SENATOR OMON-AGEGE AND THE WAR AGAINST THE IMMUNITY CLAUSE – SECTION 308 OF THE 1999 CONSTITUTION AS AMENDED

Introduction.

As our learned friends and public affairs commentators in the social medial are stridently embroiled in the brouhaha that encapsulates the dethronement and banishment (forced exile) of Alhaji Sanusi Lamido Sanusi, as Emir of Kano, two major constitutional issues are left in the peripheral of our national discourse. The first is the agitation for immunity protection by members of our national assembly, and the second is the recent motion by Senator Omon-Agege to expunge the extant Immunity Clause under section 308 of the 1999 Constitution as amended, which is the focus of this essay.

On the motion for immunity coverage by the members of the national assembly, that’s outright ludicrous, to put it mildly. Because, active members of the national assembly are inherently protected or immune from prosecution, whether civil or criminal, from what they say during the debates on the floor of the national assembly or during the preparation thereof. What else do they want? The key constitutional responsibility of the Legislative Arm as the third tier of a presidential system is to talk - debate, lobby, and pass bills into law. Period. And they are already protected while doing that.  

If, however, they are seeking protection or immunity from indictment compelled by involvement or allegation of padding of budget and accepting bribes from MDAs, Ministers, and Lobbyists, think again. That’s aiding and abetting criminality and it is outside the scope of your mandate. And that’s by the way.

A Synopsis of Section 308 - The Immunity Clause that is Under Threat.

Simply put, Executive Immunity as it is under section 308 of the 1999 Constitution, as amended, is not about the person or the conduct. It is, explicitly speaking, about the office. In other words, the beneficiary of the immunity clause (President, Vice President, Governors, and Deputy Governors) are subject to investigation at the cessation of the protected period if there is probable cause for indictment. Therefore, in rendering our judgment on whether to amend or expunge the section from our constitution, we must take cognizance of the fact that not all Presidents, Vice Presidents, Governors, and Deputy Governors are corrupt.

On the question of whether the immunity follows a former Governor to the Senate or the House of Representatives, the answer is a capital NO. An ex-Governor or ex-Deputy who is presently a Senator or a member of the House of Representatives is subject to investigation, indictment, or prosecution to the full extent of the law for any fraudulent conduct authorized by him or executed at his behest while in office as Governor or Deputy Governor. By that definition, former Governor Okorocha, for instance, who is now a Senator, no longer enjoys immunity protection. Same with all former Governors and Deputy Governors who are now in the National Assembly. Now you know why they are demanding full-blown immunity protect. 

Executive Immunity enhances harmony in a democratic political system that would, no doubt, be eroded if our Presidents and Governors are exposed to the vagaries of our judicial system. Arrest and trial of those protected under the section would paralyze activities in the affected states or at the federal level. That was the rationale and legislative intent of section 308 of the 1999 Constitution - defined as the thinking of the drafters based on public policy considerations.

For ease of understanding, I would like to reproduce the entire section 308 of the 1999 Constitution verbatim. The Section provides

(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.

Rationale and Public Policy Arguments for the Retention of Section 308 of the 1999 Constitution

Despite everything, the immunity under section 308 of the 1999 Constitution is well-intended. The individuals protected under the section (President, Vice President, Governor, and Duty Governor) are not suitably placed to enjoy the luxury of time, defending lawsuits, whether frivolous or meritorious, while in active duty.

Our proclivity for filing lawsuits knows no bounds. Removal of that immunity clause from our constitution would in all probability ends jeopardizing our fragile constitutional democracy. Every Ademola, Usman, and Okechuku, as well as members of the opposition parties, would, through frivolous lawsuits and spurious petitions, incapacitate a sitting President or Governor without regard to judicial ethics or the concerns of Nigerian voters. And in the process, take them off course from real and purposeful governance.

Executive immunity enhances harmony in the political process that would, no doubt, be eroded if Presidents and Governors are exposed to the vagaries of our judicial system. Adding to that, arrest and trial of those protected under the section, would paralyze activities in the affected states or at the federal level. And that was the rationale and legislative intent of section 308 of the 1999 Constitution - defined as the thinking of the drafters based on public policy considerations.

There is no doubt that the benefits of the Immunity Clause outweigh the defects. The defects, if at all, are traceable to the inability of those empowered with law enforcement obligations to make our Constitution live up to its real purpose as the supreme law of the land.  To that extent, it requires diligent prosecution as expected of true fiduciary (EFCC, the Police, ICPC, and the AG). It's all about interpretation ability, audacity, and genuine intent to fight and surmount the ills of corruption and unjust enrichment that irredeemably wrecked a supposedly great nation-state.

We should not act on the impulse of the moment and abrogate a constitutional framework that is imbued with the right ingredients to serve notable national goals - growing our democracy and simultaneously, ensuring stability in the political system.

Granted, our core leadership team is made up of some of the most unprincipled, shameless and unrepentant opportunists you could ever find on the face of the earth; be that as it may, we cannot embark on a constitutional amendment campaign just to accommodate our idiosyncrasies and every unfortunate aberration. That's retrogressive political evolution. What would you do, if God willing, we are fortunate to have selfless and honest leaders at the helm of affairs? Amend the Constitution once again to align with the new reality? No. We can do better.

We must be proactive, creative, and sincere in our approach to the war against corruption and the pursuit of assets recovery and forfeiture. Those who are known to be corrupt should be apprehended, prosecuted, and made to forfeit their illegally acquired wealth to the state as soon as they cease to function under the protection of section 308. That is the best approach - trace and seize the funds or their bank accounts immediately. By taking that measure, you have automatically rendered them morally bankrupt and financially incapacitated. Without the stolen funds, they cannot fight the criminal justice system by hiring and deploying an arsenal of the best and brightest in the legal profession to impede prosecutorial flow.

According to the FBI (Federal Bureau of Investigation), "Many criminals are motivated by greed and the acquisition of material goods. Therefore, the ability of the government to forfeit property connected with criminal activity can be an effective law enforcement tool by reducing the incentive for illegal conduct. Asset forfeiture takes the profit out of crime by helping to eliminate the ability of the offender to command resources necessary to continue illegal activities."

Today, there are thousands of fraudulent Nigerians out there on the street, including former Governors and former Deputy Governors, as well as former Presidents and former Vice Presidents, known to have fraudulently enriched themselves with public funds. They are living free and living large on our wealth, even though they are no longer under any protection of the immunity clause. Section 308 is office-specific. It is over at the end of the protected period.

Therefore, the Section should be strengthened to serve the intended legislative purpose. Any dilution will erode its efficacy. Immunity and unjust enrichment are mutually exclusive. The rationale was to engender purposeful governance, to ensure uninterrupted governmental activities at the state and federal levels, consistent with fundamental principles of democracy and rule of laws. That is the thesis of this essay. The major constraint is the nonchalant culture prevalent within the judicial branch, which borders on procedural rigmarole - unnecessary adjournments and various injunctive orders, without reasonable excuse or a show of irreparable harm or injury to the defendant.

Moving Forward - Solutions

Fellow Nigerians, whatever we do, we must not lose sight of the underlying imperative, designed to engender consistency and robust democratic values in our troubled political system that Section 308 represents. Therefore, we must be bold about consolidating those democratic values, without regard to the race or the social status of the culprits before and during a trial. That is the first step to renewing Nigeria. It is about equal rights and justice.

In sum, corruption, embezzlement of public funds, and squandering of riches in Nigeria are seemingly insurmountable, because of the unwholesome and unwritten collaborative resolve of those in the judiciary. A monumental national crisis compounded by the inability of those vested with law enforcement power (AG, Police, EFCC, and ICPC) to develop aggressive mechanisms focused intently on combating abuse of discretionary power (adjournments and injunctions) by judges, as well as, the procedural rigmarole (delay tactics) perfected by defense counsels. Injunctive relief or ex parte order is a discretionary (equitable) remedy - it is not a final judgment on the merit.

Availing your client with the defense of interim or permanent injunction in a clear-cut case of embezzlement of public funds as perfected by our reputable and highly respected lawyers is overtly aiding and abetting malfeasance. In Nigeria, both equitable reliefs are issued indiscriminately irrespective of the position of the movant in the case. In other words, in Nigeria, Injunctive relief is a defense mechanism.

And that, my friends, is our real problem; not Section 308. If your hands are clean, and you rightly believe that you are innocent as charged, then, be willing to stand trial and defend the allegation of unjust enrichment instituted against you. This is the time we should all stand up and demand curtailment in the grant of injunctions and other discretionary reliefs by our Judges. There is a threshold that the movant must meet to sustain any motion for injunctive relief. That, of course, is outside the scope of this essay.

The Prosecutor, EFCC, ICPC, and the Police Force must be bold, resolute, and creative in their search for real justice. And our approach to asset forfeiture and recovery of stolen public funds must be aggressive, purposeful, and nondiscriminatory. I beg to move.

As an addendum, I want to make it abundantly clear that I am not against capitalism or private ownership or private acquisition of wealth. However, I am unequivocally against over-leveraged capitalism and the prevailing culture of impunity and blatant abuse of political office by those vested with political power. To keep enriching yourself with public funds that you and your children cannot exhaust, buying cars you cannot drive or landed property you barely use shows stupidity. It is not fair. It is not right. And it is morally repugnant. Therefore, it must stop for a resurgence of the true meaning of justice, equity, and the rule of law.

Thank you.