by Maduka Onwukeme
“And when Impunity mates Immunity, they produce an inscrutable offspring called Imuniti (Unarrestability)”. Prof. Niyi Osundare (Christ’s School Distinguished Alumni Lecture, delivered on May 17, 2015 at the Nigerian Institute of International Affairs)
A September to Remember
The drama of September 2015 will linger in the memory of Nigerians for a long while. For a people whom the rhyme of the words impunity, immunity and imuniti (that’s the Yoruba word for unarrestability and often used as the nearest translation to the English word “immunity” in Yoruba) has become norm, September brought with it some new realities.
First on 4th September 2015, it was reported that men of the Department of State Security (DSS) had stormed the Akwa Ibom State Government House in a surprise raid. The officers whom it was reported were searching for a cache of arms had searched the entire complex comprising the residence of the governor which was unoccupied at that time, the guest houses and the presidential lodge.
Though no arms and ammunition were found, it was reported that the officers uncovered a huge stack of foreign currency in the presidential lodge occupied by the ex-governor of the State and current Senate Minority Leader, Godswill Akpabio.
An invasion of the government house for any reason whatsoever was hitherto impossible. Even governors were aided by security agents as they turned their government houses to theaters of criminality and brigandage.
In November 2013, the Nigerian media space was regaled with sensational reports of how Sullivan Chime, the immediate ex-governor of Enugu State had with the collaboration of law enforcement agents acting as his personal security details confined his wife to an illegal and unlawful house arrest for four months.
It took threats from Femi Falana SAN to the Inspector General of Police (IGP) and the Director of the DSS that their men involved in the continued illegal confinement of Mrs. Chime leading to “unwarranted mental torture and psychological trauma” on her person, could be liable for criminal and civil action as the immunity which the governor enjoyed did not cover the civil and criminal infractions of his security details.
The IGP and DG DSS complied and Mrs. Chime regained her freedom after her 4 months ordeal.
When Imo State was in the chains of Ikedi Ohakim draconian administration, an opposition leader in the state Samuelson Iwuoha, was allegedly abducted by armed Police officers on the orders of Ohakim and brought to the government house where Ohakim personally flogged him for daring to write petitions to the Economic and Financial Crimes Commission against his regime.
The allegedly battery was committed in the presence of even the commissioner of police who could not call the governor to order.
The government house was totally inviolable and out of bounds to the law enforcement agents, so we thought! Ayodele Fayose the court jester lording over the Ekiti State the supposed “fountain of knowledge”, fired salvo after salvo to protest the violation of the “sovereignty and inviolability” of the Akwa Ibom State Government House.
“Lawyer” Fayose who is the definition of impunity and brigandage would berate the DSS and accuse Buhari of dictatorship. Who would blame a frightened Fayose? Even the APC Ekiti State Chapter had stated that Fayose’s fright was not a surprise considering the fact that Ekiti State Government House was a safe haven for Fayose’s army of renegades and miscreants who come in handy to brutally silence and muffle any voice of dissent to Fayose’s suzerainty.
Still in September, Governor Tanko Al-Makura was in the news for alleged brutalization of citizens by his security details and their subsequent detention on charges of insulting the governor. Their crime was allegedly refusing to leave the road for the governor’s convoy. It was alleged that Al-Makura had literally called the lady a prostitute but had dared her to do her worst.
She and other Nigerians did their worst and Governor Al-Makura could not withstand the heat. Almighty Tanko Al-Makura after issuing poorly drafted rebuttals dripping with sheer banality came down from his high horse and subjected himself to the National Human Rights Commission (NHRC) inquiry into the matter. Impunity got a blow as immunity was waived, albeit it bowed to public pressure.
On Tuesday 22nd September 2015, Nigerians watched as Bukola Saraki ate the humble pie in what had been a yoyo game between him and the Code of Conduct Tribunal. Saraki had been dragged to the CCT on charges of false declaration of assets when he held the reins of power in Kwara State.
Saraki had snubbed the Court and ran like a headless chicken in the classic Nigerian style, to the Federal High Court to scuttle his trial. The CCT was not swayed by the subterfuge and antics of Saraki and promptly issued a warrant arrest for him. After all tricks employed by Saraki failed and tired of hiding, the “number 3 man” ate the humble pie and entered the dock.
Saraki’s case was a classic example of the imuniti the offspring from the mating of impunity and immunity as propounded by Prof. Osundare. I mean who advises a man whom the constitution has given no immunity from prosecution to thumb his nose at court/tribunal? In civilized climes that is political hara-kiri!
Saraki even believes that by virtue of his office, no Court could arrest him as his media aide had questioned the propriety of issuing a warrant of arrest for Saraki despite “his status as the No. 3 man in the country”. What are our politicians smoking?
Would you blame Saraki, transiting from the era when stealing was not corruption to an era of accountability is still a difficult process for many folks.
A Word on the Immunity Clause
I must state that I do not support the clamour for the removal of the immunity clause from the constitution. The immunity clause is to prevent the relevant office holders from being distracted with frivolous criminal or civil proceedings while in office and not a cloak of protection to engage in criminality or loot the treasury with reckless abandon.
Immunity Clause does not stop or prevent security agencies from investigating alleged criminal infractions though they are precluded from making arrests. They could however in the course of investigation question or interrogate the said office holder. The Supreme Court so decided when Gani Fawehinmi had sought to compel the IGP to investigate Bola Tinubu for alleged certificate forgery while the later was the governor of Lagos State.
Furthermore, immunity could be waived by the said office holder like Al-Makura did albeit under public pressure or public pressure could result in the resignation or impeachment of the said office holder to answer to the charges against him.
Furthermore, office holders clothed with immunity hardly commit legal infractions alone. They are often aided by their appointees or security agents, how come such aides or security agents are never arrested and prosecuted as accomplices to the crime complained of, pending the time the governor would be arrested? In fact such successful prosecution of the governor’s accomplice would make the governors conviction a walk in the park.
We have a situation where security details meant to protect the governor and the law are used as errand boys by the governor. When would a security detail of a governor or any politician for that matter, look such people in the face and refuse to carry out any instructions given to them where they are unlawful?
When we create such a culture, the immunity clause will not be any limitation to enforcing obedience to laws. A question that begs for an answer is: “What would happen in a situation where the security detail of the governor is in the same room with the governor who is set to murder a third party?” Should the security detail allow the commission of such crime because the governor has immunity?
IMUNITI
Our problem is not the abuse of the immunity clause provision but that we have allowed a union of immunity and impunity, the result is imuniti (unarrstability). Prof Osundare was prophetic when he warned on the consequences of such a union in the same Christ’s School Distinguished Alumni Lecture. According to him:
“No empire has ever risen and fallen without the active agency of impunity. No powerful individual has ever fallen without the active agency of impunity”.
Imuniti sunk us to the nadir of human existence as a nation. Even the defence of lives and properties suffered from the brazen pilfering of security funds with consequential severe collateral damages.
Our military that once commanded the lofty heights in Africa would tactically maneuver into Cameroun while fleeing from “better armed” rag-tag insurgents. We didn’t need to ask what went wrong for too long as the revelation of how the military was used by politicians to rig the governorship elections in Ekiti State showed how deep in the woods we had gone with the bastardization of the Nigerian Army.
Defeating the Duo of Impunity and Imuniti
Muhammadu Buhari has started well in the fight against imuniti and one of its parents, impunity. The refusal of the presidency to interfere in the Saraki CCT affair and the Buhari’s strong rhetoric against corruption is a clear sign of the shape of things to come.
“If we don’t destroy corruption, corruption will destroy Nigeria”, so says Buhari and that nearly happened under Goodluck Jonathan. With the defeat of Jonathan, we managed to turn around a fight we had lost and now victory seems very close. We cannot afford to fail.
Speaking about Jonathan, I shall conclude by quoting Prof. Osundare on the destructive interplay of impunity and imuniti which characterized Jonathan’s administration lest we have forgotten, so we can say never again and join hands in their final defeat.
“At the root of these anomies is the monster called impunity. Impunity is the vilest enemy of the Rule of law, since by implication, it is actually tantamount to the rule of lawlessness. It is the blind bluster behind the I-don’t-give-a-damn braggadocio, the tragic demonstration of l’etat ce moir (I am the State), the practical indication of tani yo mu mi (who will dare arrest me?); it is the sinful spouse of immunity. It was an uncontested truth that in Nigeria you could commit any crime and get away with it as long as you were in the President’s party, or so long as you knew someone who knew his wife.”
Maduka Onwukeme is a Lagos based Legal Practitioner. He blogs on www.legalfido.com and can be reached on madukaonwukeme@gmail.com