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Issues in the immunity debate
By Bayo Oladeji
Snr.
Correspondent,
Abuja
The travails of
Governor Joshua Dariye of Plateau State have again raised the dust for another
constitutional debate especially on the justification of the immunity clause in
the 1999 Constitution. President
Olusegun Obasanjo set the ball rolling when he kicked against the inability to
humble the troubled governor despite all the established criminal allegations.
It was a visibly angry Obasanjo who said that “a governor, who should normally before being sworn
in, declare his assets correctly, was found not to have declared them before he
was sworn in and to have declared falsely. I don’t know what the law would say about the validity
of his stay in office but the constitution prescribes that no elected or
politically appointed person should have foreign accounts and that if you have,
you have breached the constitution.
Now, can anybody breach the constitution with impunity and get away with
it?”
Section 188 states
clearly how a governor can be removed from the office - through the
process of impeachment by the State House of Assembly. But where the parliament fails to do
this, then the opposition or critics of a governor will become helpless and
wait till the governor either drops dead or completes his tenure. Hence, the reason why Mr. President
went for the jugular of the Plateau State’s House of Assembly.
Hear him again:
“Is it right when a governor is interrogated and in fact released on bail
for the state assembly of the governor to say it is not their business and that
State Assembly is being paid by the public…?”
The Minister of
Justice and Attorney General of the Federation, Chief Akin Olujinmi, had
earlier written a letter to the House of Assembly tasking members to begin the
impeachment process against Governor Dariye for allegedly violating the
constitution of the land. But the
lawmakers turned round, accusing the Presidency of making a scapegoat of their
governor. They had said:
“Selective punishment affronts our sense of justice and fairness and
offends against the fundamental tenets and principles of true democracy.”
In fairness to the
lawmakers, they have the right to say that the order to sack the governor was
not coming from the House of Assembly.
Probably the story would not have been the same if they have been spared
or even allowed them to remove the governor instead of slamming the
controversial state of emergency order on the democratic structures in Plateau
State.
Again, the
lawmakers might be right on the theory of making a scapegoat out of the governor. This is because the
presidency has been accusing some 26 governors of money laundering, among other
untoward practices. The question
then is, is Dariye the only sheep that should be led to slaughter slab?
Even the state of
emergency order was described as unjust by legal titans in the land. The list includes Chief F. R. A.
Williams, Chief Gani Fawehinmi and Prof. Ben Nwabueze, all Senior Advocates of
Nigeria (SAN). But Mr.
President has support in his minister
of justice, Chief Afe Babalola (SAN) and Chief Solomon A. Awomolo (SAN). But even those who agreed with Mr.
President did not see why the same sledgehammer could not fall on some states
that have similar crises hanging on their governors, which leads to the
question again that, is Dariye a scapegoat of our time?
Political pundits
believe some governors deserve outright impeachment if the Houses of Assembly
in their states are alive to their responsibilities. Instead, some of the governors turn round to sack some
principal officers of the parliament if they appear unfriendly.
Since 1960 to date,
the only impeachment against the chief executive of any state or region in
Nigeria was that of Alhaji Balarabe Musa in the old Kaduna State. In fact, it was the hostile
parliamentarians of the National Party of Nigeria (NPN) that moved against the
minority Peoples Redemption Party (PRP) governor to settle a political
score. This was during the Second
Republic.
During the First
Republic, the old Western State House of Assembly made a move to remove the
Premier and his deputy, Chief L. Akintola and Chief Remi Fani-Kayode. The move
failed and the area did not know peace until the military took over.
In this dispensation,
about three governors have survived impeachment, but some deputy governors had
gone through the process, especially between 1999 and 2003. Coincidentally, their removal was
masterminded by their governors.
Today in the country, the fact is that the House of Assembly may not be able to impeach the
governor as long as the members remain under the beck and call of the chief
executive. But interestingly, the
impeachment plot against the President in 2002 was not allowed by some powerful
forces within the PDP.
In the recent past,
the Independent Corrupt Practices Commission (ICPC) has cried out of its
powerlessness in the face of the immunity clause in the constitution protecting
the governors. Its Chairman, Justice Mustapha Akanbi, in fact threatened to
prosecute a governor once his tenure is over in 2007. Its co-traveller, the Economic and Financial Crimes
Commission (EFCC) too has similar limitation.
Section 308 of the
Constitution stands against any civil or criminal proceedings, arrest or
imprisonment or court appearance of the holders of the offices of the
President, the Vice President, the governor and the deputy governor.
To amend or remove
this notorious clause, the two-third members of the two chambers of the
National Assembly are required, including the support of 24 Houses of
Assembly. This, no doubt, is a
Herculean task. So, what is the
way forward?
To some people,
such as a legal practitioner and member of the House of Representatives,
Nggilari James Bala (PDP, Michika/Madagah, Adamawa State), the clause was
inserted by the military to protect their interest since they never thought
democracy could work. This member
of the celebrated Oputa Panel argued that what was needed was a minor amendment
to the 1979 Constitution instead of wasting the taxpayers’ money in the
pretext of constitutional conference that midwifed the 1999 Constitution.
According to his
colleague in the House,Adeseun Ayoade Ademola (AD, representing
Ogoduwa/Surulere, Oyo State), the clause should be left as it is, at least for
now until when the constitution is overhauled. He tasked the beneficiaries to
wave their right if the need arises to protect their integrity.
His words:
“The constitution is full of contradictions and flaws that should be
expunged, but the process is cumbersome.
So, the immunity clause must go once the whole constitution is being
amended. But while that is on, I
challenge any governor or deputy even the president or his vice to waive the
right away once their integrity and credibility is at stake.”
But that advocacy
is a high-risk venture, going by the preponderance of corruption among Nigerian
politicians. The only exception
was when the ex-convict charge was preferred against Governor James Ibori of Delta
State and the governor threw overboard the privilege of immunity, insisting
that he be joined in the suit to clear his name, which he did successfully.
When Chief Tony
Anenih filed a lawsuit against Governor Orji Uzor Kalu of Abia State over the
governor’s allegation that Anenih wanted to kill him, Kalu used the
clause as a shield.
In far way America,
President Bill Clinton did similar thing over the celebrated Lewinsky saga. In
the end, it was a case of no victor, no vanquished. But he paid dearly for it in dollars.
During the military
era, the power of immunity for the heads of government was put on trial. That
time, history placed both General Murtala Mohammed and his successor, General
Olusegun Obasanjo in the position of authority. It then became a test of will
when a Nigerian accused Murtala of corrupt practices. And to save his skin, the
late General threw the so-called immunity to the wind and subjected himself to
scrutiny. But like it is said, what is food for one person may be a poison to
the other. And when it was the
turn of General Obasanjo, as the Head of State, to appear before the Justice
Ayo Irikefe Tribunal to defend himself over culpability in the
“missing” N2.8 billion in the NNPC account, it was Obasanjo who
adorned himself in immunity
regalia, announcing to the whole world that he could not be questioned.
What bothers
observers now is the morality of the present moves by the Presidency to render
that instrument impotent so that those perceived to be unfriendly to the Aso
Rock are dealt with with the same instrument which shielded the President
during the N2.8 billion saga but which must be used to whip erring opponents
into the line now. The question
now is what should be done to Clause 308 that shields chief executives from
criminal prosecution?
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