By Babatunde Bamigboye
It is simple logic that the Abels of this world must be protected from the Cains. This is that they must be able to worship and offer sacrifices without the fear of murderous envy; they must be able to toil and produce the best from themselves without the fear of malice; they must be able to grow up and marry, and have children, and live to eat the fruit of their labour without the fear of those who have no duty of care towards their brothers. They must be able to do all these without the restraints that destroy rather than reconcile their desires with all that their Creator bestows around them that they might lead happy lives. Abels, thus, need laws which would protect them from whims and caprices of Cains, and they need laws to guide them in their pursuits of happiness.
The law that supremely guarantees the aspiration of the Abels is referred to as the Constitution.
Section 1 of the 1999 Constitution provides:
(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this constitution
(3) If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
In order to alter the provisions of the constitution, excluding section 8 (dealing with state creation and boundaries), section 9 (dealing with alteration procedure) and human right provisions in Chapter 4 of the constitution, the lawmakers need the two-third majority votes of the National Assembly as well resolution of two-third of the 36 states of the Federation.
In order to alter sections 8 & 9 and chapter 4, the law makers must have virtually unanimous votes (four-fifths) of National Assembly members. By virtue of section 48 and 49, every constituency must be represented in this aspect dealing with four-fifths. Vacancy, if any, must be filled.
What the foregoing simply means is that the constitution is rigid and supreme. We should be careful of how we tinker with the constitution. Furthermore, whatever right, duty or privilege granted by the constitution has constitutional immunity. It would appear, however, that the only immunity that public officials covet the most is enshrined in Section 308 of the 1999 Constitution. For ease of reference, Section 308 provides:
1) Notwithstanding anything to the contrary in this constitution, but subject to subsection (2) of this section –
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.
The set of leaders granted immunity by virtue of this provision are: president, the vice president, governors and deputy governors. Why? Very simple: The Functions, Successions and Origins of the offices.
“Since at least the time of Aristotle,” Gordon Wood argues, “theorists had categorized forms of government into three ideal types: monarch, aristocracy and democracy. These types were derived from the number of rulers in each: For monarchy, one person, for aristocracy, a few nobles; for democracy, all the people.
Aristocrats and others believed that each of these rulers when alone entrusted with political power tended to run amok and to become perverted. By itself, monarchy becomes tyranny; aristocracy became oligarchy; and democracy became tyranny. Only by balancing the tendencies of each of them, could order be maintained and the perfections of each type of simple government be achieved.
When we translate the above into a presidential system of government, we see that the President and the governors constitute the elective monarchy and the legislators constitute the aristocracy. The framers of the US Constitution, according to Gordon Wood, were themselves publicly framed as “aristocratic tyrants”, a “dark conclave” of “monarchy men” “bold conspirators who not only sought an elective king and a standing army but also an aristocratical [sic] congress of the well-born.”
However, the framers of presidential constitution provided constitutional term limits as a check. Furthermore the power of legislation and appropriation was transferred to the parliament. The parliament, like the executive, is not without grave risks. If it would have no term limits and it would have the power to legislate and appropriate without criminal and civil liability as often as occasion warrants, then the checks and balances created to address its risks would have been effectively removed.
Clearing the Democratic Illusions
It would be illusory to imagine that the dynamics of our electoral process can give birth to anything that does not ultimately resemble the process. It is either we radically depart from the process in the course of governance or we succumb to it. This view was memorably captured by Chief Obafemi Awolowo in a letter addressing the moral corruption and social illusion of his era.
“ I do fervently and will continue fervently to pray that I may be proved wrong. For something within me tells me, loud and clear, that we have embarked on a fruitless search. At the end of the day, when we imagine that the new order is here, we would be terribly disappointed. In other words, at the threshold of our New Social Order, we would see for ourselves that, as long as Nigerians remain what they are nothing clean, principled, ethical, and idealistic can work with them. And Nigerians will remain what they are, unless the evils which now dominate their hearts, at all levels and in all sectors of our political, business and governmental activities are exorcised.
“ But I venture to assert that they will not be exorcised, and indeed they will be firmly entrenched, unless God Himself imbues a vast majority of us with a revolutionary change of attitude to life and politics or, unless the dialectic processes which have been at work for some 20 years now, perforce, make us perceive the abominable filth that abounds in our society, to the end that an inexorable abhorrence of it will be quickened in our hearts and impel us to make drastic changes for the better. There is, of course, an alternative option open to us. To succumb to permanent social instability and chaos,’’ he said.
The current administration has an open cheque given by Nigerians to draw as it pleases from the account of accountability. Immunity as contemplated by National Assembly stands opposed to this. Legislative leadership will become immune to any act that ultimately erodes the basis of constitutional freedom and because there is no constitutional term limit, they can have immunity for life.
Oh, of course, there will be rotation and zoning. But didn’t we agree that Justice delayed is justice denied?
