The immunity that section 308(1) of the 1999 constitution confers on The President, Vice President, Governors and Deputy Governors has prevented the Independent National Electoral Commission (INEC) from prosecuting Gov Yahaya Bello for offenses bordering on alleged double voter registration.
May Agbamuche-Mbu, INEC’s National Commissioner & Member, Information and Voter Education Committee disclosed this in a statement released yesterday after its weekly meeting.
The statement said, “following reports of the alleged double registration by the Governor of Kogi State in the on-going Continuous Voter Registration (CVR) exercise, the Commission set up a panel of investigation into the involvement of staff in the matter. The initial report submitted by the panel was referred to the Appointment, Promotion and Disciplinary Committee, which made recommendations to the Commission.”
“While the Governor of Kogi State currently enjoys immunity from prosecution, the Commission took the following decisions in respect of its own staff: summary dismissal of two staff for acts of gross misconduct; and immediate and compulsory retirement of an Electoral Officer for act of gross misconduct,” the statement added.
The immunity clause argument
Overtime, there has been increased clamour by Nigerians on the propriety or otherwise of the immunity clause in Section 308 of the 1999 Constitution which grants serving presidents and vice presidents and governors and deputy governors protection from prosecution during the pendency of their terms in office.
Arguing in favour of its abolition, Femi Falana (SAN) believes that notwithstanding the absolute immunity conferred on heads of government, they may be sued in their official capacity or made nominal parties in criminal proceedings. In order to promote accountability and transparency in government and deepen the democratic process, the courts have whittled down the absoluteness of immunity enjoyed by heads of government with respect to electoral disputes and criminal investigations.
According to Falana, the rising wave of executive lawlessness in the polity, including the rapacious looting of the treasury by some heads of government has led to an upsurge in the popular demand for the abolition or removal of the immunity clause from the Constitution.
“With respect, it is submitted that if those covered by the immunity clause can institute libel suits or enforce other rights, it is unjust to prevent other persons from suing them while in office. As there is equality before the law, it is grossly unjust to allow public officers covered by the immunity clause to institute civil suits when their opponents are precluded from suing them by issuing or serving court processes on them. The injustice in the discriminatory practice becomes apparent when it is realised that the defendants cannot appeal against the cases if they are decided in favour of the public officers,” Falana added.
Prof. Jim Akhere thinks otherwise. According to him, “it is true that the abysmal level to which some of the governors and presidents we have had the misfortune of electing into offices have dragged their high offices by turning into common thieves in office, is exasperatingly annoying to any right thinking person. The answer however is not to plunge our polity into monumental anomie by scrapping the privilege.”
Imagine for a moment, Prof Akhere continued, “that while in office a governor is charged with an offence and arraigned before a judge in his state. Chances are that that judge was one of the accused governor’s appointees A state governor who is supposed to be a symbol of the state appearing in court will certainly cut a picture difficult to describe. That picture will be oddity on stilts. For practical convenience therefore, since the immunity provided in section 308 of our Constitution is only but transient, ending with the terms of office of the officers concerned, its retention is appropriate at best and innocuous in the least.”
However, Prof Akhere believes that the solution to the thievery and monumental fraud of some of the elected officials lies not in the elected officers nor in the constitution but in the people. “If we all as a nation resolve to elect only persons of unimpeachable character into offices the problems we are now facing with treasury plundering and money laundry will be obviated,”Prof Akhere added.