Last week’s advocacy by the Socio-Economic Rights and Accountability Project (SERAP) that the security votes and immunity for presidents, vice-presidents, state governors
In fact, the immunity clause and security votes have been identified as the main causes of high profile corruption and executive recklessness in Nigeria.
SERAP Senior Legal Adviser Bamisope Adeyanju, in a statement last week, stressed the need for specific reforms that would strengthen Nigeria’s anti-corruption record and standing in global ranking. He said candidates for the forthcoming presidential elections should commit to scrapping security votes spending by presidents and state governors by repealing the constitution to include specific prohibition of security votes.
He said: ”They should also commit to a comprehensive audit of spending on security votes by presidents and governors since the return of democracy in 1999 and directing their Attorney General and Minister of Justice to take legal action in the public interest to hold governments to account on spending on security votes.”
“Candidates should commit to repealing the Electric Power Sector Reform Act of 2005 to address regulatory lapses which have continued to lead to systemic corruption and impunity of perpetrators, forcing ordinary Nigerians to pay the price for corruption in the electricity sector–staying in darkness, but still made to pay crazy electricity bills.”
The Immunity Clause as contained in Section 308 (1) (a) – (c); (2) and (3) of the 1999 Constitution offers the president, vice president, governor and deputy governor immunity from both criminal and civil prosecution while in office.
The section is believed to have provided protection for public officials and mainly responsible for massive looting and abuse of office in Nigeria. Some legal luminaries and analysts have argued that the removal of the criminal immunity clause from the Nigerian constitution will adversely affect the effective discharge of the functions of the executive arm of government.
They claim that since the president and state governors were elected directly through a general election, a criminal trial of a sitting president or a governor will confer upon a single judge, the power to overturn the wish of the people as demonstrated in the election.
They add that the constitution provides impeachment power as a check on the executive. This postulate seems to rely on the earlier concept of sovereign immunity which provided absolute immunity for the monarch – that is the “king can do no wrong.”
In a democracy, however, the president is no longer the sovereign; sovereignty is vested in the people. The doctrine of sovereign immunity applies to limitation of government rather than personal liabilities.
This does not mean that the president or other high public officials should not have any immunity in the faithful discharge of their public duties. Executive, legislative, or judicial immunity has a place to the extent that it helps to foster effective governance by shielding high public officials from frivolous civil lawsuits arising from the discharge of their public duties.
On the vexed issue of security votes, recent judicial pronouncements including the conviction of three former governors, namely, Jolly Nyame of Taraba state, Jonah Jang and Joshua Dariye both of Plateau state for corruption, have justified the clamour for the repeal of the provision for security votes. Jang, who was a military governor of Benue, defunct Gongola and Plateau states between 2007 and 2015, was convicted for diverting N6.3bn.
Dariye was convicted for N1.16bn fraud while Nyame was sentenced to 14 years in prison for N1.16bn fraud. Reading the lead judgment of the three-man appeal court panel on Nyame’s appeal, Justice Emmanuel Agim noted that in Nigeria, there was a pervasive tendency by public officers to regard or treat security votes collected by them as their personal entitlement or funds.
“This belief is completely wrong,” Justice Agim said. He added: “Any public officer in charge of such funds must either account for them or return them to the public coffers.
Failure to do so amounts to stealing. Every public officer or servant who receives government or public funds as security votes must use the money for the purpose, or render an account showing that it has been used for such purpose or return the money to the government treasury if it has not been used”.
SERAP’s advocacy could, therefore, be hinged on the devastating effect of the pervasive corruption in the country much of which is traceable to governors through the instrumentality of security votes as conduits and immunity clause as shield.
It is expedient to expunge these provisions from our statutes in order to pave the way for the prosecution of these officers while in office as a proactive measure in the fight against corruption.
The caveat here is that there should be a proviso that will protect certain categories of public officers from some form of encumbrances and unnecessary distraction from the effective discharge of their statutory duties and obligations.
