Removal of Immunity Clause: A Further Threat to Federalism
After eight years of looters masquerading as Governors, there seems to be a catharsis on the relevance of section 308 of the 1999 constitution, which provides immunity for serving executive officers. Many legal minds and professionals have joined the clamour for its removal, among them are Prof Pat Utomi and justice Olufemi Akitan. They argue that the clause has become an impediment for accountability and provides a cover for the looting of public funds, removing such immunity can go along way in our political uplifting. However, such simplification of the immunity clause must be jettisoned and it must be noted that abuse does not destroy use. Granted that the immunity clause is to forestall frivolous suits against a serving Governor or President, it is also serving as one of the remaining pillars of our federal structure of government which was dealt heavily by Major-General Aguiyi Ironsi.
The intention of fighting corruption and executive-looting is a noble one and cannot be faulted. However, if the eight years of Obasanjo's presidency has taught us nothing else, it is that power fears competition, confrontation and insubordination. Imagine a scenario where there was no immunity clause in Obasanjo's regime, he could have not gone to the strenuous length of trying to intimidate state legislatures to impeach a serving Governor, which failed in most cases and was arduous in others. In a twinkle of an eye Obasanjo could have instructed the attorney-general to file a criminal suit against any of the perceived corrupt governors - Ayo Fayose, Chris Ngige, Joshua Dariye etc, right or wrong, and the federal government being in control of the police will have no difficulty in arresting such governors. What will such scenario portend to our already stretched federalism? The simple answer will be that federalism will just fizzle out and give way to a monolithic government with governors as mere heads of individual states at the mercy of the federal-monarch.
Like Obasanjo, Umaru Yaradua may wake up on the wrong side of the bed and conclude that some governors are corrupt and criminal proceedings will commence. Giving this palpable danger, the idea of immunity clause as a check on frivolous civil suits is superfluous, the real danger is the federal government and hence the need for the immunity clause to put it on check. Any attempt to tamper with this check will ridicule our federal structure by empowering the federal government to remove a state-elected executive governor. Experience and time have proven that leaders often start with good and noble intentions and when the lure of power takes over, if unchecked causes great damage. The initial symphony and rhythm turns out cacophonous, and the case is not far-fetched with our present federal government with its idea of the rule of law.
The beauty of democracy lies in strengthening institutions. Democracy is an institutional system. The immunity clause as expressed in the constitution refers to the occupant of the office of the executives - federal or state. The executive institution will enjoy the immunity and not to an individual. The immunity is not designed for an Ibori or a Fayose or Nnamani rather to the office of the state governor. Hence, if an Ibori or an Okafor happens to be the head of that institution, thereby acting in the name of the office, he or she enjoys the immunity. The problem with Nigeria and our democracy is our penchant for neglecting the real causes and solutions to problems and start searching for them in other places.
Why should we succumb to the danger of handing the eviction of a state governor to the people who did not elect him or her in the first place? The good thing about democracy is that it hands over the removal of a person from an office to the people who elected such a person. Take the legislatures for example; any senatorial zone or representative zone can recall the person representing it after following the due process, the same goes with the governors. The people through their representatives - legislators (senators or house of representatives) can also, after due process recall - in the technical term of impeachment, any President or Governor who has been found wanting on the terms of agreement of his being elected, namely the constitution. Therefore legislators are elected to their offices not only for the purpose of enacting laws, but also for the purpose of checking the governor or president and their deputies.
Removing the immunity clause will be an act of calling the voting masses, in one word, fools. â€˜you can elect who you want and after that I or we the federal goverment will sue him on criminal grounds and send him packing' in this case the power of the masses will be diminished and the federal government will be a big-brother whipping governors to queue. The danger of alienating the masses in such cases cannot be overemphasized. Writing in International Social Science journal vol 53 in an article titled " Centralism and Alienation," Wole Soyinka reminds us that "if this century of Rwanda, Somalia, Sierra Leone, Liberia, Congo, the Soviet Union, Yugoslavia, etc. has taught us nothing else, it is that the lure of centralized power must yield to its diffusion among peoples at levels of responsibilityâ€¦.Negelect of this principle will continue to stress the casing that holds such peoples together."
The fight against corruption must not be seen as a federal responsibility to be done by federal parastatals alone. Different states through their legislators must check serving executives. Our function will then be to strengthen the different democratic institutions that will help forestall any temptation to profligate or embezzle public funds, starting from the electoral process to keeping the legislators on their toes. The clamour for the removal of immunity clause must give way for the clamour for a credible INEC and a sensitization of the masses on the need for voting the right candidates and continue to keep them in check.