It is understandable if chairman of Economic and Financial Crimes Commission, (EFCC), Farida is angry and wants the immunity clause removed from Nigerian constitution. The clause, which to all intents and purposes, was originally meant for public good (specifically, stability in governance) has now become not only contentious but more notorious.

Largely owing to the immunity clause, even respectable Nigerians have been given the impression by the last set of exited public office holders that it (the immunity clause) is a safe cover to blatantly rob the public treasury. And to rob salt in the robbery of public treasury, continue to fly higher either in being elected to the upper chamber of the National Assembly or elevated with ministerial appointments.
Such counterirritant can turn out at a critical stage to be flaunted as an official testimonial to save the suspects from the deserved punishment. That is where law enforcement agencies like the EFCC and Independent Corrupt Practices Commission (ICPC succeeded at all in scaling over the iron security of immunity to even interrogate the suspects.

Yet, the demand for the removal of the immunity clause can only be understandable but not tenable. In considering the future prospects of the immunity clause in the constitution, we must move beyond Olusegun Obasanjo and his accomplice state governors.
Why do we need to see beyond Obasanjo? The latest clamour by probably majority of Nigerians for the removal of the immunity clause is more of a determination to have a pound of flesh from a man suspected of serious financial crimes throughout his eight-year tenure he spent to discredit any suspected rival or anybody who did not support his (Obasanjo’s) attempted life-presidency.

To worsen matters, Umar Yar’Adua’s rule of law policy strictly adhered to by his lieutenants (like those in EFCC and ICPC) has unfortunately been misconstrued by the public either as ineffectiveness of such law agencies or their deliberate cover up of Obasanjo and the ex-state governors.
Law enforcement agents like EFCC’s Farida Waziri will have to put up with such misplaced and obviously mischievous if not unintelligent criticisms. She did not write the Nigerian constitution containing the immunity clause which now inhibits prosecution of even bare-faced criminal theft of public funds. Such technicalities in law are not peculiar to Nigeria. In fact, it is a universal phenomenon. Otherwise, murderers would not be escaping execution where such sentence still operates around the world.

Thanks to the expertise of defense counsel who capitalise on the narrowest loophole.
On this controversy over the immunity clause, it should be our sacrifice that constitutions are not tampered with for the sake of one man either for good or for bad. Obasanjo himself tried it for selfish reasons in his third term misadventure but despite his use of power, sometimes violence and of course money, we stopped him. What is more, even if the immunity clause is removed today, the new constitution cannot be backdated to get at Obasanjo and the state ex-governors.

If therefore Obasanjo (strictly as ex-president) and ex-state governors cannot in any way be liable for any prosecution, must we, consciously or unconsciously, throw spanner in the works for stable governance by future presidents who can be dragged to law courts on any minor issue to obtain injunction restraining the president from performing his constitutional duties “…. Pending the determination of the substantive suit…”?
It is easy to dismiss such future possibilities. In which case, we should be deluding ourselves that there are no anarchists in Nigeria even on the bench. We have a stupid judiciary which, in moments of crisis, is notorious for delivering zonal rulings. What is more, in the matter of granting injunctions, the discretion is entirely that of the law court(s) concerned.

Specifically, we must recall the June 12, 1993 election crisis during which a judge stopped the election at 9p.m. (less than 12 hours to the commencement of the election). And when results of the elections were being released, different courts (depending on which of the six zones the judge was sitting) granted injunctions stopping further release of results while others ordered continuation of the results of the election.
If for example, the immunity clause is removed from the constitution and a national crisis ensues (there will always be crisis in any country) a law court grants an injunction against an incumbent presidents continued stay in office “pending the determination of the substantive suit, to where will the country be heading? And where a court suspends a president, such a ruling may automatically disqualify the president.

The Senate President then steps in acting capacity. Another court in another part of the country gives another ruling removing the acting president. These prospects appear impossible. Such reasoning can only be from a non-Nigerian. Do we used to gamble on such an issue?
We will be taking a risk to underestimate or disregard the anarchists in our midst – civilians, lawyers and judges. They pounce on any given opportunity for cheap publicity. We must not give in to frustration on immunity for the president and state governors.

For more centuries to come, our laws and constitution will continue to develop and evolve. Despite its almost 300 years of existence, American constitution regularly throws up problems which the law courts are allowed to interpret very often to the distaste and anger of the majority. But America marches on.
On the vexed issue of immunity, Nigerian constitution (from 1979) is less than 30 years old. We had an elected president (Shehu Shagari) and vice president (Alex Ekwueme) in the past and nobody ever faulted them for abusing the immunity clause. Even almost all the elected state governors were similarly never faulted for exploiting the immunity clause. Tried by military tribunals from which chances of innocence are slim, the two or three governors convicted were only for charges of enriching their political parties.

By the way, critical Nigerians don’t seem to note that immunity for president under Nigerian constitution is not in any way stronger than the immunity for state governors. Is it not therefore absurd and questionable why state governors are not granted the same privilege and many of them are being tried in courts?
That is up to the various defence counsel. The Supreme Court ruling on the immunity issue should affect every public office holder granted that protection under Nigerian constitution which does not specifically make state governors liable for prosecution after leaving office.
This, however, is not to say that the immunity clause should be retained in its totality. Neither does it mean that (especially) Olusegun Obasanjo cannot be prosecuted even in the present circumstances. Such prosecution will be for offences committed as a federal minister (Obasanjo) or commissioners (state governors).

First, there is the need to amend (rather than throw out) the immunity clause to stop a seeming blank cheque for looting public treasury without, thereby, making either the states or Nigeria ungovernable by anarchists.
While the immunity clause should be retained, the wordings should be clearly clarified to make the president and state governors liable for prosecution for any financial/economic crimes they might have committed while in office. That would make it impossible for public office holders to rob state treasury while at the same time anarchist would not disturb stability in governance. Law enforcement agencies like EFCC and ICPC would also be in position to function with good results.
Even despite seeming current escape, Olusegun Obasanjo is still liable to be prosecuted for any financial/economic crime if detected against him. Under Nigerian constitution, there is no immunity for Federal ministers.

Olusegun Obasanjo himself asserted this fact by arranging at least two federal ministers during his tenure for alleged corruption.
Indeed, one of the ministers, late Sunday Afolabi died while the trial was on. The man and other co-accused were later, (he, posthumously) discharged and acquitted for want of evidence. Professor Osuji, education minister and Adolphus Wabara, Senate President, were accused of corruption.
The issue is not whether any case was proved against them but as ministers, (and Senate President) they did not enjoy constitutional immunity. The same can apply to Obasanjo, not as ex-head of state.

Nigerian Constitution empowers a president to appoint federal ministers to assist him in administering the country. For emphasis, such ministers do not enjoy any immunity. What is more, such ministers must be screened and cleared by the Senate.
On assuming office as elected president, Obasanjo appointed himself Federal minister of Petroleum, a portfolio he held for eight years, the longest in Nigeria’s history. Any allegation of financial misconduct as Federal minister (of Petroleum) can land him in court without any immunity.
No section of the Constitution impliedly or clearly empowers the president to appoint himself a federal minister and where he did, such federal minister, (not a head of state) bears responsibility for any fallout.

There is need for this further clarification. Under the military regime, the ruler is the commander-in-chief with unlimited powers. Never mind, the Supreme Military Council, the Armed forces Ruling Council or the Provisional Ruling Council.
After the abortive 1976 military uprising in which Murtala Mohammed was assassinated, another disturbing aspect was that the then Defence Minister, Major-General Ilya Bissala, was allegedly implicated. In that situation, quite rightly or at least, understandably, General Obasanjo, as commander-in-chief also appointed himself Defence minister and retained the portfolio for three and half years.

In a military regime, most essential portions of the Constitution are suspended. In fact, soldiers rule by decree, which ousts jurisdiction of law courts.
It is a different case entirely in an elected civilian regime. Every minister is answerable for his actions.
However, prosecutors will have to be careful in wording(s) of any possible charge against Obasanjo as ex-Federal minister of Petroleum. If such charge sheet reads in part that “You, ex-president Olusegun Obasanjo, in charge of Ministry of Petroleum between 1999 and 2003 at Abuja did…” his constitutional immunity as ex-president will effortlessly get him off the hook.

Instead, the charge sheet should cite Olusegun Obasanjo, Federal minister of Petroleum etc. Should any court at that state set him free or even dismiss or strike out the charge(s), then all Federal ministers contrail currently or in the future would have earned unsolicited immunity.
Only findings at the Petroleum Ministry can make Obasanjo liable. But who wants the man humiliated? To be fair, the same Obasanjo intervened in the matter of abuse of office leveled by late Zambian President Menawasa against his predecessor, Frederick Chiluba, who was accused of looting the treasury to the tune of millions of dollars.

Whatever was running in Obasanjo’s mind at that time, he told the world media that late President Menawasa should avoid prosecuting his predecessor, Fred Chiluba. Instead, Obasanjo publicly advised Menawasa to recover some of the loot (he suggested twenty-five per cent) and leave Fred Chuiluba in the court of public opinion.
If any investigation of Obasanjo as an ex-Petroleum minister reveals any questionable deals, such should be recovered.
While in office, he, Obasanjo, gloated al over the place about recovering money from Abacha family or oil blocs form General Theo Danjuma. Any such oil blocks should similarly be recovered from him or proxy companies like TRANSCORP.