It was alarming to hear that a Bill for an Act to strip the vice-president and governors of the immunity they enjoy in Nigeria has passed a second reading. It is disturbing, especially, coming on the heels of an unwarranted, unconstitutional and illegal declaration of a state of emergency by the Tinubu administration in Rivers State through which President Tinubu ill-advisedly removed the governor, deputy governor, and the elected members of the House of Assembly from office for six months based on an uncorroborated, purported security report known only to the President and his cabal of democracy assassins. For the avoidance of doubt, there is no place that the phrase ‘security reports’ was mentioned as a condition for the declaration of a state of emergency. Section 305(3)(d) is unmistakable that any danger of actual breakdown of law and order must be clear and present. Clarity means obvious, unambiguous, overt, objective, unequivocal, and proveable. It cannot be considered to be covert, clandestine, subjective, and hidden as it is with security reports.
It’s mind-boggling to imagine that if Governor Fubara and his deputy were not enjoying immunity from criminal prosecution, trumped up charges, like the trumped up state of emergency, would have been brought against them by a rampaging President who wants to use the imaginary powers of his office to usurp some of the states won by the opposition parties. Fubara and the deputy are from the Peoples Democratic Party (PDP) while the President is from the ruling incompetent All Progressives Congress (APC).
Under the watch of current APC administration, operatives of the security agencies rounded up innocent children protesting hunger and hardship and detained them indefinitely on trumped up charges for treason in open court against every known law. Certainly the administration will have no qualms summarily rounding up political opponents and castrating them politically in the name of trumped up treasonable charges. Tinubu in his broadcast declaring the state of emergency in Rivers State blamed Gov Fubara for all the problems in Rivers State without evidence. The Attorney General of the Federation even insinuated that Fubara blew whistle for the militants to begin operation in Rivers State. Your guess is as good as mine what would have happened to Fubara if he had no immunity. Leaving the Vice-President and the governors and deputy governors at the mercy of such a ruler will be like begging our democracy to collapse.
Immunity for the Governor and Deputy is guaranteed by section 308(1)(a)(b)(c)(3) of the 1999 Constitution as amended which states: “Notwithstanding anything to the contrary in this Constitution, … no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office; a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued. This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.
It’s important to note that no governor or deputy governor enjoys absolute immunity because according to section 188 of the 1999 Constitution as amended, any governor or deputy who misconducts himself can be removed by the elected representatives of the people after the judiciary has proved that he actually did so even before the expiration of office. This section ensures that it is the people who elected the Governor and the judiciary that have the power to remove the Governor, not the President. Hearing then that the National Assembly even contemplated removing immunity from the Vice-President, Governor and Deputy Governor is worrisome.
The position of this writer will not change even if the National Assembly adds the President to the list of the officials whose immunity should be removed. This is because, with or without formal immunity, the President is already enjoying immunity. He is the Commander-in-Chief of the Armed Forces and as such no member of the security agency can arrest him. He is also the Minister of Justice, through the Attorney General of the Federation, and as such, no legal officer can prosecute him. If the immunity is removed, the Vice-President, Governor and Deputy will now be at the mercy of the President. In this regard, the President will no longer need the declaration of a state of emergency with all its political fallouts to remove a governor. He will simply order his arrest, bring up some treasonable trumped up charges against the Governor, detain him indefinitely, as treason will be argued as not being bailable, try him in a highly compromised judicial environment and send him to jail or condemn him to death as he wishes.
Former President Olusegun Obasanjo unilaterally declared the office of his deputy vacant because of the insistence of the then Vice President Atiku Abubakar, to contest the post of President on the platform of another party. His declaration was unknown to any law in Nigeria. He set up an administrative panel to reach a decision that indicted the Vice President of unsubstantiated offences and used that indictment to disqualify him from contesting the 2007 presidential election. It is noteworthy that both decisions were quashed by the Supreme Court and he eventually contested for the 2007 presidential election. Has anyone wondered what would have happened to Atiku Abubakar if he didn’t have immunity? He would have been in Kirikiri maximum prison while the election of 2007 would be going on. This would have affected the stability of our polity then as Atiku Abubakar was known to have large political followership. This is in addition to the fact that Obasanjo declared a state of emergency in two states and removed the elected governors and members of the elected House of Assembly in both States.
One may even dare to say that Obasanjo had a very glaring security challenge in Plateau State and very glaring confusion in Ekiti in which he declared a state of emergency coupled with the fact that both governors were members of his own party. So, he didn’t use the instrumentality of state of emergency to capture states from the opposition. But in Tinubu’s case the security challenges were imaginary, based on spurious, unverified security report, and the governor removed was from an opposition party thereby raising the obvious conclusion that he used the instrumentality of the state of emergency to usurp the powers of political opponents and deplete the number of states in the control of the opposition.
In a developing nation, the benefits of the immunity clause cannot be overemphasized. First, it is a provision put in place to enable a President or Governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and the difficulty which may arise if he is being constantly pursued and harassed with court processes of a civil or criminal nature while in office. The Supreme Court even stated in the case of Amaechi v. INEC (2008) 5 NWLR (PT. 1080) 227 that the provision is designed to protect the dignity of the office. Can you imagine if a governor is allowed to face civil actions from an average of about four million persons in his state or the president from 200 million persons in this litigation prone country that the former Chief Justice of the Federation, Ariwoola, described as the most litigious nation on earth? Can you imagine if a sitting governor is charged to court on criminal charges by the Federal Government, which, by virtue of the law, is required to sit daily, and criminal procedure requires personal attendance of the accused till judgement is delivered? Which time and dignity will he have to work?
For the advocates of the removal of the immunity clause, have you considered that the executive appoints the Attorney General, who has the monopoly to decide who to try and who to discontinue his trial. Do you really think any Attorney General of a state can prosecute his boss while in office even if he does not have immunity? Don’t you think the executive will use state resources to conduct his cases both civil and criminal while in office if he doesn’t have immunity and who loses? Of course the people will lose because it is their resources that will be used to conduct the cases. But if he is sued or prosecuted after leaving office, he will fight for his freedom with his own resources because he doesn’t have access to state resources anymore.
It is obvious that immunity to these persons is a shield for our democratic stability not a permanent protection for the governors from prosecution. We must work towards preserving it in our constitution and persuade our Legislature to remove from office any president, vice president, governor or deputy governor, who has become incurably bad, incompetent or corrupt in office so he can face the consequences of his actions even before the expiration of his tenure. In this regard, I urge the National Assembly to drop the quest for the removal of immunity from the governors and their deputies from the constitutional amendment programme.