By Ogaga Ifowodo
Whatever good intentions the framers had in enshrining a sweeping immunity clause in Section 308 of the Constitution, it is now beyond doubt that it constitutes a clear and present danger to the political and moral health of Nigeria.
The immunity clause not only sanctifies, ab initio, criminal behaviour by the said public officials but also gives them every incentive to be vile and depraved to their heart’s content—to turn immunity into impunity. A president or a governor could be the very embodiment of moral turpitude and remain in office, the hands of justice nailed to the floor under his desk.
Moral turpitude is defined by the Oxford English Dictionary as “Wickedness or depravity of character.” An act of moral turpitude, according to the Merriam-Webster dictionary, is one that “gravely violates the moral sentiment or accepted moral standards of the community,” adding that crimes involving moral turpitude have“an inherent quality of baseness,vileness, or depravity with respect to a person’s duty to another or to society in general.”Such as rape,forgery, robbery,theft and perjury. Normally, a person adjudged to have committed any of these acts would be considered unfit to hold public office.
The same Constitution disqualifies from election as president, governor, senator or representative any person who has been “convicted and sentenced for an offence involving dishonesty” or has been “indicted for embezzlement or fraud.” Why then a seemingly impregnable shield of immunity from prosecution while such a person is in office, at the time it matters most?
The untenable answer is that a president or governor ought to be shielded from the distractions of frivolous charges or malicious prosecution, the sort likely to be trumped up by political enemies. But criminal charges are unlikely to be filed against a president or governor without reasonable cause, without prior investigation and the establishment of a prima facie case. Or it is said that the people, through the legislature, would promptly impeach a wicked and depraved president or governor.
The abject failure of this hope has led to the parade of presidents and governors who looted or loot the treasury to the ground, sometimes with the active connivance of compromised legislators.
And to the feeble efforts of the courts to prevent the catastrophic effects of a purblind interpretation of the clause. Giving his rationale for the claw-back decision that Section 308 does not confer immunity to investigation in Fawehinmi v Inspector-General of Police,
Supreme Court Justice Samson Uwaifo said 14 years ago that to “hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated”. “Suppose,” he said, “it is alleged that a governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept it in a particular bank or used it to acquire property.
Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be precluded in section 308 from investigating to know the identity of the man killed, the cause of death from autopsy report, the owner of the car taken to the workshop and if there is any evidence from the inspection of the car that it hit an object recently, more particularly a human being; or to take steps to recover the gun and test for ballistic evidence; and generally to take statements from eye-witnesses of either incident or killing [?]. Or to find out (if possible) about the money lodged in the bank or for acquiring property, and to get particulars of the account and the source of the money; or the property acquired?”
Let me add one more scenario. Suppose a governor has been carrying out an adulterous relationship for two years with the wife of his personal driver. And for fear of losing his job, the driver, who is aware of the affair, unknown to the governor, suffered in silence.
Until one day, enraged by yet another trifling lapse in concentration, the governor berated then threatened to sack him. And in the evening, back in the state house, the governor does actually sack the driver amidst another round of merciless scolding. At which point the driver snaps and seeking to salvage his dignity threatens to expose the governor. And the governor, enraged and panicky all at once, shoots the driver dead as he turns to leave. We may agree now that the police can investigate the crime but what sense does it make to shield the governor from criminal proceedings?
The case of one Peter AyodeleFayose, impeached former governor of Ekiti State, allegedly rigged into office through a military operation the second time, but who remains in office because of the licence for impunity given him by the accursed immunity clause speaks of the worst possible form of moral turpitude. If the clause cannot be repealed, it must at the very least be amended with the introduction of the qualifying phrase: “In the performance of the duties of his or her office, the president, governor . . .” Else, we might as well do without a constitution.