Lagos — The immunity clause has remained a burning issue from inception. So far, we have had a padded discussion on the immunity clause. In this revisionist critique, we shall attempt to fry the fat out of the discourse.

When I read Chief Onabule's powerful rendering on this vexed issue of "immunity clause", I was disturbed, but when I read the comments of Chief Richard Akinjide, I was embarrassed (see Guardian 16/02/08). Both traditional chiefs want us to relive obsolete mistakes, injuries and injustices; every deprivation and evil ordeals the developed countries have passed through before we do something drastic to avoid them.

Chief Akinjide ( a former Minister of Justice and Attorney General) wants us to relive the American "Gilded Age" (Age of Corruption) and "the Tweed Ring". Like the Wadata Plaza housing PDP Headquarters, the Tweed Ring was a notorious plaza headed by William M. Tweed (1868) where plans for stealing and looting public funds were hatched and implemented. The Tweed Ring was the brain behind padded bills and invoices, giving and receiving kick-backs in the United States. Chief Akinjide had to remind us that Nigeria is not the only corrupt nation in the world!! What a reminder!!! The phenomenon of corruption, in his view, becomes a piagetian phase of political development of sorts through which Nigeria must inevitably pass!! His insipid casuistry must be based on the erroneous assumption that Nigeria cannot adopt either leapfrog strategy or proactive methods to by-pass needless orgies of corruption and indiscipline.

It is heart-warming however that neither Duro Onabule nor Richard Akinjide faulted Dapo Fafowora's and Fred Agbaje's moral claims that "when you place some citizens either above all other mortals or above the laws of the land and the constitution you can expect a company of evils to follow". The nation has witnessed from Obasanjo's dispensation (1999-2007) that the immunity clause gives unconditional mandate to steal, to kill and to destroy". Neither Onabule nor Akinjide refuted his claim. Chief Akinjide argued that every other constitution has immunity clause imbedded in it, so Nigeria will not be an exception?!! According to the former Minister of Justice, the American and British constitutions have it, why should we be different, he asked? This bland and specious argument cannot be sustained on two grounds.

Both Chief Onabule and Akinjide seem to have forgotten the contemporary political history of Britain and United States from where they drew their unedifying inspiration. Again, Chief Akinjide appears to have failed to see that there is a difference between instances and circumstances. Granted that problems may look alike, we are exactly at the same stage of development as Britain was at the time of Justice Coke (1552-1634) where the United States was in 1868. Yet our circumstances are different. Both Britain and the USA have had judges who could courageously acquit their enemies and convict their friends, judges who can speak truth to power. This is why this writer begs to differ from Chief Akinjide when he said public interest demands that this "immunity clause" stays. Can the former justice minister finger which "public" he is alluding to because there many publics!! The "word-group", "public interest" is a nebulous term.

The British political historian, Thomas Hobbes, in his social contract theory, once said, "What man likes he calls good, what he hates, he calls evil" . Chief Akinjide's "public" must comprise those who love the pervading climate of "Chop-I-Chop" and impunity. It is curious that Chief Akinjide is not worried about the leakages in the National Income, the impounding of budgets or non-implementation of projects for which public funds have been appropriated at all levels of government - federal, states and local governments. Chief Akinjide does not seem to be worried about oil spillages caused by poor villagers who seek, in vain, their share of the national cake that their representatives and governors refused to bring home. "If the naira cannot spill on us, they erroneously reasoned, let oil spill on us!!" What about the Odi massacre and the pervading climate of electoral malpractices, arson, cold murder, armed-gangsterism, kidnapping, general insecurity and threat to life and property caused by the excesses, non-feasance and malfeasance of "people who are above-the-law"

Sometimes, when a dead body is being accosted by the bereaved and sympathizers to the cemetery, the unconcerned think it is a log of wood because they are not the ones involved!! Why did the former justice minister fail to tell Nigerians that the whole brouhaha on the "immunity clause" came to a conclusive end in Britain under the Crown Proceedings Act of 1947? On that date, the immunity clause became a dead law and inapplicable thereafter.

It is instructive to note before further comments on immunity clause that aside from the differential circumstances in political climate, the stage of maturity of political institutions in Nigeria and the United States render them incomparable.

The United States of America can afford to retain such obnoxious and unedifying clause as the "immunity clause" in its constitution because in place of venal judges such as those we have on our shores, it has recruited courageous and upright judges in its judiciary who are resolved to make their nation work. The USA has proactive political institutions that understand the concept of a mixed government. For instance, American congressional committees exude not only honour and integrity but also eager industry. The Nigerian political system on the contrary has not evolved proactive systems and procedures. It has not recruited experienced, skilled, God-fearing and patriotic people into the institutions of government. The senate and the House of Representative are filled with many unelected upstarts and the nouveau riche that are still on the lowest point on the learning and experience curve. Under this state of affairs, there is need for proactive exposure management. The nation can ill-afford uninsurable risks like the immunity clause.

Preventive legislation is so far to be preferred to reactive legislation. The legislature is yet to endow itself with appropriate oversight infrastructure and has not yet acquired effective or proactive audit sinews required to police a delinquent and unproductive political economy like Nigeria's. In a nation with a prebendal culture and rent-seeking professional, political and economic elite in charge of the bureaucracy, it is far better to plug the leakages in the national income circuit than to adopt Chief Richard Akinjide's reactive approach. It amounts to self deceit to think, for now, that we have a perfect sovereign (even under Yar'adua the judiciary was compromised) and skilled personnel in the public accounts committees of the bicameral legislature who will refrain from theft of public funds and unearth frauds and irregularities when they occur. The Committee on Budget and Appropriations does not have appropriate level of expertise and skill for budget tracking, interrogation of the system, the zeal and expertise to evaluate bureaucratic performance, on both regular and irregular basis. The legislature lacks in-house team of forensic experts, graphologists and a panoply of skilled professional auditors, systems accountants and finance/investment experts versed in discriminant analysis to prune down the checklist of delinquent public funds.

To the USA, the UK or other advanced democracies, it makes little or no difference whether the immunity clause is there or not because the clause is obsolete in their statute books! In advanced industrial democracies, the judiciary has unfettered discretion because it is also sovereign in its jurisdictional area (legal matters) in a mixed government. It could gloss over a civil offence involving a governor, or a president but rarely would it turn a blind eye to a crime because the president, the vice president, a governor, a deputy governor or local government chairman is involved!! The essence and beauty of a mixed constitution such as our own is that the judiciary can act either independently to bring the errant president, vice president, governor, deputy governor, local government chairman to book or act in concert with other institutions of government - the legislature, the EFCC, ICPC, the police, code of Conduct Bureau and Code of Conduct Tribunal- to sanction and discipline errant chief executive of federal, state and local government. Why should we continue to assume that a sovereign is perfect in the face of overt and covert imperfections and breaches of the law and the constitution? Even then, the assumption that a sovereign is perfect is not synonymous with the dictum that it is above the law. This was the jurisprudential legacy Henry Bracton (1200-1268) handed down to posterity of British judges (Blackstone, Mansfield and the late Denning).

To conclude, I recommend that the 1999 constitution be debugged of this "jigger-in-the-toe" called "Immunity Clause". We have before now urged the legislature to strengthen its oversight infrastructure and to develop and maintain robust audit sinews, if it is to undertake proactive and effective oversight function. It was because no one in the Public Accounts Committee was monitoring the movement of the balances in the various Public funds (e.g PTDF) that some "big rats" , squatting in Aso-Rock, plundered the funds before taking their exit. Hopefully, we have not left our valuable assets under the custody of a blind bureaucratic institution. Most of the oversight committees are manned by those we may liken to "blind-eye witnesses". A blind eye-witness will be there while things go wrong because he has eyes but cannot see on account of ignorance. The legislature should not be busy doing nothing. It should school, train or re-train itself, acquire the necessary institutional infrastructure to discharge its constitutional duties and responsibilities creditably well.

The legislature should note that retaining the immunity clause would mean that the executive is supreme and can thus subordinate the judiciary and the legislature to its whims and caprices. The legislature must be prepared to liaise and interact with other interdependent but separate institutions of government both proactively and reactively. Separation of powers is not an alibi; it is a reality. Yet because of separation of powers the need for interaction and interdependence arises. The legislature must use this opportunity of the constitution review to expunge from our constitution dangerous and burden-some clauses inherited from the colonial master (damnosa hereditas) since they conflict with contemporary political realities. Immunity Clause is repugnant to the fundamental objectives of a mixed government, where the three levels of governments are each sovereign in their respective spheres of influence and wield coordinate powers. The executive is not accountable to the judiciary and the legislature. The legislature is not accountable to the judiciary and the executive. The judiciary is not accountable to the legislature and the executive. The immunity clause is thus a clever and subtle attempt to compromise other sovereigns in the mixed government.

Eugene Uwalaka, author of Ethics of Political Leadership, lives in Lagos.