Removing Immunity Clause Will Undermine Executive Capacity

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Kayode Oladele

The recent misconduct of some state governors has generated growing concern among Nigerians on the need to amend the constitution and remove the immunity clause thereby exposing the governors and even the president to civil and criminal prosecution while in office. The removal of immunity clause, it is hypothesised, will check executive lawlessness, promote responsive and responsible leadership by the executive branch of government. However, this argument is trumped by the impeachment clause and suffers from a serious flaw, hence; the National Assembly should exercise restraint in rushing to any emotional calls for the amendment of the constitution. Laws are never passed by emotions; otherwise its consequences will further exacerbate the very problem it is intended to cure.

Under the current constitution, the President and state executives are uniquely immune from civil suit or criminal process or indictment while in office. The reason behind the provision is very simple- indicting or prosecuting a sitting President or governor would impermissibly interfere with the executive’s capacity and its ability to perform its constitutionally assigned functions and thus would be inconsistent with the constitutional structure. The point of immunity is to enable the president and the Governors to perform their designated functions effectively without fear that a particular decision or action may give rise to criminal personal liability. And because of the singular importance of the duties, diversion of their energies by concern with lawsuits would raise unique risks to the effective functioning of government. The concern of the framers of the Constitution is the chilling effect that civil or criminal liability would impose on the performance of executive duties.

The determination made by the framers of the constitution for the recognition of a sitting president or governor remains sensible. And despite the misconduct of some state executives, who have abused the well reasoned privilege, nothing has altered the wisdom behind the grant of immunity, the analytical framework applied and the conclusions reached at the time of drafting the constitution. No doubt, institution of criminal proceedings and execution of potential sentences would improperly interfere with their constitutional duties and be inconsistent with their status as either the president or state executives. Recognition of immunity from such suits will not leave the Nation without sufficient protection against misconduct on the part of the chief executives in light of other mechanisms creating incentives to avoid misconduct including impeachment.

The constitutional interest in ensuring the executives’ ability to perform their functions outweighs the competing interest in permitting civil or criminal to proceed while occupying that office. An inevitable result of the criminal litigation is that burdens will be placed on the executives that will hamper the performance of their official duties. An incumbent President or Governor must only be removed from office through an impeachment before being subjected to the criminal process. The Chief Executives should not be taken from duties that they alone can perform unless and until it is determined by the parliament that they are to be relieved of those duties.

The constitutional practice has always been that the president or governors cannot be prosecuted and even imprisoned while they are still in office prior to their impeachment. This is logical in law. Immunity of the president and the governors from criminal proceedings can also be justified on the grounds that their subjection to the jurisdiction of the courts would be inconsistent with their position as heads of the Executive branch. Because of their unique powers to supervise executive branch and assert executive privilege, the constitutional balance generally should favor the conclusion that a sitting president or governor may not be subjected to criminal prosecution. This is because; the possession of these powers by the president and the governors renders their prosecution inconsistent with the constitutional structure.

Impeachment was an established process in English law and government. It originated in the 14th century, when it became a means of initiating criminal proceedings based on “clamor,” or outcry. The Good Parliament of 1376 produced the first recognized cases of impeachment, the most important being that of William, 4th Baron Latimer, who had been closely associated with the government of Edward III. Subsequent subjects of impeachment have often been political figures, usually royal ministers. The process, moreover, is adversarial in nature and resembles, to that extent, a judicial trial (Melton 1998, 25).

The framers of our constitution incorporated the process with modifications into the fabric of Nigerian government. The Constitution provides the framework-the basic who’s, why’s, and how’s and the procedural intricacies reside in the internal rules of the National and States’ Assemblies.

The president and the state governors are elected directly through general elections. However, a criminal trial of a sitting president or a governor before impeachment will confer upon a single judge, the power to overturn the wish of the people as demonstrated in the general elections. Allowing criminal proceedings against a sitting executive will also aggrandize judicial power, encourage judicial activism and narrow constitutionally defined executive powers. Chief among the reasons is the availability of the impeachment route. It is, therefore, submitted that the power to perform this onerous task can be more fittingly done or handled by the representatives of the people, either the state assemblies or the National Assembly through an impeachment process

The president or a governor can be swiftly removed from the office for gross misconduct which includes the commission of a crime. Category of impeachable offenses is not limited to abuses of official power. As stated above, impeachment process is better suited to the task because it is fast and efficient. It will be done by the representatives of the people because the whole country or the entire state will be involved in the process. In addition, it is faster than a criminal trial and there is no appeal from the verdict of the assembly. Again, once the executive is removed, he can then be prosecuted and his removal will facilitate effective political administration of the State and place the political system on a healthy course.

Instead of removing immunity clause, we should be clamoring for real separation of powers between the three tiers of government. Separation of powers is not absolute; it is instead qualified by the doctrine of checks and balances. James Madison wrote that the three branches “should not be so far separated as to have no constitutional control over each other.” The system of checks and balances is designed to allow each branch to restrain abuse by each other branch. Impeachment is one of the ways the parliament can exercise control and check any abuse of power by the executive. The constitution does not establish the executive branch as unqualifiedly immune. The president and governors, for example, must look to the parliament for appropriations and to confirm the cabinet and other key appointees. The constitution specifically provides impeachment as a mechanism by which the parliament may remove the executive branch. In the words of James Madison, the oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.

Immunity from indictment or criminal prosecution is implicit in the doctrine of separation of powers. Under the constitutional plan, it can not be said that the courts have the same jurisdiction over the president and the governors as if they were ordinary citizens. Impeachment must precede prosecution, otherwise, it will me inconsistent with public policy. Further, by the very nature of the impeachment clause, there is already a textual prohibition of the institution of criminal proceedings against any officer subject to impeachment prior to that officer’s impeachment. The President is the symbolic head of the Nation and the Governors the chief executives of their states. To wound them by a criminal proceeding is to hamstring the operation of the whole governmental apparatus. It would impair a government function and cause unnecessary political distraction. Finally, a criminal trial of a sitting president or governor, however, would confer upon a single judge, the power, in effect, to overturn a national or state election. Considering the foregoing therefore, it is submitted that national or state assemblies, being the representatives of the people, are more appropriate venues for a necessarily political trial (impeachment) of the president or the governor.


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