Much ado about executive immunity

Nwokoye ChukwudiMuch has been said about this executive immunity over the years that it becomes very compelling for me share my opinion about this burning issue.

It is no longer news that since our independence; corruption by our government officials have been the cankerworm that has eaten deep into our national fabric.

It is heartbreaking that our elected officials have turned our national wealth into their private pockets to the detriment of the poor masses. But in this my write-up I have to take a more objective approach about how best to tackle corruption. Many people have argued that the best way to tackle this official corruption is to take away the executive privilege of the governors, deputy governor, presidents and vice president. That way, they argued, would make it easier to go after them should they mismanage or steal the people’s money even while they are still in office. That also, according to this point of view, will make them afraid of doing anything that would attract their prosecution. I beg to disagree. The executive privilege as enshrined in Section 308 of the Constitution of the Federal Republic of Nigeria in a nutshell states that no criminal or civil proceedings which include arrests, imprisonment or even appearance for a prosecution should be instituted against them while they are still in office. History has shown that our problems are not because of good laws. Our problems had been about implementation of the laws. A law can be good all it wants but if the implementation is suspect, then there is nothing that would come out of it. I believe that it would be good to allow the governor, deputy governor, president or vice-president to serve out his term and then go after him! It would be good in order to avoid the distraction that would be occasioned by the controversy that would be generated by the court proceedings and the political undertones. The people’s business would suffer when the state or the federal government is put on standstill.

Former President Olusegun Obasango and many corrupt governors in the last dispensation were alleged to have used their office to amass stupendous riches. But instead of removing the immunity clause to be able to go after them while they were still in power, we have other checks and balances in the constitution. The impeachment clause under sections 143 and 188 as it affects the president and the vice-president; and the governor and his deputy respectively should be explored. Former President Olusegun Obasanjo was accused among other things of using Chief Aliko Dangote to buy up refineries and several other Nigerian Companies valued at billions of dollars. Obasanjo is yet to tell us how his paltry N20,000 he had in the bank prior to his assumption of office in 1999 suddenly produced dividends running into billions of dollars. How about the PTDF scandal? Many former state executives were alleged to have corruptly enriched themselves while in office. The former governor of Rivers state called, Peter Odili who was accused of diverting N24.6 Billions, N12.1 Billion, N4-3 Billion and N175 Million all meant for his state coffers into his own private account. James Ibori of Delta State was alleged to have used state funds to purchase a company called Willbross for $155 Million, purchased NAFCON for N20.5 Billion and was reported to have laundered several million Pound Sterling in offshore accounts.

He is currently facing some charges. Former Governor of Abia State, Orji Uzor Kalu, was accused of diverting funds belonging to his state in the amount of over N3.1 Billion. Lucky Igbinedion, the former governor of Edo state was recently accused of diverting over N16 Billion of his state funds. Chimaraoke Nnamani of Enugu State nko? He was accused of laundering N5.3 Billion belonging to Enugu state. Former governor of Jigawa State, Saminu Turaki, was accused of stealing about N33 Billion belonging to his state while in office. We have not forgotten Joshua Dariye of Benue State, Rev. Jolly Nyame of Taraba State, Depreye Alamieyesiegha of Bayelsa state. The list is endless. It is almost certain that if we remove the immunity clause from the constitution, the incumbent governors or the president would use the power of incumbency to fight his cases. How many judges would be courageous enough to hear and determine cases against the president? Which prosecutor would be courageous enough to even institute the case? Is it not the incumbents that appoint the Attorneys General? During the fight for and against Obasanjo’s 3rd term scheme, we know what the country went through when he wanted to use his power of incumbency to amend the constitution to buy another four years. If not that the forces against him which included the voice of the people which are the voice of God; were enormous, Obasanjo would have succeeded. With the Ghana-must-go being the order of the day, the executive in power can do anything. With all the hype about removing the immunity clause to be able to proceed against them while they are in office, then how come that after their tenure, we still have not been able to prosecute them? I wonder why they have not been in jail yet, now that they have left office. If we cannot easily put them away in jail after their tenure have expired and lack executive immunity, how can we put them in jail when they still have the incumbency powers and all the trappings of office. My opinion is that we should leave the Immunity Clause as it is. We should concentrate on getting a dossier on these people. Allow them to serve out their terms, seize their passports and then pursue them to disgorge them of the ill-gotten wealth. The world is no a global village, they can no longer stash those wealth in any foreign bank without detection.

Nigerians all over the world are watching with their eagle eyes. So there is no place to hide the monies and no place for them to hide without detection. Money laundering is a crime anywhere in the world and any suspicious activities in any bank account especially in the United States are reported to the authorities by the respective banks. So now, it is harder for anyone to successfully hide people’s money anywhere in the world without Nigerians and many nosy press people knowing about it. Also experience has shown that it is not the law or the policy that is our problem; it is the implementation of those policies. We can make the best laws or policies in the world but without the water-tight implementation devoid of politics, we are deceiving ourselves. As could be observed, going after them when they have already completed the tenure and weaned from executive privilege is easier and cost-effective than when they were in power. Most of the governors have already been disgorged of the ill-gotten wealth in lieu of total prosecution. One of the aims of prosecution is to get the people’s money back. The EFCC has succeeded to some extent in returning those stolen billions back to the coffers of the government. The next aim of prosecution is to imprison those that have looted the people’s treasury. That will act as a deterrent to others who harbor the intention of corruptly enriching themselves in the future. However, it is totally in order to reach a kind of a deal with the EFCC to return all the people’s money in lieu of imprisonment. Many people would argue that it is imperative that they also go to jail to serve as a lesson to others. However, in my opinion, I think that the most important thing is to get our money back, have them forfeit the illegally acquired property to the government. Imprisonment should not be an end on itself. The threat of imprisonment should be the joker that the EFCC should use as their bargaining tool. Coming to the EFCC, the most important thing for us is to make the EFCC totally independent. The law establishing the EFCC should be amended so that the body would be manned by an independent body of retired and reputable public servants preferably former Justices of the Supreme Court and men of integrity.

We have many of them in Nigeria and they do not even need to apply for the job. We should fish them out of retirement and ask them to serve their country once again, to stem the tide of corruption. They should be made to be answerable not to the president but to the Nigerian people through the elected representatives. Just like other climes, we should make a provision in the constitution where the crime buster could be impeached by not less than 2/3 majority of each of the two chambers of the legislative branch. The grounds for his impeachment and the procedure thereby should be stipulated in the constitution to avoid witch-hunting of the crime fighter. He should also not be under the command anybody. By this, I mean that he should not owe his office at the pleasure of one single individual. The head of the EFCC should be sort of an Independent Counsel, whose job is not to do the dirty job of the executive or to fight the president’s political enemies as Mallam Ribadu was reputed to have done. The Ribadu saga has also shown us that it is not good for our corruption czar to be under the chain of command of say, the police, or even the military. The crime fighter should not be under any chain of command, so that he would not be afraid of reprisals from his commanding officer or whoever his boss is, after he cease from holding the office. That would make him more focused and more independent.

In order to stem corruption and make the executive more focused is to change their tenure from two terms of 4 years each, to one 6 year tenure. A provision in the constitution to that effect should be made for 6 year tenure. It works in many states in the United States like the Commonwealth of Virginia where the term of the governor is only 4 years and no more. Experience has shown that some governors in the past dispensation started of well, doing the people business in terms of development and winning approvals from the electorates. However, they change courses after winning their second terms. Many governors were doing well in their first terms, but after their second terms were secure, they started to corruptly enrich themselves and their cronies. They start to position their chief cronies to take over from them so as to cover their tracks. This was the case with Olusegun Obasanjo, Chimaraoke Nnamani of Enugu State, Donald Duke of Cross River State, and even Orji Kalu of Abia State et cetera. Even in the United States, second terms especially when it involves the presidents had been a source of scandals for them.

Richard Nixon’s Watergate scandal was during his second term, Ronald Reagan’s Iran contract scandal happened during his second term, Lewinsky-gate happened during Bill Clinton’s second term and how about George Bush Jr.? It is better to give them one term of six years so that the fight for the second term as a do-or-die affair as we witnessed during Obasanjo’s misrule would be a thing of the past. The canker worm of corruption would be highly curtailed. I beleive that if this is done, we would be able to strike hard at corruption. Their executive immunity should remain since it is not the problem. The privilege protects not the person in office, but the office itself. The occupier of the office comes and goes, but the office remains.

CSN: 47918-2008-16-49

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