As immunity begets immunity

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By Josef Omorotionmwan
EVEN where the President of a country dies intestate these days, it may not come as a surprise. After all, most deaths now come suddenly.

Since we are not privy to the will of the late President Musa Yar’Adua, we have no way of knowing whether a particular item, the case of Yar’ Adua vs The Leadership Newspapers was properly accommodated in his will. But how much right has a man after death?

Death and sleep are closely related. They differ only in degree. You keep denying them until they really occur. In the particular case of the late Yar’Adua, the fact of his illness remained a top secret, even unto death.

If only the Saudi authorities knew what happened, they would not blame Nigerians for being carefree about their President. All those who would have flooded the entire place with get-well cards were told that the man was having a bed rest.

And suddenly, we even abandoned our African tradition of broadcasting and announcing afflictions because you never can tell at whose back yard lies a remedy. From very early in life, we were taught to believe that if you hid a disease, it would kill you.

But in the case of Yar’Adua, anyone who dared mention that he was ill simply landed himself in deep trouble. The Leadership Newspaper Group must still be telling its story to whoever cares to listen. Then newspaper had in its issue of November 8, 2008 reported that the President was ill.

With the speed of lightning, the President slammed a five-count charge on Sam Nda-Isaiah (Chairman/Editor-in-chief); Abdul–Razaq Bello (Editor, Daily); Lara Olugbemi (Weekend Editor); and Simon Imobo-Tswan (Reporter), accusing them of allegedly conspiring to indulge in illegal act, defamation of character, injurious falsehood, painting or engraving matter known to be defamatory and sales of painted or engraved materials containing defamatory matters.

The company’s plea that the President could not sue while in office was quickly thrown out at the Abuja Chief Magistrates Court.

At the appellate level, however, the ruling of Chief Magistrate Sunday Ochimane collapsed. Hear Hon Justice Abubakar Talba: “Chief Magistrate Sunday Ochimane erred in law when he refused to adjourn the case sine die, even when it was obvious that there is an infringement on the rights of the accused persons as enshrined in Section 36(5) and (6) of the 1999 Constitution… Section 308 0f the 1999 Constitution has undergone intense scrutiny by superior courts in the country and it is clear that it is intended to confer absolute immunity without barring them from enforcing their fundamental human rights”.

The import of this ruling is that the rights of the accused persons have been abridged ab initio since they cannot compel the President to appear as a witness as he enjoys absolute immunity. This is where the issue of fair hearing comes into full focus. Finally, the Appeal Court ruled: “There is merit in the appeal and the ruling of the Chief Magistrate is set aside. This case is set aside sine die”.

In a sense, immunity for one is immunity for all: He who cannot be sued can also not sue. This is immunity in the reverse –for as long as chief executives remain immune from public prosecution, the public is also immune from prosecution by them. The precedent had been established earlier in the cases of Tinubu vs IMB Securities and Mediatech vs Lam Adesina, where the courts held that the respondents were shielded from prosecution.

Like any other thing in Nigeria, people easily point to instances of the abuse of the immunity clause as currently contained in our Constitution. We have also maintained that Nigeria should not be in a hurry to remove the clause from the Constitution because the Constitution is for all times, not something that should be tinkered with every day.

Nigeria is one country where politicians hardly accept defeat in electoral contests. That explains why they are quick at rushing to Elections Petitions Tribunals immediately after every election. Even after they have been thoroughly beaten at the Tribunal and appeal court levels, they must look for ways and means of disturbing the winner from performing his duties. One obvious device is to keep instituting frivolous court cases with a view to keep him running between the courts and his office throughout his tenure. Meanwhile, governance suffers.

There is the mistaken view that the immunity clause is an attempt to promote chief executives above the law. Somewhere along the line, somebody has abandoned his duty post. The framers of the Constitution saw the need to insulate Governors and Presidents from frivolous court actions that would distract them from quality governance and they provided the immunity clause.

All the same, the framers of the Constitution realised that some Presidents and Governors might abuse the powers conferred on them by the immunity clause. When that happens, the legislators should first impeach them so that they would be stripped of immunity, after which they would become ordinary citizens, when they could be tried for their crimes. The missing link is that legislators are not yet alive to their responsibilities!

Essentially, the immunity clause is the best protection for those intent on serious governance. It presupposes that every Chief Executive is in the business of serious governance. We are gradually getting there. Without prejudice to other states, indigenes of Edo, Akwa Ibom, Rivers, Lagos, Imo, etc, would readily accept that their Governors are doing well and that frivolous court actions should not be allowed to impede the serious business of quality governance.

As our assemblymen run around, looking for what to remove from the Constitution, they should leave the immunity clause alone. By the time everyone starts playing his assigned role in the Constitution, it will be found that the immunity clause is a safety valve in the system.

 

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