1999 Constitution: Between Sections 188 and 308

culled from THISDAY, November 17, 2006

 In the past few months, the nation's constitution has undergone series of tests. These tests are those capable of unsettling the polity and creating serious crises. In one instance, the impeachment process provided for under Section 188 of the constitution had led to a situation where three individuals were laying claim to the governorship seat in Ekiti State. Eventually, the logjam was resolved by the resort to that extreme measure of declaration of emergency rule as provided in Section 305 of the same constitution.

Apart from Ekiti, the situtions in Anambra, Oyo and Plateau states have exposed the soft under-belly of the 1999 constitution which is the supreme law of our country. The impeachment process has been bastardised and misused both by those it is expected to check and those who are expected to use it as a check.

Section 188 is included in our constitution by its makers to prevent  the chief, executives of our 36 states and their deputies from misbehaving. This misbehaviour could border on  misuse  of the enormous powers at their disposal or misapplication of the huge resources of the state. The Section is also to protect the citizenry  from a governor who may have forgotten the contents of his or her oath of office.

The impeachment process is also expected to be one of the instruments of effecting the doctrine of Separation of Powers in a modern presidential system.The legislature which is a branch of government relies on the impeachment process to check the excesses of the executive and to keep them in line. More importantly, the impeachment process is expected to be an antidote to the iron-cast protection granted the president, governors and their deputies under Section 308. The immunity clause protects the beneficiaries from civil or criminal prosecution. The elected officials mentioned in the section cannot even be compelled to appear in court to give evidence.  Neither can they be arrested or detained.

By the provision of the immunity clause, it is almost impossible to do anything to an incumbent  governor even if he openly commits an offence. The governor of a state remains above our laws and immune to prosecution for any type of offence while his tenure lasts. That is why some governors are alleged to have indulged in care-free looting of the state treasury. Some governors have allegedly been indicted in the murder of political opponents while some others have been arrested abroad for money laundering and other criminal activities.

However, in recent impeachment process instituted by legislators in Bayelsa, Ekiti and Plateau states, the Economic and Financial Crimes Commission (EFCC) had been mentioned as the motivator, instigator and enforcer. The EFCC had been rightly accused of coercing legislators to embark on impeachment process against their governors. This obviously is an infraction of the constitution. It is trite law that where a person charged with the right to exercise discretional powers is being forced to utilise that power, then the result is illegality. It is the sole responsibility of the legislators, if they are convinced that the governor has ommited to do or commited an act which amounts to gross misconduct, to commence impeachment process to restore the dignity of the gubernatorial office. Again, by the Supreme Court decision in Fawehinmi Vs Inspector General of Police in the Bola Tinubu case, The EFCC or any law enforcement agency can investigate criminal allegations against a governor or the President. The highest court of the land had in that case ruled that "That a person under Section 308 of the 1999 constitution, going by its provision can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute. To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated”.
It is, therefore, normal for EFCC to forward its report to the House of Assembly or National Assembly to enable the legislature act as it deems fit. After the submission of the report, the EFCC has no further role in the matter except it is invited for further clarification or further testimony.

The framers of the constitution had created sections 308 and 188 based on certain assumptions. Section 308 is the modern version of the old saying that ‘Res potest peccarre’, that is 'the king can do no wrong' and that a sovereign cannot be tried in his own court under a law that he himself has made. In modern day governments, the immunity clause is to "equip the chief executive of states with powers that will enable them to exercise the freedom the action required for the day to day administration and to take difficult decisions which impact on the lives of the citizenry at short notice". The President, governors and their deputies are by Section 308 expected to have "free hand to act boldly and courageously for public good. In doing so, such governors or President would not be hindered by fear for self, for repercussions of actions embarked upon, for general public interest of a state or for national interests clearly defined-all legitimate actions undertaken during the pendency of term of office of a governor or President must be foreclosed from personal legal liability, hence the concept of immunity".

The framers of our constitution therefore expect the immunity clause  to make governance easy and protect the chief executive from undue distractions. However, this shield is also given on the rational assumption that those who aspire to be governors and president will be the best in terms of virtues and the values they hold dear. They will be honourable men who will neither participate in nor condone the violation of any section of the constitution, the document from which they derive their legitimacy. Like Justice Yahaya Akanbi, former chairman of the Independent Corrupt Practices Commission (ICPC) stated, "the whole idea of giving immunity is founded on the fact that those people who are covered by immunity will show themselves to be men of integrity and honour. They will be men who represent the best interest of the nation. The king does no wrong and so whoever is the President or governor (and their deputies) will do no wrong as they are seen as an embodiment of integrity of the nation and that they would not do things that are improper."

From the events in Bayelsa, Ekiti and Plateau states, there are strong indications that the optimism displayed by those who conceived the immunity clause has been misplaced.
Dr. Chidi Amuta once articulated the situation in Nigeria of today which showed how the objective behind the immunity clause had been defeated. He stated that: " a residual culture of official impunity inherited from military rule has been worsened by constitutional immunity granted to public officers with questionable background and worthless pedigree. So, people watch helplessly as those they ostensibly elected to govern them behave like reckless brigands licensed by the constitution to commit heinous crimes".

The framers of the constitution also believed that the lawlessness which immunity clause would encourage could be checkmated by an independent legislature holding on to the doctrines of separation of powers and checks and balances in a presidential system. But what do we have in Nigeria? We have legislative houses in most states where members are lackeys of the executives. The governors order the removal and enthronement of legislative leaders at will. Some state legislators get feeding allowances directly from their governor. That is why in some governors' lodges, you see legislators sitting on the floor or kneeling down to address the governor who sits like the almighty emperor. The governors were the first set of leaders to make nonsense of Section 188. They were the ones who started by manipulating legislators and getting them to remove deputy governors on flimsy excuses. Some deputy governors lost their positions simply because they did not come every morning to pay homage to the 'emperor-governors'.

Now, what goes round must come round. It is now the turn of these dictator-governors to face the repercussion of the misuse of power and abuse of constitutional process. I must state here that I am opposed to situations where in the desperation to impeach a seemingly bad governor due process as provided in Section 188 is not followed. At all times, there should be full compliance with the provisions of the constitution. Nobody should violate a section of the constitution under the pretext that he is doing so to protect other sections of the same constitution.There should be holistic, strict and consistent application of constitutional provisions. Where there is doubt or ambiguity, the courts are there to give interpretation. Otherwise, we can seek to amend the supreme law. Some of the violations of the impeachment provisions have been anchored on the frustrations of those who believe there are incontrovertible evidence to show that a governor had committed acts amounting to gross misconduct and yet, the state legislators refused to invoke Section 188 of the constitution. We may need to amend Section 308, so that the courts will also have a role in ensuring that a governor who commits a crime faces the consequence of his own temerity.

I believe Section 308 has offered too much protection, a carte blanche to those 74 officials. There is the need for that section to be amended to ensure it protects governors and the President only in the course of perfomance of their lawful and official duties. We can follow the United States example. There, immunity is not enshrined in the constitution. Rather, it was derived from judge-made laws and the leading authority on the issue is the Nixon Vs Fitzgerald case. In November 1968, Ernest Fitzgerald, an air force management analyst, testified before Congressional sub-committee that aero-space developmental projects would necessitate increase cost of  over two billion dollars. In January 1970, he was sacked in a cost-saving re-organisation by the Pentagon. Fitzgerald however believed he was witchhunted by his bosses because of his Congressional testimony, an act which was a violation of the Federal Civil Service rules. He therefore sued several members of the executive arm, including President Richard Nixon.

At the time of the case, Nixon was no longer in office. But, in his defence, the former president raised the issue of "presidential immunity". In the lead judgement read by Justice Powell, he said "the chief executive of the United States enjoys absolute immunity from damages, liability for official acts, even those within the "outer perimeter" of official responsibility". It is based on this decision that the same court in Paula Jones Vs President Bill Clinton in 1997 rejected the claim of Clinton that he enjoyed "qualified immunity". At the US Court of Appeals, Justice Bowman in his ruling in that case noted that “no presidential immunity of any kind is expressed in the constitution and that by the decision in the Fitzgerald case, unofficial acts such as the ones the Jones case was based are not within the perimeter, not even the outer perimeter of the president's official responsibility.”

From the foregoing, it is important that Section 308 be amended to allow the immunity therein to protect its beneficiaries only in their official acts. A governor who is involved in money laundering, looting state treasuries, killing of political opponents, illegal importation of arms, arming militant groups and other subversive activities cannot be acting within his official capacity or within the "outer perimeter of official responsibility". It should be possible for law enforcement agencies to put such a governor on trial and if convicted, he should be jailed. If the House of Assembly members feel comfortable with a convict who is in prison remaining as the governor of the state, so be it. But the offender would not have escaped justice.

Thus, the next National Assembly should consider the issue of amending Section 308 to avoid a situation where perpetrators of crime hide under state protection to act with impunity.It is also important for political parties, their members and all the voters to ensure that only credible men are elected into the legislature. We should elect only men who will hold the governors and President accountable to the people. The next set of legislators should be men who will not condone or cover-up a governor or president who has committed criminal acts.