Closely related to the phenomenon of corruption in the Nigerian polity is the eight-letter word  ‘immunity’. Despite the world of difference in their dictionary meanings, Nigerians have found a cunning way of equating one with the other. The perception is that wherever immunity is found, corruption is not wanting. This perception understandably has its roots in the savagery unleashed on the public purse by elected executive members of the government under the Obasanjo regime. The fact that a sitting governor cannot be arrested or brought to trial while his mandate persists is naturally misconstrued as a liberty to commit economic and financial crimes behind the seat of power. The restriction of the hunt for corrupt public servants to past governors by the EFCC did not help matters either. The picture painted to the public is that only Governors who are covered by immunity could indeed nurse the idea of stealing from the public till. This is a half-truth.

In a country of 140million people where we have only 36 governors who control less than 30% of the federal revenue, with the remaining 70% shared by the federal and local governments, it amounts to making a mountain out of a molehill when we restrict the searchlight on past governors in our quest to unravel the mysteries that surround the disappearance of public money without corresponding output in terms of physical development. Take for instance the recent disclosure by President Yar’Adua that the immediate past regime put a whooping 10 (or is it 16) Billion Dollars in the drainpipe purportedly to revamp the ever ailing power sector. This money could not possibly have passed through the hands of the state governors. One would be sitting the truth on its head if the Ministers and their Permanent Secretaries as well as Directors General of the federal agencies responsible for power generation, distribution and regulation are exonerated from culpability. But none of these public officers is covered by executive immunity!

It is therefore unsophisticated to assume and conclude that immunity is the root cause of corruption. In other words, removal of immunity is not an absolute panacea for corruption. The collapse of due process and adoption of arbitrariness in the conduct of government business is the cause of corruption. The controls put in place in our constitution through checks and balances between the executive and legislature, if implemented faithfully, would leave no loophole for ‘opportunistic’ accumulation of wealth by public officers whether they have immunity or not. Most acts of corruption are perpetrated because the other party, who is supposed to be a check, looks the other way on purpose to receive the pecks from the proceeds of the crime.

Take the relationship between the Governors and the State Houses of Assembly as a case study. There is no way a sitting governor will successfully loot public funds if the house is up and doing in their constitutional oversight functions. But what we have witnessed in the past eight or nine years is a highly compromised legislature who for a ‘morsel of bread’ has sold their birthrights to the thieving governors and thus cannot question them as the popular saying goes that one living in a glasshouse should not throw stones. Thus even in cases where acts of corruption were reported against sitting governors, the assemblies could not muster the courage to remove them constitutionally because their hands were ‘tied’ by the pecks they curried from the offending chief executives.

Taken in the right context the governors cannot be said to have any absolute immunity in the real sense of it as long as the impeachment clause subsists in our constitution. Whenever it is established that a Governor has committed gross misconduct including acts of corruption while in office, the house has the moral and constitutional obligation to strip that governor of immunity through impeachment and thereafter he can be prosecuted. Had the impeachment of former Bayelsa Governor, Alamayiesiagha and subsequent prosecution followed due process, one could have gladly referenced to it as a typical example of the limited nature of the immunity enjoyed by the governors, the president and their deputies. This is to say that provided the impeachment is carried without coercion or intimidation from an external body like we witnessed the EFCC do under Obasanjo, it is an effective tool against corruption.

So Nigeria as a country does not have reasons to resort to the fire-brigade approach of plucking out the immunity clause from our constitution. This proposal is reactive rather than proactive and essentially motivated by fear rather than patriotism. It negates the fundamental principle of lawmaking that laws are not made to target an individual or group of persons but for the general good of all. Removal of immunity is targeted at executive members of the government and should be rejected in the same vein as the third-term clause was rejected because it was targeted to an individual, that is OBJ. The proponents of the third-term who believed Obasanjo was a ‘good’ president and deserved more time did nor reckon with the fact that they were proposing a scenario where we would have had to remove the clause thereafter or even shorten it to one term in the future if a ‘bad’ president happened to ascend the presidency.

So I was personally embarrassed when President Yar’Adua voiced support for the removal of immunity from the constitution. I believe his advisers thought it was supercalifragilisticexpialidocious for a sitting president to support removal of immunity. But apart from the hype and bloated sense of self-righteousness inherent in such public utterance and maybe the seeming contribution to whittling down the stench of illegitimacy around the current government, this proclamation has little to achieve in the furtherance of democratic framework and strengthening of Rule of Law. It in fact contradicts the governments commitment to the rule of law because, if the laws in our constitution are enforced and obeyed strictly by all, there will be no need to call for removal of immunity. So Yar’Adua by this proclamation is sending the wrong message that he does not believe in the efficacy of the rule of law being preached by his government!

But the rule of law is the key to solving our corruption problems. We need to evolve a culture of due process and accountability in all facets of the society including public and private enterprise. We know for example that tax evasion is an economic crime but most companies and business concerns in the country are suspected not to pay the correct tax as and when due. And this can only be done if there is active connivance of the tax officers who prefer to collect ‘settlement’ from the offenders than to prosecute them according to the law. In this scenario, both the tax offender and the tax collector are not covered by immunity and so immunity could not possibly be the cause of tax fraud for which the government loses billions of Naira annually. It is known that police collect N20 from drivers on the highway in lieu the required documents which most of the drivers don’t have. A non-licensed driver can therefore drive from Lagos to Kano provided he is ready to settle the ‘law enforcement agents’ on the way! This is corruption. But the driver and the policeman are not covered by immunity!

We need not to read the immunity clause independently of other complementary sections of the constitution. There are enough barriers to corruption in the 1999 constitution without recourse to removal of immunity. Constitutional immunity for elected executive members is desirable in order to give the leaders a free hand to run government without undue interference from persons opposed to government policy for political or personal reasons. Looking back to the feud between the past VP and the then President, one is dead sure that without immunity, OBJ would have ordered the arrest of Atiku on the weight of an illegal and fraudulent indictment which was later overturned by the courts. Such an act could have amounted to the worst form of corruption namely a person given the mandate by the people to lead could be denied that mandate by fiat by one man on a personal revenge mission.

That the call for removal of constitutional immunity is coming after the eight-year (mis)rule of  Obasanjo is a pointer to the fact that there was something in the Obasanjo era that was lacking in the earlier republics between 1979 and 1983. The emergence of untouchable godfathers, and institutionalization of electoral fraud by the past regime birthed the culture of impunity and corruption. Corruption begins with the kind of fraud Iwu perpetrated in April 2007 in the name of general elections. Political thugs and errand boys were installed governors against the clear signs of disapproval from the people these governors are expected to lead. Even the process of nomination of candidates within the ruling party did not follow the party’s constitutional guidelines. The products of such monumental electoral corruption are not expected to offer anything near transparency and accountability while in power.

I repeat that the root of corruption in Nigeria is electoral fraud. When the people are allowed to choose their leaders, the same people have the power to sanction them when they deviate from the norms of good governance. But when this right is taken away from the people and vested in the hands of godfathers who have no allegiance to the people, the leaders they impose on the people perceive their accountability to rest with their godfathers rather than the people. Resources meant for the people are thus misappropriated in active connivance with these godfathers with impunity because the people have no say. This scenario was amplified in Oyo state where the strongman of ‘amala’ politics was brazenly demanding for (and I believe he is still receiving) his ‘share’ of the state allocations from the Governor and nobody could stop him.

I want to be counted among those who are against the removal of constitutional immunity. I am aware that most Nigerians in their haste to stamp out corruption would rush to acclaim the move but in the long run, we would not be better for it. It is surprising that some lawmakers who should have studied the Nigerian Constitution properly to realise the true essence of immunity are clamouring for its removal. It is the height of superfluity to assume that the chaos the removal of immunity will generate in the polity will stabilise our democracy.

As the Senate is set to review the constitution, I advise them to be guided by patriotism rather than mere rhetoric. They should work at giving us a sustainable constitution that will endure the test of time and stabilize our democracy for the benefit of future generations rather than a constitution crafted out of fear and emotional reflex stimulated by the moral dislocation of the previous regime controlled by a rapacious cabal of incestuous characters.

Robot  # 1 | 16.02.2008 05:08

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