allAfrica.com: Nigeria: National Assembly Retains Immunity for President, Govs

Nigeria: National Assembly Retains The Immunity Clause in the 1999 Constitution. 

YES, WE DID IT AGAIN. 

We championed the retention of Section 308 (the Immunity Clause) of the 1999 Constitution of the Federal Republic of Nigeria in our leading article, titled "IMMUNITY: THE SCOPE AND EXTENT OF SECTION 308 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA", written June 04, 2012. 

Today, we are glad that the National Assembly thought it fit to retain the section in its entirety, despite the strident demands for its removal by numerous commentators on social media. Not left out of the abrogation crusade are the new progressives who are desperately laying claims - bogus or real - to populist identity. 

After all was said and done, informed, objective, and reasonable judgment prevailed over superficial arguments. We not only blaze the trail with our retention pitch, but we also developed a compelling narrative whose marketing needsn't much convincing. It speaks for itself.

What most liberal and progressive commentators are unwilling to accept is the fact that the large-scale corruption in Nigeria, especially at the Executive level, has nothing to do with the Immunity Clause. It is the inability of law enforcement agencies, EFCC, and ICPC to live up to the demands of their respective offices and positions. Where are the impeached Governor of Adamawa State and the other corruption-personified former Governors who are no longer protected by Section 308?

Please find the referred article on the left side of your computer. It is number one on this Blog - the most read and a reference point for lawyers, members of the National Assembly, their consultants, and advisers. We did not make it the number one essay on this Blog; you did - you, the readers. 

Some excerpts due to popular demand:

Rationale and Public Policy Arguments:

In spite of everything, the immunity under Sec 308 of the 1999 Constitution is well-intentioned. The President, or as the case may be, a Governor, would not have the luxury of time defending lawsuits, whether frivolous or meritorious, while in active service as Governor or President. 

Our proclivity for lawsuits knows no bounds; removal of that immunity clause from our constitution would end up doing more harm than good to our fragile constitutional democracy. Every Ademola, Usman, and Okechukwu, as well as members of the opposition parties, would, through unwarranted and unmeritorious lawsuits and petitions, incapacitate the sitting President, or Governors as the case may be, 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, the arrest and trial of those protected under the section would paralyse activities in the affected states or at the federal level, as the case may be. 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 the Constitution live up to its true purpose as the supreme law of the land.  To that extent, it requires diligent performance (prosecution) as expected of true fiduciaries (EFCC, the Police, ICPC, and the AG). It's all about the interpretation, 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 provision that is imbued with the right ingredients to serve a worthy national purpose - growing our democracy and ensuring stability in the political system. 

Granted, our core leadership team is made up of some of the most shameless and greedy first-class opportunists you could ever find on the face of the earth; be that as it may, we cannot embark on a constitutional amendment just to accommodate our idiosyncrasies and every unfortunate aberration. That's regressive political evolution. What would you do, if God willing, we are fortunate to have selfless leaders at the helm of affairs? Amend the constitution again to align with the current trends? 

We can do better. 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. And where appropriate, they should be made to serve life imprisonment, without the possibility of parole. Are we willing to do that?

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 large and living free, while we watch. Sadly, they are yet to be apprehended and prosecuted by law enforcement agencies, even when these fraudulent Nigerians and ex-political leaders do not enjoy any atom of immunity. 

Worse still is seeing most of these overtly corrupt political leaders gallivanting all over local and international forums as consultants and elder statesmen, lecturing and propagating archaic and discredited theories of leadership and wellness.  

Immunity and unjust enrichment are mutually exclusive. That we want to strengthen our democratic values via some constitutional mechanisms doesn't translate to encouraging official misconduct. From all indications, Section 308 is not the problem. Blame it on the unwritten collaborative resolve of those in the judicial branch - a monumental national crisis that is compounded by the inability of those vested with law enforcement power (Police, EFCC, and ICPC) to develop a new strategy to surmount abuse of discretionary power by judges and defence lawyers.

It is indeed very sad that some sections of the Nigeria political establishment, including opinion leaders and public affairs commentators so gotten embroiled in that perverted notion that once a Governor or Deputy Governor ceases to function as Governor or Deputy Governor, and is elected to the Senate or House of Representative,  he or she is still immune from arrest and trial for the unjust enrichment perpetrated as Governor or Deputy Governor. That is complete baloney. The immunity is office-specific. The same rules apply to the President and Vice President. 

Therefore, the Section should be strengthened to serve the intended purpose and not diluted by any means. The rationale was to engender purposeful governance and ensure uninterrupted governmental activities at the state and federal levels, consistent with fundamental principles of democracy and the rule of law. The major constraint is the nonchalant culture prevalent within the judicial branch, bordering on procedural rigmarole - incessant adjournment and granting of orders of injunction, without reasonable excuse. 

Conclusion:

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 and harmony, without regard to race or social status, when prosecuting those who defrauded our state and federal governments. That is the first step to renewing Nigeria.

You steal, you steal! Period! It is that simple! Why ask for an interim or permanent injunction in a clear-cut case of embezzlement? 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 against you, instead of resorting to procedural mumbo jumble to circumvent real justice. And that, my friends, is our real problem, not Section 308. This is the time we should all stand up and demand curtailment of the grant of injunctive relief by our Judges.  

DEMOCRATS: Are the Recent Economic Numbers Stupid? (Chris Matthew)

Democrats and the Unwillingness to Spin and Celebrate Success in the Face of Unprecedented Accomplishments - By Alex Aidaghese.

First Published July 7, 2014

It is Deja vu all over again. Mrs. Hilary Clinton and most Democrats running for reelection for Congress are acting evasively amidst the fantastic and unprecedented accomplishments of the Obama Administration - talking and walking defeatist instead of triumphantly. They are unwilling to celebrate success or identify with President Obama and his record of achievement in the past six years. Vice President Al Gore exhibited the same level of naiveté during his 2000 Presidential race with then-Governor George W. Bush of Texas. Al Gore ran away from the huge success story of the Clinton Administration to be "his own man." And at the end, he paid for it. He was defeated, in spite of the fact that he was a viable component of President Clinton's miracle team of eight years. Yes, the same Vice President Al Gore who debated and flayed the irrepressible Ross Perot on CNN's Larry King Live on behalf of the Clinton administration in 1993. Sadly, when his appointed time came, he miscalculated: It was the House Republican Managers who wanted President Clinton impeached. Not the American voters.

About a month ago, I had my mind made up to send a brief message through this Blog and on my Facebook Timeline to Democrats and Hilary to remind them that playing Al Gore in the face of glaring improvements in the unemployment rate as well as in the housing market and on Wall Street is not the right way to win election. The problem was, I didn't have the time to develop or expand on the framework of the essay. However, watching Hardball with Mr. Chris Matthews this evening, I realised that I am not the only one wondering why Democrats are unwilling to spin and celebrate their achievements under President Barack Obama. They are watching while Republicans are spinning their success story into failure.

About fourteen years ago, Vice President Al Gore deliberately distanced himself and his campaign team from President Bill Clinton because of the Monica Lewinsky sex scandal. Mr. Al Gore wanted to be "I am my own man" by all means. To consolidate that objective, he settled for a running-mate who brought nothing of electoral value to the ticket, except for the fact that the guy was the first, and if I am not mistaken, the only USA Senator, and a Democrat for that matter, to rise up on the Senate floor to lampoon President Bill Clinton for a conduct that was not an offence or impeachable when it happened. At the end, though Al Gore succeeded in being "I am my own man" to the delight of Clinton's adversaries and antagonists, he woefully failed to integrate Clinton's unprecedented performance that he was part of into his presidential campaign.

Disappointingly, Al Gore didn't win in Arkansas (President Bill Clinton's own State). And he didn't win in Tennessee, either - his own State. If Al Gore had collaborated with President Bill Clinton in the campaign and won in either of the two States, electoral college vote counts or not; Florida or no Florida; intervention of the Supreme Court or not, Vice President Al Gore would have defeated then Governor George Bush for the November 2000 USA Presidential election. He succeeded in being "I am my own man", but failed to be the President of the United States of America – a position he rightly deserved and earned more than any candidate then.

Presently, Democrats, especially those running for re-election, as well as Mrs. Hilary Clinton (a leading candidate for the Democratic ticket in the next Presidential election), are making the same mistake that Vice President Al Gore made. The reason for that is quite obvious: President Obama is not doing so well in the polls. And Republicans have succeeded in spinning the Affordable Healthcare Law into something of a voodoo policy or job killer. However, the job reality on the ground does not support their diabolical mudslinging. The unemployment rate has dropped considerably to about 6 per cent under President Obama. Yet, Democrats running for Congress are finding it difficult to rebut Republicans' campaign of calumny and craft a pragmatic narrative for re-election. If the Affordable Healthcare Act is a job killer as Republicans want Americans to believe, why then are the noticeable improvements in the unemployment rate? I do not have much to say or write about the political harms that Hillary and Democrats are inflicting on themselves presently.

Suffice it to say that they have forgotten what the situation was on Wall Street and on Main Streets when Obama took over from President George W. Bush Jr. They have forgotten the unemployment rate then. They have forgotten that bonus and end-of-year partying and packages were alien on Wall Street then. They have forgotten the name Osama Bin Laden. They have forgotten the two wars. They have failed to realise that Arlington National Cemetery is more peaceful now than seven years ago. They have forgotten the unprecedented breakthrough in health care coverage for the poor and the middle class, as well as the resuscitation of the auto industry. And they are not seeing the bubble in the Banking and Housing sectors.

As usual, Republicans are winning in spinning failure and socialism. President Obama doesn't need any talking points from his speech writers, from me or from his special advisers to market his performance to the American people. He has the talking points right in front of him. He was - and still is - the major player: the main character in the unfolding events. He should take his performance and ongoing programs on the road right now for the sake of posterity. No one knows it better than the King.

Finally, Mrs. Hilary Clinton should not run from her record - Benghazi or no Benghazi. She should strive to celebrate her accomplishments as Secretary of State and not turn her back on the President under whose administration she did so much for so many all around the World. And she should never contemplate playing Al Gore. The attacks on her from the GOP shouldn't be unexpected. She is a formidable candidate and a dreaded opponent. July 07, 2014

(By the way, I watched the Al Gore v. Ross Perot debate live in our Living Room in Lagos, Nigeria in 1993 - 3 am Nigerian Time, 9 pm American Time. I was a student then in Lagos, Nigeria, and I had to travel home to my elder brother's house at the opposite end of Lagos to watch the interview, as at then, there was no Satellite Cable Receiver on Campus. If I may add, I bought and installed the Cable Receiver in the house with part of my education allowance to be able to follow up with the Clinton phenomenon whenever I am home. I did not regret it. Part of the sacrifices I made that made this Blog what it is. Nothing here is guesswork. I sacrificed my breakfast for most of the five years I was a student in Nigeria to be able to buy and read the Guardian and other magazines. It feels great to have your work being a part of the speech made by no less than three Heads of State and Government in the just concluded UN General Assembly. Or telling a Constitutional Law Professor in the class that America Government, being the highest contributor to UN funding (that was before Japan step into the scene in early 1990) can unilaterally override most of the resolutions of the General Assembly, by using its financial muscles to compel the UN Secretariat to adopt the structural reforms that America demanded. I took exception to the Professor's repeated assertions that the UN General Assembly has the power to apply its numerical strength to defeat American veto power, if America does not relent in its demands for financial and structural reforms at the UN. And it came to pass about a year later exactly as I said in class. You all remember Boutros Boutros Gali of Egypt and his topsy-turvy relationship with the American Government over his unwillingness to embrace the demands for structural changes coming from Washington. When he was confronted with the imminent collapse of activities at the UN over a severe financial shortfall, no one reminded him that he had to play along with Uncle Sam. He did reluctantly, but it was too late. When the time came for his second term vote, Uncle Sam dropped the hammer - they vetoed his candidacy, leading to the emergence of Kofi Annan. I would also like to add that after the Professor berated me for not standing up to be recognised or raising my hand, he awarded me five points ahead of the final exam in that class.  The next day, one of the most, if not the most, visible students in my class, and one of the prominent lawyers in present-day Nigeria, accosted me and wanted to know the textbook that published the comment that I made in the Constitution Law Class the previous day. Without blinking, I told him I read The Guardian Newspaper. He was in a state of shock, wanting to know if Guardian Newspaper was my source. My friend, not exactly, I declared. Reading the Guardian Newspaper every day, places me in a position where I could walk tall, talk tough, take a stand authoritatively in any issue - politics, public affairs, leadership, and international relations, and of course, be audacious enough to make that declaration in class, not minding the Professor or how he will react. My celebrity-lawyer-in-the-making friend just looked at me and said, “I dey fear you o, Alex.” And walked away. In similar vein, when a former US Governor, a Mayor, a Presidential Adviser came up on TV repeating ad nauseam that President Obama and his Campaign Team shouldn't talk about Wall Street and Bain Capital in the Presidential race against Governor Mitt Romney, it was yours truly who took the opposite stand – arguing forcefully on this very Blog and on my Facebook Timeline why President Obama and his team should do the contrary. They complied. It was not only the President and his team that adopted the talking points; every progressive commentator and pundit on TV adopted them. Once, Mr. Chris Matthew was to ask on his Show: Did x and x make mistakes for arguing that President Obama and his campaign team should not campaign with Wall Street and Brain Capital? That was after the drastic rebounds in the poll. I know it, and I am saying it here, because I made it.

Of Combat Boots and the Search for a Moderate Rebel in Syria!

Introduction:

Yesterday, September 18, 2014, the US Senate reached a bipartisan deal to allow President Barack Obama to fund and arm Syrian Moderate Rebel Forces in its quest to conquer and eliminate the Islamic State Militants in Iraq and Syria (ISIS) saga. Noble as the initiative is, we cannot deny the fact that most Americans, including most members of Congress, do not know exactly who a Syrian Moderate Rebel is in the context of the new mandate handed to Mr. President. So, who is a moderate rebel in Syria, worthy of American trust and engagement? That is the issue. Unfortunately, the honourable lawmakers did not vouchsafe a definitive answer to assuage those nursing misgivings about the mandate. To arm is not the issue, but managing the goal and the outcome. We want to reinstate, as we stated in our previous essay, that in the international diplomacy arena, there is a universally accepted belief that there are no permanent friends or allies, but permanent interests. Given that as true, there is no period, no history, and no situation more urgent than now for that principle to be on full blast in Damascus at the instance of Washington, to enable an unhindered channel for integrated logistics support for the dismantling of ISIS and everything that it represents. When President Obama made the declaration a few years ago that there won't be American combat boots on the ground in Syria, there was no ISIS, there was no beheading of American freelance journalists, or an American Aid Worker facing imminent death, and there was no suicidal match for experimentation with the idea of an Islamic Caliphate in another sovereign territory. In other words, the lives of innocent citizens, the interests of America or those of its allies were not at stake or threatened then. Today, it is a different story.  In every respect imaginable, this is a just war. Therefore, we cannot, and must not, downplay the need for more combat boots on the ground in Syria. And on the issue of arming the Syrian Moderate Rebel Forces, though the efficacy of that proposal appears promising, we ask that the US Government tread with caution.

Understanding the Limitations of the Moderate Syrian Rebel:

From our usual common sense perspective, a Moderate Syrian Rebel is a member of the Free Syrian Army - an insurgent who came into the crisis scene in Syrian following the escalation of the "Arab Spring", imbued with a genuine sense of national pride, and to terminate the Assad's dictatorship, but not fully embroiled in the indiscriminate destruction of human lives reputed of ISIS and the Assad forces.

Without mincing words, I want to maintain that arming the Free Syrian Army, without the direct involvement of the coalition forces in the real combat, will not vanquish ISIS from the occupied territories as reasonably needed. In addition, the underlying grievances, mostly political and abuse of human rights and related issues, must be addressed simultaneously with the quest to annihilate ISIS; otherwise, Syria will remain a vast land of unequal rights and justice, and a testing ground for every form of Islamic ideology.

The fact that the so-called moderate rebel forces are NOT at the moment engaged in forceful indoctrination of the unwilling or embarking on a territorial expansion drive does not qualify them as moderate rebels, deserving of our arms and trust. It is not about vetting, as some pundits and military experts are suggesting. It is about trust, and whether they are genuinely and favourably disposed to Western values, interests, and objectives.

Indeed, the impulse to overthrow President Assad for all his past records of human rights violations is compelling, but we should take cognisance of the fact that a greater majority of his adversaries are unrepentant Islamic militants who, given the chance, will never and can never be salvaged, or expected to embrace Western secular culture and democratic values.

More troubling is the question of managing the liberation process - who will exercise jurisdiction over the occupied land, if, eventually, ISIS is defeated and evacuated?

Will the coalition forces and the moderate rebels, after the expected defeat of ISIS, turn their weapons on Assad and his forces to force Assad out of power in Syria?

Or will Syria degenerate into two mini-sovereign nations - one under the control and leadership of Assad, and the other under the control of the international coalition and the moderate Free Syrian Army?

It is not enough to defeat and vanquish ISIS without addressing the civil war in Syria that gave life to ISIS in the first place. Attention should be extended to how to manage the intended defeat as well as ending the unwinnable civil war. The isolation of President Assad and his troubled nation in the past years provided a fertile ground for Islamic fundamentalists to experiment with barbarism. That has to end.

From all indications, the so-called moderate rebels are not a formidable force, militarily. They couldn't withstand the military strength of the Assad Forces, and they have been similarly humbled by the more aggressive and brutal ISIS.

In other words, these are not the forces or a formidable group that, under the prevailing circumstances, you will expect to form a viable government in Syria after the defeat of ISIS or the unlikely capitulation of Assad.

Given that as true, the international coalition must strive to integrate the political solution with a military approach. The political turmoil and ethnic intolerance in Iraq in the past three years are crucial enough for a guide.

Dealing with Tribal Loyalty and Minority Agenda:

Syria is not Egypt. Egyptians rebelled against the Mubarak Administration collectively as a people. There was no tribal warlord taking advantage of the pro-democracy protest to inflict maximum damage on President Mubarak and his administration for years of domination. And there was no visible tribal or ethnic group fighting on the side of President Mubarak to frustrate the purpose of the pro-democracy movement.

With regards to the Muslim Brotherhood, it was a different story – they were neutral all through the nights and days that the protest lasted in Cairo, waiting patiently to occupy the vacuum expected to be created in the lead following the demise of the Mubarak Administration.

As expected, being the most viable and well-organised group existing then, the Muslim Brotherhood was able to mobilise its followers within a record time, cashing in on the anti-Mubarak momentum to win the Presidential election that was called by the interim Military Government. But the newly elected President, Mohamed Morsi, got it all wrong. He did not let go of the Islamist in him, and he was vanquished.

Granted, Egypt is predominantly a Muslim country; the truth is, President Mubarak was not overthrown because he is secular-leaning or a tribal warlord. He was overthrown because Egyptians wanted a taste of real democracy. Not a dictatorship or an Islamic Government that President Morsi was incubating.

In a similar vein, the people of Tunisia were fed up with an oligarchy that lacked a socio-political agenda aimed at improving the well-being of its people.

Concerning the Algerians, they simply had had enough of corrupt political leaders and successive governments that notoriously lacked any clue on how to manage their vast oil wealth and overcome the concerns of the proletariat.

(By the way, my term paper in the "International Petroleum and Comparative Law and Policy" class - one of the classes that I took when I was in graduate school - was on the 2005 Algerian Hydrocarbon Law, as amended in 2006. So the statement above referencing the Algerian oil wealth and corruption is not guesswork. Sonatrach, the Algerian state oil behemoth, and the most powerful state-owned oil company in Africa, before it was dismantled, was more powerful than the state.

In sum, the anger, the joblessness, and the feeling of anti-establishment in Tunisia and Egypt that led to the evolution of the “Arab Spring” were not motivated by tribal or ethnic or religious factors, as we saw in Syria and Libya.

Therefore, President Obama and the international coalition must tread softly in arming the so-called moderate rebels inside Syria. Because when it is all over, you will still have a substantial member, if not a majority, of the Syrian people backing President Assad.

To put it succinctly, a minority rule or regime in Syria is not sustainable. America cannot afford to 'babysit' another adolescent regime - Islamic or secular - in hostile territory.

It is now left to Mr. President and his security team to separate the wheat from the chaff to avoid creating another Afghanistan’s mujahideen funded by America in the 1980s during the Afghan war with the old Soviet Union.

Conclusion:

I want to hesitate to conclude that the international community, headed by the US Government, is resisting the inevitable. Undermining the political angle to the civil war in Syria is not a smart move. The ISIS phenomenon, though overwhelming, is a collateral issue in the Syria saga. Ending it does not automatically eliminate the underlying grievances that compelled the civil war in Syria.  In addition, Syria is not Gadhafi’s Libya, where the pro-government forces collapsed under intense pressure from the international community. President Assad has real and highly motivated followers who are willing to sacrifice their lives for their President. The facts on the ground speak volumes to that. If President Assad is vulnerable, he would have long gone, given the multi-dimensional attacks his forces and administration have received from ISIS, the Free Syrian Army, the international community, as well as other interested parties in the past three years. Liberation of ISIS-held territories will not completely eliminate the political crisis in Syria. The same way as the defeat of the Assad forces, if ever it happens, will not enshrine the elusive peace in the polity. The situation requires concerted and well-coordinated military and political solutions – an inclusive government or complete dismantling of the country into multiple independent states along tribal boundaries. I rest my case.

- Mr. Alex Aidaghese.