Immunity …. or Impunity

Section 308 of the Constitution immunises the Nigerian President and Vice President, as well as state governors and their deputies, from civil and criminal proceedings, arrest, imprisonment, and court process. This means they cannot be sued or prosecuted for any wrong they do while in office. They cannot even be served with court process. They can get away with murder. So is this an immunity clause or an impunity clause?

The idea of immunity from legal process is, as a general rule, abhorrent to modern legal civilisation. It is also incompatible with republican constitutions. The origin of this class of immunity traces back to the era of absolute monarchs, when it was held that the king could do no wrong, thus the term sovereign immunity (the expression ˜executive immunity’ is a derivative). That was the time of the so-called ˜divine right of kings’. An element of divinity was attributed to the sovereign.

From the point of view of Nigerian legal, constitutional and political history, the sovereign in question was the King (or Queen) of England. By virtue of the Republican Constitution of 1963, Nigerians ceased to be subjects of the British Crown. Today, Nigerians are citizens of a free, independent, democratic and republican state. Nigerians are not subjects of any human ruler: we are subjects of God.

That Nigerians are subjects of God is not just a nice thing to say or a euphonious platitude, and I am not just saying it- it is perfectly true. Our Constitution describes Nigeria as one indivisible and indissoluble sovereign nation under God. So while Nigerians are subjects of God, Britons are subjects of Queen Elizabeth II.

The Nigerian Constitution derives from US-style presidentialism, but the framers of the Constitution had a vested interest in borrowing some arcane notions, not from the American, but from the British Constitution. One of such tenets is sovereign immunity. Even in Britain, sovereign immunity has been largely watered down, by virtue of the Crown Proceedings Act of 1947, which allows civil suits against the British Crown. Even before the 1947 legislation, petitions of right were maintainable against the Crown. The draftsmen of the Nigerian Constitution, some of whose provisions were penned under the barrel of a gun, also forgot that in Britain the Head of State and the Head of Government were two separate offices, whereas under the Nigerian Constitution the President is both the Head of State and the Head of Government. The implications of immunity are therefore scarier in the Nigerian context than in the British, where, if you could not sue the Queen, you could at least sue the Prime Minister.

The Nigerian Constitution was prepared by people most of whom were actuated by self-interest and personal ambition. They knew they would run for office, and if they won or rigged their way in, they planned to loot the treasury; so it was in their interest to install for their own protection immunity from prosecution. Today the same ilk of people, with the same species of interest and ambition, dominate the National Assembly being called upon to review the constitution. No wonder they want to leave executive immunity intact.

The irony is that in Great Britain, which is still a monarchy, even if a constitutional one, and whence we borrowed the obnoxious principle, sovereign immunity means less than executive immunity does in Nigeria. In other words, it is easier to sue the Queen of England than to sue the President of Nigeria.

In Malaysia, another constitutional monarchy, a 1993 constitutional amendment allowed actions against the King or any Ruler of a component state. Prior to 1993, a Ruler, in their personal capacity, was protected from any proceedings by the sovereign immunity dogma.
Republican constitutions do not usually include the executive immunity clause, at any rate not to the wide extent found in the Nigerian constitution. The service of legal process on President Nixon of the United States would not be tenable under the Nigerian constitutional regime.

In any jurisdiction in the third millennium AD, an immunity clause such as we have in the Nigerian constitution is indefensible. In a jurisdiction like Nigeria where the system of checks and balances has not been fully developed, and where the other arms of government have not been substantially empowered, it would amount to class suicide to retain the immunity clause. It would amount to an impunity clause.

Chidi Amuta once stated that “a residual culture of official impunity inherited from military rule has been worsened by constitutional immunity granted to public officers with questionable background and worthless pedigree. So, people watch helplessly as those they ostensibly elected to govern them behave like reckless brigands licensed by the constitution to commit heinous crimes”.

In the current constitutional review exercise, and in view of Nigeria’s condition as a transiting democracy, it is vital that the immunity clause be uninstalled from our constitution. At the minimum, it should be amended to protect the president and governors only in the lawful performance of their lawful duties. The extant clause shields these officers from prosecution for money laundering, drug running, gun running, wife snatching, corruption, murder, and other heinous crimes.