Removing Immunity Clause from the Constitution will undermine Executive Capacity

Removing Immunity Clause from the Constitution will undermine Executive Capacity

By

Kayode Oladele

The recent misconduct of some state governors has generated growing concern among Nigerians on the need to amend the constitution and remove the immunity clause thereby exposing the governors and even the president to civil and criminal prosecution while in office. The removal of immunity clause, it is hypothesized, will check executive lawlessness, promote responsive and responsible leadership by the executive branch of government. However, this argument is trumped by the impeachment clause and suffers from a serious flaw, hence; the National Assembly should exercise restraint in rushing to any emotional calls for the amendment of the constitution. Laws are never passed by emotions; otherwise its consequences will further exacerbate the very problem it is intended to cure.

Under the current constitution, the President and state executives are uniquely immune from civil suit or criminal process or indictment while in office. The reason behind the provision is very simple- indicting or prosecuting a ; sitting President or governor would impermissibly interfere with the executive’s capacity and its ability to perform its constitutionally assigned functions and thus would be inconsistent with the constitutional structure. The point of immunity is to enable the president and the Governors to perform their designated functions effectively without fear that a particular decision or action may give rise to criminal personal liability. And because of the singular importance of the duties, diversion of their energies by concern with lawsuits would raise unique risks to the effective functioning of government. The concern of the framers of the Constitution is the chilling effect that civil or criminal liability would impose on the performance of executive duties.

The determination made by the framers of the constitution for the recognition of a sitting president or governor remains sensible. And despite the misconduct of some state executives, who have abused the well reasoned privilege, nothing has altered the wisdom behind the grant of immunity, the analytical framework applied and the conclusions reached at the time of drafting the constitution. No doubt, institution of criminal proceedings and execution of potential sentences would improperly interfere with their constitutional duties and be inconsistent with their status as either the president or state executives. Recognition of immunity from such suits will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executives in light of other mechanisms creating incentives to avoid misconduct including impeachment.

The constitutional interest in ensuring the executives’ ability to perform their functions outweighed the competing interest in permitting civil or criminal to proceed while occupying that office. An inevitable result of the criminal litigation is that burdens will be placed on the executives that will hamper the performance of their official duties. An incumbent President or Governor must only be removed from office through an impeachment before being subject to the criminal process. The Chief Executives should not be taken from duties that only they can perform unless and until it is determined by the parliament that they are to be relieved of those duties.

The constitutional practice has always been that the president or governors can not be prosecuted and even imprisoned while they are still in office and prior to their impeachment. This is logical in law. Immunity of the President and the Governors from criminal proceedings can also be justified on the ground their subjection to the jurisdiction of the courts would be inconsistent with their position as heads of the Executive branch. Because of their unique powers to supervise executive branch and assert executive privilege, the constitutional balance generally should favor the conclusion that a sitting President or Governor may not be subjected to criminal prosecution. This is because; the possession of these powers by the President and the Governors renders their prosecution inconsistent with the constitutional structure.

Such powers, which relate so directly to their status as Commander in-Chief or Chief security officers, are simply incompatible with the notion that the President or the Governors could be made a defendant in a criminal case and criminal proceedings and execution of potential sentences would improperly interfere with their duties and be inconsistent with their status. Their status as defendants in a criminal case would be repugnant to their office as Chief Executive, which includes the power to appoint judges and oversee prosecutions. In other words, jus t as a person cannot be judge in his own case, these executives cannot be prosecutors and defendants simultaneously. Most importantly, courts would be unable to subject powerful officials to criminal process and it is doubtful whether it is practical to have a prosecutor who is part of the Executive Branch prosecute the President or Governor.

Prosecution of a sitting president or Governor prior to impeachment would create serious practical difficulties and interruption in political administration. The reason is simple, if the constitution is amended and the immunity clause is removed, the question then becomes at what point will the executive be impeached? Is it while the criminal proceedings are going on against him or after his trial and conviction? Obviously, it cannot be during the pendency of criminal proceedings because an accused person is presumed innocent until found guilty which must be proved beyond reasonable doubt. Under such circumstance, an impeachment can not proceed until a court had resolved a variety of complicated threshold legal questions and hold the Chief executive criminally liable.

A crimi nal trial in court can take several months or years to conclude and the accused has the right of appeal. In this way, a President or a Governor may complete his term before he is finally convicted. At the same time, the president or the Governor may spend a considerable amount of his time in office meeting with his legal team to prepare a defense to the criminal allegations against him. Hence, putting aside the possibility of criminal confinement, the severity of the burden imposed upon the President or the Governors by the initiation of a criminal prosecution and also from the need to respond to such charges through the judicial process would seriously interfere with their ability to carry out their functions. An individual's mental and physical involvement in the preparation of his defense both before and during any criminal trial would be intense, no less so for the President or the Governor than for any other defendant. The process contemplates the defendant's attendance at trial and, indeed, his right to confront witnesses who appear at the trial.

The U.S Department of Justice's consideration of this issue after the Clinton’s case, examined two distinct legal contexts that were prepared in 1973 after the Watergate scandal. The Office of Legal Counsel ("OLC") prepared a comprehensive memorandum in the fall of 1973 that analyzed whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office. In considering the various submissions, the Justice Department in a Memorandum cautioned against the removal of immunity on the ground that the point of immunity is to enable the president and his vice to perform their designated functions effectively without fear that a particular decision or action may give rise to criminal personal liability. And because of the singular importance of their duties, diversion of their energies by concern with lawsuits would raise unique risks to the effective functioning of government.

The Memorandum recognizes three types of burdens that merit consideration namely: (a) the actual imposition of a criminal sentence of incarceration, which would make it physically impossible for the President to carry out his duties; (b) the public stigma and opprobrium occasioned by the initiation of criminal proceedings, which could compromise the President's ability to fulfill his constitutionally contemplated leadership role with respect to foreign and domestic affairs; and (c) the mental and physical burdens of assisting in the preparation of a defense for the various stages of the criminal proceedings, which might severely hamper the President's performance of his official duties.

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The Memorandum for the Attorney-General states in part as follows:

“In assessing the significance of these burdens, the Justice Department considered two features of the U.S constitutional system: First, the Constitution specifies a mechanism for accusing a sitting President of wrongdoing and removing him from office. See U.S. Const. art. II, § 4 (providing for impeachment by the House, and removal from office upon conviction in the Senate, of sitting Presidents found guilty of "Treason, Bribery or other high Crimes and Misdemeanors"). While the impeachment process might also, of course, hinder the President's performance of his duties, the process can be initiated and maintained only by politically accountable legislative officials. Supplementing this constitutionally prescribed process by permitting the indictment and criminal prosecution of a sitting president would place into the hands of a single prosecutor and grand jury the practical power to interfere with the ability of a popularly elected President to carry out his constitutional functions.

Second, "[t]he President occupies a unique position in the constitutional scheme." Fitzgerald, 457 U.S. at 749. As the court explained, "Article II, § 1 of the Constitution provides that '[t]he executive Power shall be vested in a President of the United States . . . .' This grant of authority establishes the President as the chief constitutional officer of the Executive branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity." Id. at 749-50. In addition to the grant of executive power, other provisions of Article II make clear the broad scope and important nature of the powers entrusted to the President. The President is charged to "take Care that the Laws be faithfully executed." See U.S. Const. art. II, § 3. He and the Vice President are th e only officials elected by the entire nation. See id. art. II, § 1. He is the sole official for whose temporary disability the Constitution expressly provides procedures to remedy. See id. art. II, § 1, cl. 6; amend. XXV. He is the Commander in Chief of the Army and the Navy. See id. art. II, § 2, cl. 2. He has the power to grant reprieves and pardons for offenses against the United States. See id. He has the power to negotiate treaties and to receive Ambassadors and other public ministers. See id. art. II, § 2, cl. 2. He is the sole representative to foreign nations. He appoints all of the "Judges of the supreme Court" and the principal officers of the government. See id. art. II, § 2, cl. 2. He is the only constitutional officer empowered to require opinions from the heads of departments, see id. art. II, § 2, cl. 1, and to recommend legislation to the Congress. See id. art. II, § 3. And he exercises a constitutional role in the enactment of legislation through the presentation requirement and veto power. See id. art. I, § 7, cls. 2, 3.

Moreover, the practical demands on the individual who occupies the Office of the President, particularly in the modern era, are enormous……. In the two centuries since the Washington Administration, the demands of government, and thus of the President's duties, have grown exponentially. In the words of Justice Jackson, "[i]n drama, magnitude and finality [the President's] decisions so far overshadow any others that almost alone he fills the public eye and ear." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J., concurring). In times of peace or war, prosperity or economic crisis, and tranquility or unrest, the President plays an unparalleled role in the execution of the laws, the conduct of foreign relations, and the defense of the Nation.

The Constitution states that the "executive Power shall be vested in a President." Art. II, § 1. This constitutional delegation means that a sitting President is unusually busy, that his activities have an unusually important impact upon the lives of others, and that his conduct embodies an authority bestowed by the entire American electo rate. . . . [The Founders] sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many. 520 U.S. at 711-12. The burdens imposed on a sitting President by the initiation of criminal proceedings (whether for official or unofficial wrongdoing) therefore must be assessed in light of the Court's "long recogni[tion of] the 'unique position in the constitutional scheme' that this office occupies." Id. at 698 (quoting Nixon v. Fitzgerald, 457 U.S. at 749).”

The Memorandum, concluding that the determinations made by the Justice Department in 1973, both in the Office of Legal Counsel (OLC) memorandum and in the Solicitor General's brief, remain sound, states that given the unique powers granted to and obligations imposed upon the President, it is clear that a sitting President may not constitutionally be imprisoned. It reasoned further that the “physical confinement of the chief executive following a valid conviction would indisputably preclude the executive branch from performing its constitutionally assigned functions.

There are incidental powers, belonging to the executive arm, which are necessarily implied from the nature of the functions, which are confided to it. Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office. The Memo however, recognize the process of impeachment as the most potent and legitimate form of checking the excesses of the executives. That once the president is impeached, the criminal process against him can then be initiated.

The above analysis should also be the case with Nigeria. The mere fact that some governors have abused this executive privilege does not mean that we should throw the baby away with the bath water by removing the immunity clause from our constitution.

The Pr esident and the state governors were elected directly through a general election. However, a criminal trial of a sitting president or a governor will confer upon a single Judge, the power to overturn the wish of the people as demonstrated in the general elections. Allowing criminal proceedings against a sitting executive would aggrandize judicial power and narrow constitutionally defined executive powers. Public policy disfavors prosecution of a sitting executive. Chief among the reasons is the respect for the office as a chief executive and the availability of the impeachment route. It is therefore, submitted that the power to perform this onerous task can be more fittingly done or handled by the representatives of the people, either the state assemblies or the national assembly through an impeachment process.

Impeachment was an established process in English law and government. It originated in the 14th century, when it became a means of initiating criminal proceedings based on “clamour,” or outcry. The Good Parliament of 1376 produced the first recognized cases of impeachment, the most important being that of William, 4th Baron Latimer, who had been closely associated with the government of Edward III. Subsequent subjects of impeachment have often been political figures, usually royal ministers. The process, moreover, is adversarial in nature and resembles, to that extent, a judicial trial (Melton 1998, 25).

The framers of our constitution incorporated the process, with modifications, into the fabric of Nigerian government. The Constitution, provides the framework-the basic who's, why's, and how's and the procedural intricacies reside in the internal rules of the National and States’ Assemblies. Technically, impeachment is the parliament’s quasi-criminal proceeding instituted to remove a public officer, not the actual act of removal. Most references to impeachment, however, encompass the entire pr ocess, beginning with the House's impeachment inquiry.

According to Matthew R. Romney of the University of Utah in his article, The Origins and Scope of Presidential Impeachment, at its most basic level, impeachment is the assertion of power by a legislative body over an individual who cannot be removed by any other way. Practically all who have written on the subject agree that impeachment involves a protection of a public interest, incorporating a public law element, much like a criminal proceeding.

The President or a Governor can be swiftly removed from the office for gross misconduct which includes the commission of a crime. Category of impeachable offenses is not limited to abuses of official power. As stated above, impeachment process is better suited to the task because it is fast and efficient. It will be done by the representatives of the people because the whole country or the entire state will be involved in the process. In addition , it is faster than a criminal trial and there is no appeal from the verdict of the assembly. Again, once the executive is removed, he can then be prosecuted and his removal will facilitate effective political administration of the State and place the political system on a healthy course.

Instead of removing immunity, we should be clamoring for real separation of powers between the three tiers of government. Separation of powers is not absolute; it is instead qualified by the doctrine of checks and balances. James Madison wrote that the three branches "should not be so far separated as to have no constitutional control over each other." The system of checks and balances is designed to allow each branch to restrain abuse by each other branch. Impeachment is one of the ways the parliament can exercise control and check any abuse of power by the executive. The Constitution does not establish the executive branch as unqualifiedly immune. The President and Governors, for example, must look to the parliament for appropriations and to confirm the Cabinet and other significant appointees. The Constitution specifically provides impeachment as a mechanism by which the parliament ma y remove the executive branch. In the words of James Madison, the oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.

Immunity from indictment or criminal prosecution is implicit in the doctrine of separation of powers. Under the constitutional plan, it can not be said that the courts have the same jurisdiction over the President and the Governors as if they were ordinary citizens. Impeachment must precede prosecution, otherwise, it will me inconsistent with public policy. Further, by the very nature of the impeachment clause, there is already a textual prohibition of the institution of criminal proceedings against any officer subject to impeachment prior to that officer’s impeachment. The President is the symbolic head of the Nation and the Governors the chief executives of their states. To wound them by a criminal proceeding is to hamstring the operation of the whole governmental apparatus. It would impair a government function and cause unnecessary political distraction. Finally, a criminal trial of a sitting President or Governor, however, would confer upon a single judge, the power, in effect, to overturn a national or state election. Considering the foregoing therefore, it is submitted that National or State Assemblies, being the representatives of the people, are more appropriate venues for a necessarily political trial (impeachment) of the President or the Governor.

Kayode Oladele, Esq., is a U.S based, International Law Attorney