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Immunity from Prosecution for Executive Heads of Governments Under Section 308 of the Republican Constitution of Nigeria 1999: To Stay or Not to Stay? By Prof. Jim Akhere USA The recent clamour by some prominent Nigerians, President Yaradua and the Catholic Archbishop John Onayekan inclusive, that the immunity clause in our 1999 Constitution –Section308 of the Constitution, granting serving presidents and vice presidents and governors and deputy governors protection from prosecution during the pendency of their terms in office be expunged from the Constitution should, in my considered view be approached with extreme caution. There is an Esan adage that people should not, when intending to roast a snake make a fire the length of a snake for when the snake is roasted it is bound to coil considerably. We as a people should not, because some of the governors we most negligently elected into offices but turned out to be worse than robbers, change an important provision of our constitution that was meant to operate to the benefit of the polity by conferring dignity on the persons elected into otherwise dignified positions. The wisdom behind that provision, which we inherited from our colonial masters, should not be discountenanced It is pertinent to take a cursory look at the said constitutional provision. Section 308. “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 who 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. Subsection 3 of the section spells out specifically the persons to whom the privilege of immunity from prosecution applies as the president, the vice president, governors and deputy governors. Before we consider whether or not the immunity makes sense and should be retained or scrapped, it is important to note that it is time limited. It is restricted only to the period in office of the person covered therein. Besides, in law the statute of limitation is relevant only in civil matters, for as we say in legal parlance, time does not run against the state A crime can be prosecuted no matter when the alleged criminal is apprehended The system of government we operate today in Nigeria is an amalgam of at least three systems –the British system, the American system and our native systems and these are a legion. The immunity doctrine is most germane to the British type government where the idea of the Crown that does no wrong has a strong root The crown in England transcends the three arms of government It is, as an institution, part of the parliament, part of the executive and part of the judiciary all in one in a nation with no written constitution. The crown is an embodiment of the British government It will be unthinkable for the person occupying the throne of England to be subject to prosecution The dignity and honour attaching to the throne is the same the British wanted to attach to our prime minister (president under the present American presidential system represented by our 1999 Constitution) and governors. But alas see what we have in Nigeria in our presidents and governors. . In the United States of America, sovereign immunity does not have the same foundation as the British type immunity. There, it is based on the notion that there can be no legal rights against the authority that makes the law on which the rights depend. This has become enshrined in an American statute. Thus through different routes Britain and the US recognize and retain the type of protection from prosecution we are now debating to strip our president and governors of. If we strip our elected executives of that protection while in office, the consequences will be disastrous. 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 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 The solution to the thievery and monumental fraud of some of those we elect into offices lies not in the elected officers nor in the constitution but in us. 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. This is only possible if we undertake a complete re-orientation in our polity by emphasizing morality over immorality, honesty over dishonesty, integrity over dubiousness, hard work over indolence, and respect for persons of character over respect for persons with ill gotten wealth. A society imbued with these values will more easily be able to elect credible leaders of integrity who will not plunder the people’s treasury and who will truly be worthy symbols of the polity and not rogues in wolf clothing.
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