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Friday, May 21, 2010

Immunity Must Go

Immunity Must Go
Dr. Aliyu Tilde

I did not know that Governors also cry until last week when they met the President and bitterly complained of their exclusion from the benefits of third term, immunity and other matters that border on their selfish interests in the constitutional amendment report presented to the Senate. The President assured them that something will be done. Shamelessly, his agents smuggled a revised copy of the document that takes care of the governors’ grudges, but thanks to the patriotism of majority of senators, it was thrown out. What a pity!

In our support to those senators, we are today reprinting our 185th discourse which was published last year. In it we reviewed the origin of the doctrine and how illogical it will be to retain it in 21st Century Nigeria when even Britain, its source, has stripped the Queen of its benefits long ago.

Immunity is an old common law doctrine that is rooted in the dictum ‘the King can do no wrong’. In a book widely read by students of administrative law, Nigerian Administrative Law, P. A. Oluyede located the relevance of the dictum in the feudal structure of old England, saying:

“Under feudal system no lord could be sued in the court which he held to try the cases of his tenants. Similarly, the King of England as the apex of the feudal pyramid was not subject to the jurisdiction of any Court in the realm. The basis of the concept is clear. It is simply not that the King could do no wrong, but that no action could be brought against him in his Court without his consent. Ironically however, the oft cited expression that ‘the King can do no wrong’ has been completely misunderstood…

“Another reason for the development is that the true meaning of ‘the King can do no wrong’ is that the King has no legal power to do wrong. The King’s legal position, the powers and prerogatives which distinguish him from an ordinary citizen, is given to him by law, and the law gives him no authority to commit wrong. Much too often it was not appreciated that the King as a human being had a personal as well as a political capacity. In his personal capacity he was just as capable of acting illegally as was any one else.”

In other words, the immunity of the King arose from two reasons: one, the fact that the Court was his and so he cannot issue a writ against himself without him permitting the Court to do so through his endorsement of petitions; two, the society does not expect him to do a wrong, so he did not have the legal capacity to commit it. Following this, a civil servant in those days could only nominally be a defendant in an action brought against him; the government was responsible for fulfilling any obligation arising from his actions.

Things changed in 1947 when the Crown Proceedings Act was promulgated. Under this law, the King became a subject of private law, though not in his personal capacity, and a citizen can seek redress against the injustices committed against a state or its official by ordinary court procedure.

“It is noteworthy at this juncture,” Oluyede wrote, “to point out that the practice which had been in operation in England up to January 1948 was imported to Nigeria and the practice is still in existence in this country even after it attained republican status. It is on record that Britain has, since the Crown Proceedings Act, 1947, came into operation, made it possible to sue the Crown in the Courts by the ordinary process of law in all cases where a Petition of Right or a special statutory procedure had hitherto been the practice. In sum, civil actions by and against public authorities and officials in connection with acts or omissions which normally give rise to cause of action between two citizens are now on the same footing. There is no difference in procedure adopted.”

From the immunity of the Crown, let us move to the immunity of its inheritors. In Nigeria the rights of the crown are vested in our Heads of Governments by provisions of the Republican constitution in 1963. In 1979, following the adoption of a presidential system of government, section 276 of the constitution stated that

“without prejudice to the generality of section 274 of this constitution, any property, right, privilege, liability and obligation which immediately before the date when the section comes into force was vested in, exercisable or enforceable by or against (a) the former authority of the Federation representative or trustee for the benefit of the Federation; or (b) any former authority of a state as representative or trustee for the benefit of the state, shall on the date when this section comes into force and without further assurance than the provisions hereof vest in or become exercisable or enforceable by or against the President and Government of the Federation, and the Governor and Government of the State, as the case may be.”

It must be noted here that the Crown Proceedings Act did not strip the Crown of his immunity in private and personal capacity. The immunity provision of section 267 of the 1979 constitution was a logical flow of the above quoted provision of section 276. “The section (267),” wrote Oluyede,

“provides that no civil or criminal proceedings shall be instituted or continued against the president, Vice-President, Governor or Deputy-Governor during their period of office. They can neither be arrested nor imprisoned during that period in pursuance of the process of any Court or otherwise. While they hold office no process of any Court requiring or compelling their appearance shall be applied for or issued. This is not to say that they are not liable for any civil or criminal act or omission done in their personal capacity while in office. It only means that action cannot be taken against them at that material time.” This provision is replicated in our 1999 constitution.

That is law. It did not envisage that a King can do wrong. It never foresaw a situation where criminals will become kings or kings becoming criminals. The old philosophy is that a king lives well above his servants in his display of majesty and pride; hence, he will not condescend to the level of criminality. Thus we have never heard, until recently in Nigeria and other developing countries, that a President of a nation or a governor of a state can reduce himself to the level of a thief. What a terrible person would he then be in the contemplation of our grandparents?

In the relationship between a king and wrongdoing, three situations can be discerned. The first is that he lives above the level of wrong, and remains free of the consequences of wrongdoing. In this dimension, the provision of immunity makes a lot of sense. But what happens if the king does wrong? That is where the remaining two options come into operation.

When he does wrong, it means the immunity granted him has failed. Under the presidential system of government, the constitution provides for an impeachment clause which could be invoked by the legislature after a procedure that ascertains his guilt is duly followed. Remembering Clinton, that is when the king becomes demystified; he loses his majesty and looks like a cock beaten by rain, as the Hausa will put it.

In Nigeria too the constitution relies on the impeachment clause to guard the executive against doing wrong or in removing him from office when he commits one. Unfortunately in practice, it is used to settle scores between the executive and the legislature or in the attempt of the latter to extort money from the former. A case to recall here is that of former Governor of Kaduna State during the Second Republic, Alhaji Balarabe Musa who was impeached not for reasons related to theft or any misdemeanour but ideological difference between him and the legislature. The impeachment clause here has been used negatively. The impeachment clause was also used to remove many deputy governors thereafter who could not dance to the tune of their governors.

Today, the impeachment clause is used by the legislature to extort money from a wrong doing king, and almost all the kings in Nigeria are wrongdoers. Whenever they learn about a wrong committed by the governor or the President, they raise the card against him and, behold, Ghana must go begin to roll out. Then they drop it. I wish Balarabe Musa were so wise. That is how Baba Iyabo has been able to navigate on the turbulent water of the politics of the second, sorry third, most corrupt nation on earth. During the first term of this administration, the House of Representatives listed over thirty offences committed by President Obasanjo, including forgery. They would have impeached him, if it were not for the power of Ghana must go. Here, impeachment has failed to secure justice for Nigerians due to the susceptibility of the legislature to corruption.

It is the case of Dariye that brought the immobilizing effect of the immunity clause to public glare. He and other governors are good specimens of wrongdoing kings. He is allegedly guilty of negligence of duty that has caused the lives of thousands of people in the ‘home of peace and tourism.’ In addition, records have shown that he has stolen billions from the public treasury. The President, we learnt, tried to persuade the Plateau State legislature to impeach Dariye or else face the imposition of State of Emergency as a consequence. They chose the latter over the removal of their benefactor.

While away during the state of emergency, the presidency and M15 exposed the corrupt practices of Dariye. He was arrested in Britain and granted bail on charges of money laundering. A case was brought before the Court and his immunity right as a governor was upheld. While the law allows him to go free, for now, his collaborators in the same crime are standing trial. Meanwhile, no one can assure us that Dariye has not resumed the perpetration of his corrupt practices which will go on, unfortunately, until 2007. Other corrupt governors are also temporarily relieved by that verdict of the fear of prosecution; they can continue filling their Ghana must go jus qua 2007. We can only wait for the end of their tenure and think of how to drag them to court thereafter for the offences they committed with impunity before our eyes. It is clear, therefore, that we cannot rely on the impeachment clause, just as we feel the immunity clause is archaic and unjust ab initio. Here, again, the law has failed to secure justice.

It is when a judicial system fails to check the excesses of the king that citizens resort to solutions outside the law. Where the law ends, anarchy takes over. In the realm of anarchy, people have found various ways of dealing with the problem. Civil war is one, often ending with the king as the loser, as it happened to Charles I in 17th Century England. Revolution is another, as it happened in France in 1789 against feudalism and Charles XVI to usher in Declaration of Rights of Man and the Citizen which guaranteed “liberty, equality, the inviolability of property and the right to resist oppression.” The same thing happened to the Russian Tsar in March 1917 leading the takeover by Bolsheviks in November. Recently, the revolution of 1978 in Iran saw the final exit of the Pehlavi Monarchy and substituted it with a questionable marriage between democracy and theocracy. On the African continent we have seen the fall of Haile Selassie in 1974. I wonder if the ruling houses in the Middle Eastern kingdoms will survive the end of this century.

Military coups have been popular means of getting rid of corrupt governments in Africa. The Second Republic in Nigeria was brought to an end because the legislature could not simply recognize that the country was collapsing, hence the need to impeach the President. Some say that the era of coup is over. I will prefer to advise the king that he should not take chances; he should do no wrong…

Finally, in the debate over the immunity of the executive, supporters of the provision have dubiously avoided mentioning its actual (historical) reasons; rather, they simply tell us that the executive need to be protected against the flood of litigations that will distract them from performing their duties. However, given the risk of corruption and the consequent overthrow of the government that the immunity provision engenders, I will rather prefer that we remove the immunity and, in its place, strengthen the law of defamation with special provisions that will raise the stake of unsubstantiated allegations of wrongdoing against the President, Vice President, Governors and their Deputies.

While deterring people with evil intention, the law will thus make it possible for citizens with evidence of wrongdoing against and the President or any governor to come forward and present them before the court of law. Once found guilty, the executive can be removed, imprisoned or executed as the law would require. The impeachment clause will then be redundant and removed. The ultimate power of removing the President, Governor or their Deputies will thus lie with the judiciary. Let us try it. Other than this, retaining immunity and impeachment clauses in a corrupt environment like ours is the surest invitation to coups and other non-constitutional means of changing the situation.

As for those who misused the immunity clause in the past seven years thinking that the day of reckoning will never come, their cry has come earlier than expected. The President too cannot hold back his tears. They will start flowing immediately Nigerians get shocked by the staggering statistics of corruption that took place in his office. The vulture is a patient bird. We are not in a hurry.

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