Having expressed my views on executive immunity and Alamieyeseigha Saga on recently, I received emails and phone calls from friends who were signaling possible dangers in the removal of the immunities of our looting Excellencies. One of the emails came from a personal friend who is an attorney at law in Nigeria, UK and two U S States. Another one came from a well known older friend who is a US based professor of political science. The backgrounds of the others are not known to me but I am sure they are learned, patriotic and intelligent Nigerians based on their logics and the presentation of their arguments. I must mention here that the reasoning of all of them is based purely on patriotism and altruism. The main argument of each of them is that the immunity is good for the country in order to prevent the Governors and the President from unnecessary and frivolous prosecution which may distract their attention from governance. One of them submitted that if the immunities of their “excellencies†are removed today, there will be so many cases in court that they will never have time to attend to state matters until the end of their tenures. In view of this, we should allow them do what they like and prosecute them after their tenure in office. By that time, I think they would be residing in UK or America. Having this in mind, I tired to deviate from my training as an economist to a temporary research in law and political Science. I will like to share my findings with you all: UNITED STATES OF AMERICA Reading through the constitution of USA (and the Florida State Constitution), I did not see anywhere the constitutions provide for executive immunity from prosecution. In fact Article II, Section 4 of US Constitutions States that : “ The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanorsâ€. This implies that they must have been tried and found guilty before impeachment process will commence. If they are immunized against investigation and prosecution (civil and criminal) as stated in Nigeria Constitutions, this will not be possible. Article III, Section 2 of US constitutions even went further to state that they will be tried by Jury not by court. “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. The State of Florida Constitutions (Yes, every U S State has its own constitution) did not differentiate between a corrupt Governor, Commissioner or ordinary civil servant. There is no immunity for anyone. Any corrupt public officer will face the law as stipulated by Article II Section 8 dealing with “Ethics in Government†CANADA AND BRITAIN There is no immunity in the Canadian constitutional act of 1867 and even the amendments carried out in 1982 .Any public officer will be held responsible for his actions and inactions. I am not sure if the unwritten constitution of Britain will immunize the Prime Minister or the Queen from criminal prosecution. Although the popular saying is “the queen is always rightâ€. FRANCE The French Constitution has some degree of immunity for the Parliamentarians and the President. As for the parliamentarians, it covers them for their actions and contribution to the debate in the parliament. Article 68 of France Constitution [Liability of President and Government] is presented belowâ€
(1) The President of the Republic shall not be held accountable for actions performed in the exercise of his office except in the case of high treason. He may be indicted only by the two Assemblies ruling by identical vote in open balloting and by an absolute majority of their members. He shall be tried by the High Court of Justice.
(2) The members of the Government shall be criminally liable for actions performed in the exercise of their office and deemed to be felonies or misdemeanors at the time they were committed. The procedure defined above shall be applied to them and to their accomplices, in the case of a conspiracy against the security of the State. In the cases provided for by this paragraph, the High Court shall be bound by the definition of felonies and misdemeanors, as well as by the determination of penalties as laid down by the criminal law in force when the acts are committed.
The words of the constitution (2) speak for its self. The President and other public office holders in France are liable for their criminal conducts and they can be prosecuted in the High court of France. (QED) NIGERIA Section 308 of Nigeria constitution forbids criminal and civil prosecution of the President, Vice President, Governors and Deputy Governors until they leave office. In a country ridden by corruption, embezzlement, lack of accountability and outright looting, this is like building a shield or military bunker for rogues and Vagabonds In Power (VIPs). Section 308 of Nigeria constitution quoted below: 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. Summary The United States constitution allows investigations of public office holders. President Andrew Johnson was indicted of power abuse and was later impeached in 1868. Richard Nixon was investigated and indicted of misuse of power and obstruction of justice. He resigned to preempt impeachment in 1868. Recently in 1998, President Bill Clinton of US was investigated and found guilty of improper relationship with Monica Lewinsky. He was subsequently impeached. At the state level Gov James Ferguson of Texas was indicted for embezzlement and later got impeached. In 1923, Gov John Walton of Oklahoma was impeached after he had been indicted by a grand jury. Gov Evan Meacham of Arizona was also impeached in 1988 after he had been indicted by a jury. Without investigation, none of these would have been possible. Why should we protect our own governors from Investigation? I am convinced that the constitutional drafting committee meant well when this section 308 was added to the 1999 constitution of Nigeria. They did not know that this opportunity will be abused and used to the disadvantage of the people by the VIPs. Since this has outlived its needs, we need to take it out right now. You can start this by visiting www.nigfes.org to show your solidarity for Nigerians for Ethical Society in removing the clause. Sincerely Akinyemi Akinlabi Florida, USA
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