Of Immunity And Other Matters

culled from VANGUARD Sunday, December 19, 2004

WHILE  the debate on the immunity clause was going on,  President Olusegun Obasanjo threw up another question which is no less germane to the issue of how the immunity law has been misinterpreted and misapplied to protect high state officials even from acts that border on treason.

The president’s public response to Chief Audu Ogbeh’s letter throws open two quick insights: One, the president has proved himself complicit with votes manipulation. Two, the president has unwittingly admitted to being a participant in an impeachable act. The Chairman of the “ruling” party, the PDP, has, however, proved himself a truly honourable man and his timely letter to the president will stand in good stead. And with the alleged moves to force his resignation, the hawks within the party - the Peoples Destruction Party, (PDP)  – would only be doing him a favour because light indeed has no business under the stone. Audu Ogbeh’s letter is a revelatory and watershed document, while the president’s response suffers the luxturation of logic. Almost incoherent.

But let us be clear on this question of executive immunity: the immunity clause traditionally aims at protecting high officials of the state – the president, the governors and their deputies – from the consequences of any decisions carried out on strict behalf of the state, but also in strict compliance with the rule of law. For instance, no legislator can be prosecuted for initiating moves to impeach the president or close down government.

Highest scrutiny

The courts do not and ought not to grant leave to prosecute any official of the state when the question relates to the functions or decisions pertaining to the highest interests of the state. For instance presidents, of course on advice, could authorize the liquidation of a threat to the good health of the state by means that might not be subject to the highest scrutiny. Such decisions are often documented and classified and archived, and may be unsealed at the behest of the courts or at the expiration of a certain cycle of government.

But if the president uses the same authority, totally, without authorization by the highest council of state to liquidate political opponents or settle personal scores for example, that could never fall within the protection of the immunity clause. Such a decision ought to be investigated by an independent prosecutor appointed and empowered by the acts of parliament to scrutinize the actions of the president. If the president is found justifiably guilty, he could be made to face higher parliamentary scrutiny, leading to impeachment and possible deposition ,and thereafter prosecution when his immunity is stripped.

It is important to emphasize this for Nigerians who have known only tyrannical regimes and taken that for granted: the president’s power is not absolute. That is the meaning of democracy. The president is no law unto himself. The president is not the highest authority of state, he is just one part of the trinity. The president has the power to execute the will of the people as endowed in the parliament.

Sometimes, because the president supervises the pork barrel, and given the bread and butter and other existential dilemmas we confront, it does seem that the president’s power is often exaggerated.

In places where democracies are practiced, the president is often as human as the rest of us. The president of Nigeria must be subject to close parliamentary oversight and scrutiny, and in the process, the parliament of either the federation or the component states can withdraw the immunity granted the office of the president and of the governors respectively.

The courts can indeed prosecute the occupants of those offices, but only after parliament suspends their immunity through impeachment. In other words, what is granted immunity is the office, and not the person of the president or the governor.

If an incumbent president or governor misuses public funds against public finance regulations as ordained by the parliamentary act, or as in the Dariye case allegedly engages in criminal misconduct or is accused of provable misdemeanor warranting prosecution while in office, it falls incumbent on the parliament to withdraw their immunity and allow the courts to try them. For instance, Obafemi Awolowo had parliamentary immunity as leader of opposition and head of the shadow government in parliament.

But that immunity did not come to force when Awo faced both the  Coker commission and the courts over the treasonable felony case. Immunity granted to public officials is not absolute. The real failure and disappointment in Nigeria’s democratic transition since 1999 remains the legislature, which has never risen to its powerful and historical role, and thus been unable to offer the courts the weapons they need to restrain the demon of power riding freely above our battered heads. The Parliaments of the federation have acted in the most scandalous disregard for the will of the Nigerian people.

Which brings me to the questions raised by the president’s letter to Audu Ogbeh who had pointed out the slide occurring rapidly in the polity. From the contents of the president’s letter, we get the truth. It is now incumbent on the members of Nigeria’s parliament to establish the investigatory process that should scrutinize the president’s role in the shameful conduct in Anambra state, and possibly initiate impeachment proceedings against the president.

By his own admission, the president knows the rooster that cries in Anambra state. Nigerians should in fact begin to recall their parliamentarians, consult with them, and demand from them to act in accordance with the will of the people or face permanent recall.
The will of the people is to remove this blight that has infected our polity. The president and the governors must be made accountable for their acts in public office, immunity or not. That is the only act of faith that sustains and justifies any democracy.