Democracy Without Immunity

The National Assembly is, again, debating the possibility of amending the 1999 constitution. While this is on, immunity for public officers as contained in Section 308 of that law, is in focus as Nigerians call for a revisit of the idea of putting some people above the law by virtue of the public office they occupy.

Section 308 states; (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:

From the provisions of Subsection 3 of the above statute, it is clear that the only persons granted immunity in the Constitution include: the President, Vice-President, Governor and Deputy Governor. The import of this constitutional conferment is that no civil or criminal proceedings should be instituted against them while in office.

This provision has caused a lot of debate, with some calling for the removal of the shield under which these public officials are covered by deleting the immunity clause. A strong reason, they say, is that no one should be above the law.

It should, however, be noted that the reason behind inserting the immunity clause in the first place was the protection of public interest wherein the interest of the nation, in the preservation of its highest offices, outweigh the inconvenience to the individual for the temporary postponement of prosecution and to save such public office holder from harassment while the person is in office.

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While this debate is on, it is pertinent to note that the country is operating the American version of the presidential system of democracy. In that country, the rule of law is paramount. That is to say, no one is above the law.

In Nigeria, there are suggestions that only the President and the Vice President ought to come under the immunity cover. As a newspaper, we hold the view that no one should enjoy whatever immunity there is in the constitution. That word should be expunged from the law altogether.

Referring to the American system again, Spiro Agnew, President Richard Nixon’s Vice was removed from office and jailed for a minor offence – tax evasion. Nixon himself was almost impeached on account of his involvement in the Watergate Scandal before he resigned.

More recently, President Bill Clinton was investigated and almost impeached for abuse of office in the Monica Lewinsky saga. In these three instances cited from the American experience, they were serving officers of state. There was no talk of immunity from investigation and eventual prosecution. As far as Americans are concerned, public interest comes first as office holders should, like Caesar’s wife, be above board.

Fast forward to Nigeria, political office holders at whatever level hide under the immunity cover to commit fraud, murder, and all manner of infractions and expect to get away with them. They, actually, do get away with them. It is on record that a sizeable number of politically-exposed personalities in the country, and we mean those still serving, have criminal records still pending in court. Under normal circumstances, where the rule of law is enforced, they ought not to have been allowed to vie for office in the first place. In which case, the talk of immunity would have been a non-issue ab initio.

We are making this contribution to the debate to counter the proposition that anybody at all, the President and the Vice President inclusive, should be made to be above the law because that is what immunity entails in the final analysis.

In taking this position, we assume that the country is sincerely aspiring to join the league of democratic nations. We use the word aspiring advisedly because there is nothing democratic in a system where the courts and not the ballot boxes decide who wins in elections and are sworn into office to govern. There is nothing democratic in a situation where the chairman of the Electoral Commission, charged with the responsibility of conducting a credible election, abdicates this responsibility and dares any aggrieved person to go to court. There is nothing democratic where the courts brazenly subvert the will of the people.

And as if these are not bad enough, most beneficiaries of that malfeasance are covered by law from prosecution under the guise of an ill-conceived immunity clause that also protects them from corruption while in office. The worrisome aspect of it is that those who enjoy this abnormality still manage to take undue advantage of the inadequacies of the judicial system to get a perpetual injunction from prosecution even when they are no longer in office.

In our opinion, this abuse and misuse of the intents of the immunity clause are disturbing and must end. Nigerians deserve the best democracy has to offer, which includes equality before the law. Therefore, we insist on no immunity for anyone.