The immunity clause in the 1999 Constitution insulates the president and governors from distractions while in office. However, it is fast becoming a leeway for impunity and a fortress from the long arm of the law, raising concerns among Nigerians, KEHINDE OLATUNJI reports.

Nigerian presidents, governors and their deputies are protected against police arrest or prosecution in court when they are in office. The essence is to avoid distraction so they can concentrate on governance instead of exposing their actions in office to litigation.

The drafters of the 1999 Constitution believe that chief executive officers of the states deserve protection and peace of mind to be focused on the serious business of delivering dividends of democracy to the people.

Section 308 of the 1999 Constitution subsection (2) states that: “No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office; 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 no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.”

However, many state governors have leveraged this clause and used their immunity to cover up for their allies or former governors, who have lost immunity in a criminal offence.

The melodrama that occurred at the Abuja residence of Yahaya Bello, the immediate past governor of Kogi State, on April 17, 2024, which involved the men of the Economic and Financial Crimes Commission (EFCC) trying to gain entry into his house to effect his arrest, was one ugly incident that has again triggered the debate on whether the executives should continue to enjoy immunity from prosecution and legal action.

The EFCC had arrived at Bello’s house at about 9.00 a.m. to apprehend him but were met with stiff resistance from the policemen and security operatives guarding his house.  But at about 2.30 p.m. of the same day, Kogi State governor, Usman Ododo, arrived at the scene with his retinue of heavily armed security men and aides. He was allowed to go in with his official car, while his entourage waited outside.

About two hours later, Ododo’s car zoomed out of the premises through an unmanned exit, in a manner that suggested he had taken Bello along with him. The EFCC operatives who were stationed at the scene could not stop Ododo from whisking Bello away just because he is one of the thirty-six governors enjoying immunity. Since then, tongues have been wagging and many are asking if a Nigerian governor has the power to interfere with the operations of security agencies.

The EFCC’s actions came as a result of an ongoing legal battle between Bello and the commission, including an amended charge alleging money laundering to the tune of N84 billion.
The EFCC accused Bello of breach of trust, and misappropriation of funds, with Bello currently at large.

Governor Ododo’s action was not the first time a sitting governor would stand in the way of the security agencies to prevent the arrest of their allies.

A similar scenario happened in 2017 in Ekiti State, when former Governor Ayodele Fayose prevented the operatives of the Department of State Services (DSS) from arresting the founder of The Omega Fire Ministries Worldwide, Apostle Johnson Suleiman, in Ado Ekiti.

The Pastor, who was in Ekiti for a two-day crusade, was alleged to have preached against Islamising Nigeria and asked members of his church in Auchi, Edo State to resist killings by suspected Fulani herdsmen.

Fayose, who had participated on the first day of the programme, received a distress call from the pastor after paying a courtesy call to the Government House. The operatives of the DSS had stormed the hotel room of the pastor in the Adebayo area of the state capital and almost forced their way to his room.

They were, however, resisted by security men of the hotel that insisted on knowing their mission. Minutes later, Fayose led a rescue mission to the hotel and prevented the pastor from being arrested by the operatives.

Fayose said: “I attended his crusade and I think it is wrong for a man of God, who is armless, to be invited to be ambushed. If they have any issues against him. Are Christians and Muslims under different dispensations of the rule of law? That’s why I went there to rescue him. Let them kill two of us together. But, when they saw my vehicles and the crowd, they fled.”

Also in 2020, former Governor Nyesom Wike of Rivers State stopped security operatives from arresting a former Acting Managing Director of the Niger Delta Development Commission (NDDC), Joy Nunieh, for failing to appear before a House of Representatives panel probing the alleged fraud at NDDC.

The security operatives had stormed Nunieh’s residence at about 4 a.m. and were said to have attempted to break into her apartment for hours without success. She reached out to the Rivers State governor who swiftly responded to her distress call and came with his aides to stop the arrest.

Nunieh had levelled many allegations against the then Minister of Niger Delta Affairs Godswill Akpabio, who she accused of sexual harassment. Wike succeeded in preventing her arrest and she joined his convoy to the Government House in Port Harcourt.

It would also be recalled that Wike also foiled the attempt to arrest Justice Mohammed Liman, on October 8, 2016, by men of the DSS,

The security operatives had raided the houses of judges across the country while searching for “evidence linking them to corruption.” Some judges were later prosecuted but Wike ensured that Liman was not arrested, accusing the security agencies of not following due process in the discharge of their duties.

He said, “Not under my watch will I allow this kind of impunity to take place. That is why we are here. I don’t know which judge they were detailed to abduct. I didn’t bother myself to know which judge. All I am interested in is that, at this level, it is not allowed. He is not a criminal and he is not an armed robber. If the person has committed an offence, invite him. It is only when he refuses to honour the invitation that you can adopt this commando style.”

Expressing concerns about the spate of impunity by executives while enjoying their immunity, public affairs analyst, Bola Bolawole said: “If we can excuse what Fayose did to rescue Apostle Suleman, can we in like manner justify what the governor of Kogi State did to smuggle his erstwhile boss, Yahaya Bello, from being arrested by EFCC? I do not think that the Kogi governor did the right thing. So, also do I not think Bello himself did the right thing trying to run away from the law? How far can he run? And for how long will he hide? Has he not made his case worse now that he has been declared wanted by the EFCC?”

Bolawole recalled that “in 2018, Fayose was taunted by the EFCC, he went to the EFCC office in Abuja by himself. He was detained and charged to court and was remanded at the Ikoyi prison for a while. The case is still on but Fayose is not in hiding like Yahaya Bello has now done. He did not run from the law.”

He, however, called for the review of the immunity clause in the Constitution saying, “Either we remove it or we strip it of its omnibus status. The spirit and letters of the immunity law aim at allowing those enjoying it the opportunity to focus on the task of governance without distraction but now that it has become an instrument for criminality, something must be done about it.

“We used to give ourselves the consolation that presidents and governors, the clan that enjoys immunity, have an expiry date, after which they can then be called to account, but with the Yahaya Bello’s incidence where spirited efforts are being made to still cover the former governor with the borrowed cloak of immunity belonging to his successor, then, this has become a serious matter that we can no longer gloss over.

“Do not think sitting and former governors are not watching. If Yahaya Bello gets away with this, then, it will very soon become the order of the day all over the country.

Also speaking, Mohammed Ndarani (SAN) called for the removal of the immunity clause for political leaders. He expressed his reservation over the immunity clause provided for governors and deputy governors under Section 308 of the 1999 Constitution.

Ndarani, who declared it as an open invitation to impunity and the expressway to executive criminality added: “It’s an open invitation to wanton violation and trampling under foot of the fundamental human rights of Nigerian citizens and leads to self-aggrandizement and unhealthy self-enrichment drives, which is the bane of our leadership.”

Making reference to EFCC and its investigations of former governors and the amount of assets being recovered across the board, he noted that since the immunity exempts the governors and deputies from criminal and civil liability, it follows that the constitution shields them from the long arms of the law.

“This creates an atmosphere under which they could, and do wreak havoc on the economy, social fabric and political health of the country with wanton indiscretion.”

But Ebun-Olu Adegboruwa (SAN), said that immunity for the president or governors is not forever, stating that “if the immunity of state governors is being abused, whoever is affected, in this case, the EFCC should collate its facts and after the four or eight years of the sitting governor, he/she should be prosecuted.”