Immunity clause and post tenure prosecution

Culled from Daily Sun

Our Reporter October 28, 2013

 

By RAZAQ BAMIDELE

When the Senate Committee on Constitution Review under the leadership of the Deputy Senate President, Ike Ekweremadu organized public hearing over the exercise, one of the aspects of the constitution that elicited the hottest debate is the immunity clause.
The clause, which is number 308 in the 1999 constitution provides shield for the President, his vice as well as governors and their deputies against prosecution as long as they are in office. The outcry that followed the insistence of a section of the country to retain the controversial clause was borne out of the belief that it gives room for high level corruption and outright impunity.
The Special Adviser to President Goodluck Jonathan on Political Matters, Dr. Ahmed Gulak believes that retention of the clause in the constitution would prevent “some unscrupulous persons, who are bent on getting at public officials out of sheer envy, from capitalizing on its removal to cause detractions in the system.”
Toeing Gulak’s line of thought is the Governor of Ondo State, Dr. Olusegun Mimiko who said that “public officials should not be distracted or exposed to frivolous litigations from unscrupulous elements that are out to get at them out of sheer envy and not vide constructive criticism”.
While arguing against its removal, Mimiko warned against “any action that can cause distraction that would not allow those saddled with responsibility to lead the people,” reminding that “the immunity clause is not new and not peculiar to Nigeria.”
The disdain of Nigerians for the clause was manifested in the memoranda collected by Ekeremadu’s committee as an overwhelming majority that submitted papers called for an outright removal. And when the public hearing results were submitted to the House and it was glaring that its removal was supported by a majority of the population proponents of its removal were estatic, shouted hallelujah!
The Executive Director of the Coalition Against Corrupt Leaders (CACOL), Debo Adeniran described the decision to remove the offending Clause as good ridance. “It is the best thing that has happened to the country in recent times,” Adeniran submitted adding that “whoever needs immunity to function is a criminal.”
However, some see the development as an avenue to fight corruption, while others expressed apprehension that it would not stop the monster because, according to them, corruption is a cankerworm that has eaten too deep in the country’s fabric.
The Social Economic Rights and Accountability Project (SERAP), is of the view that removal of the clause may not make any difference. Director of the organization, Adetokunbo Mumuni reminded that if only 76 public officials enjoy immunity of eight years, how come other public office holders without protection, who are found corrupt are not prosecuted?
He also wondered why former heads of government, who were alleged to be corrupt were not prosecuted after leaving office. He said this has not been so because, according to him, they are associates of those in power.
This must have informed, Adeniran’s stand that the purported removal “is just a tricky ploy to cajole the populace to believe that the government is responsible, sensitive and responsive to the yearning and aspiration of the Nigerian people.”
In his view, the National Publicity Secretary of the Save Nigeria Group (SNG), Yinka Odumakin sees the removal as “removing the shield and cover protecting the beneficiaries of the clause.”
A great percentage of the Human Rights and Civil Society organizations are however of the opinion that the removal of the immunity clause cannot check the spate of corruption in Nigeria, adding that even impunity is a bigger challenge to the country than corruption.
Mumuni of SERAP, and Adeniran of CACOL are of the belief that emphasis should be on strengthening and thorough enforcement of the criminal law in the country, believing that Nigeria has enough potent criminal law in the statutory book to deal with all acts of impunity.
The Secretary-General of a pan Yoruba socio-cultural, economic and political pressure organization, Razaq Olokoba regretted that “lack of political will to enforce all the relevant criminal laws in our legal books is the bane of our society. He is of the view that until some past leaders are made to face full length of the law to answer questions on their past misdeeds, “impunity and corruption would persist in our society.
Olokoba asked the authorities to check records of some bigger democracies to see how they have dealt with their former corrupt leaders.
If the constitution review exercise would be implemented, about 85 new clauses may be part of amendment to the 1999 constitution. And if the immunity clause aspect is implemented, beneficiaries of the clause would vacate office if convicted of any criminal offence.
If one takes up Olokoba’s challenge on foreign Heads of Government that were prosecuted and even jailed, almost a dozen would be found the world over. Mentioning a couple of them would suffice.
A former Argentinian president, Reynaldo Bignone was sentenced in 2010 for crime against humanity. A former Costa Rican president , Rafael Calderon in 2009 was sentenced to five years imprisonment for corruption while in office. A Taiwan leader, Chen Shin-Bian in 2009 was jailed for corruption, while his Pakistan counterpart, Peroez Musharaf was also sent to detention in 2007 for an offence against a senior judge.
Also, the Peruvian former President, Alberto Fujimori, former Liberian President, Charles Taylor, Mongolian President, Nambaryn Enkhkabayar, Egypt former President Hosni Mubarak and Israeli former leader, Moshe Katsav, and many other past leaders across the world were also made to face the wrath of the law for various offences committed while in office.
The civil society groups in Nigeria that expressed apprehension about the potency of immunity removal to fight corruption and impunity hinge their stand on the fact that the non prosecution of past allegedly corrupt leaders.
CACOL boss, Adeniran, who has made endless trips to the office of the Economic and Financial Crime Commission (EFCC), to call for probe of some past leaders who were alleged to have corruptly enriched themselves but to no avail said, until scapegoats are made of some of past corrupt leaders, others would be emboldened to continue in their corrupt ways of life.
He finds it disheartening that some people who are supposed to be in jail are serving in advisory capacity to the nation their past actions and inactions had wrecked.
The poser now therefore is, can we get someone with political will to implement and enforce our numerous criminal law with a view to bring to book, those who render the country prostrate? Would it continue to be the case of “whose hands are clean to cast the first ston?

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