused nation, and a people with funny and short memory. We should enforce laws, and not seek to protect criminals that break the laws.

Immunity even when applied in progressive societies does not protect public servants found guilty of misappropriation of public funds. Immunity does not cover intentional or willful infraction by a public servant. When laws are willfully broken, immunity flies out of the window. Immunity is to protect a public servant against malicious lawsuit brought about by an individual(s) in that official's discharge of his/her public duty (oh, and that public duty cannot be determined to be against public interest). For example, if there is a sudden epidemic outbreak in an area of my state, and I as Governor on the advice of health experts take action to quarantine certain communities in the interest of public health until containment can be established, immunity protects me from being sued later by aggrieved members of the quarantined communities or by their sympathizers as a result of some deaths that may have occurred during the quarantine. Immunity is applicable here because the absence of it would lead to a unnecessary lawsuits that may prevent me as Governor from exercising executive powers that could clearly save lives. Notice, all my action here is geared towards greater public good. This however is complete departure from the understanding of immunity in the Nigerian political context.

[Dan-Borno]

Wow, were do i start ????,
let first welcome Mr. King to Kanoonline forum.
your reply signifies how patriotic you are to the Nigerian
nation and your zeal for a better nigeria.


Watch out for my reply please.

[gogannaka]

Newspaper report:
Auwalu Yadudu, a law professor, on Thursday opposed President Umaru Yar'Adua's position that the immunity clause be expunged from the constitution, in a bid to arrest abuse of office and sleaze by chief executives.

The clause shields the President, Vice President, Governors, and Deputy Governors from criminal prosecution while in office – although the Supreme Court ruled recently that the clause does not prevent investigation of seating chief executive.

Debates over it have heightened after Yar'Adua said he wanted the clause removed when the constitution.

The President's position had garnered support from the progressives while lawyers and rightwing politicians received it with scepticism because of its perceived implication on governance.

Yadudu, a Harvard trained lawyer and former Legal Adviser to General Abubakar Abdulsalam (rtd), said he would prefer the National Assembly adopt the 2005 position of the National Political Reforms Conference (NPRC), prepared by its Judiciary Committee, of which, he was a member.

Former International Court of Justice (ICJ) Judge, Bola Ajibola, headed the committee.

According to Yadudu, the committee had successfully built on the apex court's ruling, by recommending that anti-graft agencies can seek court support for prosecution of a chief executive.

However, Yadudu agreed that the past eight years have witnessed unacceptable abuse of the privilege conferred by the clause, but insisted that "the answer to this problem is not to remove it".

His words, "The immunity clause is meant to shield chief executives from frivolous litigations which may hamper their performance while in office. However, the last eight years have shown that chief executives used the clause to engage in all sorts of corrupt practices. To me, the answer is not to remove it, but to build on the Supreme Court's decision that the clause does not protect such persons from being investigated. The only thing is that they cannot be tried while in office.

"What we need, as a people, is to build on this judgment.

The judiciary committee had recommended that anti-graft agencies can, after investigating and establishing a prima facie against any seating chief executive, request the court to lift the clause so the affected person can be tried. If found guilty, the matter would then be transferred to the relevant State Assembly or the National Assembly (in case of the President Vice President), to start impeachment proceedings. But if he is acquitted of such charges, the immunity would be restored," he said.