February 2, 2009
The great American journalist and essayist, Thomas Paine, wrote, “….in America the law is king. For as in absolute governments, the king is law, so in free countries the law ought to be king; and there ought to be no other.”
In many cases, the U.S. Supreme Court has reaffirmed the principle that no person, not even the president is above the law. That all government officials, from the highest to the lowest, are creatures of the law, and are bound to obey it.
Similar to the United States, the Nigerian Constitution and laws should be above all. It is time for all Nigerians to uphold and defend this fundamental principle of equal justice for all, which is one of the most important principles in a democracy.
Corruption and abuse of power by past and present members of the executive and other arms of government has prevented development and progress in our country. The immunity clause in our Constitution is and has been an albatross in the war against corruption. The call for its removal hinges on the assertion that for Nigeria to move forward in her fight against corruption, the immunity clause needs to be amended.
Nigerians at home and abroad should applaud President Yar’Adua’s push to deny executives immunity against criminal prosecution.
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.
The earliest concept of sovereign immunity 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 official from frivolous civil lawsuits arising from the discharge of their public duties.
The US Constitution contains only one expressed immunity clause in Article 1 Section 6. It provides that, “The senator and representatives…shall in all cases, except treason, felony and the breach of the peace, be privilege from arrest during their attendance at the session or their respective houses, and the in going to or returning from the same, and for any speech or debate in either house, they shall not be questioned in any other place.”
Although the US Constitution goes no further in enumerating any additional immunity for the executive branch (in article II), the US Supreme Court, in Jones v. Clinton, ruled that the executive branch has qualified executive immunity to enable it discharge its duties without concern that a particular action may result in civil liabilities from its actions. The court also held that the president does not have absolute immunity on unofficial acts.
While there are different legal opinions about the President, there is consensus that the Vice President and other high public officers, including state governors can be indicted and prosecuted while in office, before any impeachment proceedings. Many legal cases have firmly established this rule. For example, in 1804, Aaron Burr, while Vice President, was indicted for the killing Alexander Hamilton both in the states of New York and New Jersey.
Burr never claimed immunity from prosecution, and he served out his term with the stigma of indictment. President Richard Nixon’s vice president, Spiro Agnew, was indicted on tax evasion, money laundering, and bribery. The crimes allegedly took place while he was governor of Maryland. In the Agnew case, the US Solicitor, General Robert Bork, argued that the Vice President, consistent with the Constitution, could be subject to indictment and criminal prosecution.
Some commentators say the removal of the criminal immunity clause from the Nigerian constitution is callous and erroneous. 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.
Criminal conduct is not part of the necessary functions of public officials. Punishment for such conduct will not interfere with the legitimate operations of a branch of government. Historically, the impeachment process has been cumbersome and fraught with political overtones. A true democracy is better served when criminal charges against the executive are tried in a court rather than in the legislature. With a court trial, a judge is assured of the protections given to all those charged with criminal conduct. The issues are heard in a calm and reasoned manner, subject to the rules of evidence, the presumption of innocence, and other safeguards.
In impeachment cases, punishment does not go beyond removal from office or disqualification to hold any public office in the future. With court trial, a corrupt public official is duly tried, and punished for crimes committed. It serves the twin values of justice and deterrence.
We cannot build and an enduring civilization when our basic law supports criminality in high public offices and encourages a culture of impunity. Absolute immunity for the executive is bad for Nigeria. It must be removed from our Constitution.
Felix Ayanruoh, Esq (LLM USA) is an Attorney in New York City ([email protected])
In many cases, the U.S. Supreme Court has reaffirmed the principle that no person, not even the president is above the law. That all government officials, from the highest to the lowest, are creatures of the law, and are bound to obey it.
Similar to the United States, the Nigerian Constitution and laws should be above all. It is time for all Nigerians to uphold and defend this fundamental principle of equal justice for all, which is one of the most important principles in a democracy.
Corruption and abuse of power by past and present members of the executive and other arms of government has prevented development and progress in our country. The immunity clause in our Constitution is and has been an albatross in the war against corruption. The call for its removal hinges on the assertion that for Nigeria to move forward in her fight against corruption, the immunity clause needs to be amended.
Nigerians at home and abroad should applaud President Yar’Adua’s push to deny executives immunity against criminal prosecution.
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.
The earliest concept of sovereign immunity 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 official from frivolous civil lawsuits arising from the discharge of their public duties.
The US Constitution contains only one expressed immunity clause in Article 1 Section 6. It provides that, “The senator and representatives…shall in all cases, except treason, felony and the breach of the peace, be privilege from arrest during their attendance at the session or their respective houses, and the in going to or returning from the same, and for any speech or debate in either house, they shall not be questioned in any other place.”
Although the US Constitution goes no further in enumerating any additional immunity for the executive branch (in article II), the US Supreme Court, in Jones v. Clinton, ruled that the executive branch has qualified executive immunity to enable it discharge its duties without concern that a particular action may result in civil liabilities from its actions. The court also held that the president does not have absolute immunity on unofficial acts.
While there are different legal opinions about the President, there is consensus that the Vice President and other high public officers, including state governors can be indicted and prosecuted while in office, before any impeachment proceedings. Many legal cases have firmly established this rule. For example, in 1804, Aaron Burr, while Vice President, was indicted for the killing Alexander Hamilton both in the states of New York and New Jersey.
Burr never claimed immunity from prosecution, and he served out his term with the stigma of indictment. President Richard Nixon’s vice president, Spiro Agnew, was indicted on tax evasion, money laundering, and bribery. The crimes allegedly took place while he was governor of Maryland. In the Agnew case, the US Solicitor, General Robert Bork, argued that the Vice President, consistent with the Constitution, could be subject to indictment and criminal prosecution.
Some commentators say the removal of the criminal immunity clause from the Nigerian constitution is callous and erroneous. 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.
Criminal conduct is not part of the necessary functions of public officials. Punishment for such conduct will not interfere with the legitimate operations of a branch of government. Historically, the impeachment process has been cumbersome and fraught with political overtones. A true democracy is better served when criminal charges against the executive are tried in a court rather than in the legislature. With a court trial, a judge is assured of the protections given to all those charged with criminal conduct. The issues are heard in a calm and reasoned manner, subject to the rules of evidence, the presumption of innocence, and other safeguards.
In impeachment cases, punishment does not go beyond removal from office or disqualification to hold any public office in the future. With court trial, a corrupt public official is duly tried, and punished for crimes committed. It serves the twin values of justice and deterrence.
We cannot build and an enduring civilization when our basic law supports criminality in high public offices and encourages a culture of impunity. Absolute immunity for the executive is bad for Nigeria. It must be removed from our Constitution.
Felix Ayanruoh, Esq (LLM USA) is an Attorney in New York City ([email protected])
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