Immunity from prosecution: Arguing both sides!
Written by Paul I. Adujie
Tackling the issues that arise from immunity from prosecution is a delicate balancing act. This is particularly so, and indeed a very vexing matter, considering the political, legal, and constitutional issues raised in debates that have arisen from the intractable crises involving the governors of Anambra and Plateau States.
Immunity from prosecution, as enshrined in section 308 of Nigerian Constitution, was intended to serve public purpose flawlessly. As Nigerians now debate immunity from prosecution for president and governors, it should be remembered that there are compelling arguments for both proponents and opponents of the immunity clause. On the one hand, immunity from prosecution allows freedom of action by those beneficially protected with such immunity protections; conversely, immunity -- when abused -- could quickly become instruments of impunity of actions and impurity of outcomes, especially in the hands of public officials who seek to formulate and impose fraudulent public policies on Nigerian citizens. Immunity from prosecution could become a dangerous tool in the hands of those who possess a perverse sense of law, ethics, and decency.
It must be said that immunity from prosecution is a well-founded, well-reasoned concept, which has sundry benefits when applied honestly and scrupulously for the greater good and benefit of our society. This means that a sitting state governor of Nigeria or the president, during the subsistence of term of office, must have a free hand to act boldly and courageously for public good; in doing so, such governor or president would not be hindered by fear for self, for repercussion of actions embarked upon, for general public interest of a state or for national interests clearly defined -- all legitimate actions undertaken during the pendency of term of office by a governor or president -- must therefore be foreclosed from personal legal liability, hence the concept of immunity.
As the controversy rages in Nigeria regarding absolute immunity for public officials, Nigerians must however proceed cautiously, in view of the far-reaching implications of our hasty actions that are probable, as we seek to ensure that immunity protections are not exploited by corrupt officials’ avaricious perversity and absurdly extreme misuse power. In this connection, the concept of immunity from prosecution for certain public officials, Nigeria must undertaken with all seriousness, constitutional amendments, we must not change the constitution because of the shenanigans of Nigeria's current crop officeholders alone, a constitutional reviews and amendments, must be undertaken, for a more important rationale, and purpose, a solution that would stand the test of time and endure.
Conversely, immunity from prosecution is subject to abuses, just as every other law or rule is subject to abuse and adulteration by persons with such disposition to manipulate and corrupt laws and rules for their personal benefit, instead of public benefit. It is the case, therefore, that a governor or president, desirous of subverting public interests and public good for evil and personal gain, could engage in actions that serve personal or parochial interests, which of course amounts to perversions of public and national interest. At the same time, such governor may seek to cloak self in immunity from prosecution for actions undertaken as a public official. The electorate have witnessed a repeat demonstrations of such abuse of immunity protections since 1999.
In this debate, we probably should err on the side of retaining the concept of immunity for prosecution and the provisions in our constitution. What we perhaps ought to do is to redefine and delicately delineate actions that qualify and meet the standards or thresholds that are henceforth set, upon which a governor or president may successfully invoke the immunity clause.
Clearly, a commission of rape, murder, and embezzlements would of course not meet such standards and would not qualify for the contemplated protections. Preconditions would be set or required of actions that would meet the protection of a governor or president! I say this because there have been in recent times too many cases, glaring cases if I might add, where public officials have been suspected of engineering assassinations and killings that are politically motivated, and such heinous crimes have only met with murmurs of rumor quality. There have been cases where public officials have been accused of corruption and embezzlements or engaging in arsons to cover up egregiously heinous crimes. Further, there have been cases of public officials engaging in criminal conspiracies to pervert public interest, national interests, and general public good. These instances merit thorough investigations and determinations, whether such public official's notorious misconducts warrant the stripping of immunity.
A governor or president who is found in such instances to have committed criminal acts -- or conspired, aided, or abetted the commission of such offences by others -- is surely not deserving of immunity from prosecution by any stretch of the legal concept. The Nigerian Constitution presently offers carte blanche-immunity protections to president and governors. Nigeria ought to review these provisions and sections of the Constitution to repeal completely or to make amendments that reflect standards or threshold of conduct warranting such absolute constitutional protections, threshold beyond which the prosecutorial door is open and the immunity protection door is slammed in the face of erring public officials.
But this must clearly distinguish categories of actions that may be undertaken in good faith by, say, a governor or president in the public interest, while such governor or president is in office. For example, if a governor or president give orders for the demolition of my house because my house did not comply with the zoning laws of my locality or the president, or governor orders my house to be demolished because I have not maintained my house -- and it has become structurally unsound and unsafe, thereby constituting a public safety hazard, nuisance, and emergency, the governor or president should not be encumbered from the bold and courageous action of ordering the destruction of my house to safeguard public or national interest. Such governor or president must not be exposed to criminal or civil liabilities, penalties, or encumbrances for such transparent actions undertaken in good faith while in office and for the general welfare or public good of Nigerians. It would be different, however, if the governor or president allocates the land, hitherto occupied by my house, to himself or his in-laws. Such egregious misconduct would not meet the muster of immunity from prosecution! An amended Nigerian Constitution should so reflect distinctions of good faith, transparent actions, contrasted against corrupt usurpation gubernatorial or presidential powers.
Take another example related to public health and safety: If I have chicken farm in Ota infested with a chicken disease and, for reason of protecting the public's health and safety, the governor of the state where my chicken farm is located determined in good faith that it serves public or national interests to destroy the entire broods of my birds, in order to prevent the spread of the chicken disease from Ota to Maiduguri, etc. The governor must enjoy such freedom of action to enable the proper protection of the general public.
Another example, will probably reinforce the point: If I am flying my private jet toward the governor's or president's official residence, with a view of crashing into it because I disapprove of their policies and their lack of focus, by which they have deprived Nigeria of development and progress, of course, my aircraft should be shot down. I or my next of kin should not be heard to complain about such destruction or, worse, to demand compensation and recompense from the governor or the president for my life or property -- the plane -- that is thus destroyed in the process. Simply put, destroying or bringing down my plane should not expose or subject the governor or the president to legal strictures, as my noble but criminally foolhardy plane-crashing must be prevented in order to protect the public from my intended unsafe acts. Public interests and national interests require the governor or the president to act accordingly, and this must not subject them to criminal or civil litigations while in office, or even thereafter, due to actions undertaken for public safety and security.
In conclusion, as we debate the advantages and disadvantages of immunity from prosecution for public officials in Nigeria, notably the governors and the president, we must err on the side of, focusing on the benefits that accrue to our nation when public officials are not hindered and intimidated by fear of personal liabilities, as consequences of transparent actions they undertake for the utmost good of our people, actions taken while in office, actions that were in good faith, that were transparent, and that were for public good. We must delicately balance the two extremes: the benefits of immunity protections in the Constitution and the disadvantages that are probable from a complete absence of immunity protections in our Constitution, even as we fight to eliminate the ravages of the scourge of corruption. Even as we do all this, we must not disregard civil liberties and the rule of law.
Nigeria should maintain and retain the current constitutional provision that enshrines immunity from prosecution, or repeal it, amend it, refine it, retool it, reform it, but it should not be jettisoned because of the unjustifiable aberrant behaviors of some current public officials. We must continue to emphasize respect for the rule of law, due process, freedom and justice for all, even as we fine-tune our system and as democracy takes root.
First published on Wednesday, December 29, 2004