Constitutional Immunity as Sanctification of Moral Turpitude in Governance, By Ogaga Ifowodo
When a president or governor steals from the public, commits murder or acts of moral turpitude, he or she is on a frolic of his or her own and may not enjoy constitutional protection. As the legal maxim says, no one may profit from his or her own wrong. Either a repeal or amendment of the immunity clause or we might as well do without a constitution.
Whatever good intentions the framers had in enshrining a sweeping immunity clause in Section 308 of the constitution, it is now beyond doubt that it constitutes a clear and present danger to the political and moral health of Nigeria. The immunity clause not only sanctifies, ab initio, criminal behaviour by the said public officials but also gives them every incentive to be vile and depraved to their heart’s content—to turn immunity into impunity. A president or a governor could be the very embodiment of moral turpitude and remain in office, the hands of justice nailed to the floor under his desk.
Moral turpitude is defined by the Oxford English dictionary as “Wickedness or depravity of character.” An act of moral turpitude, according to the Merriam-Webster dictionary, is one that “gravely violates the moral sentiment or accepted moral standards of the community,” adding that crimes involving moral turpitude have “an inherent quality of baseness, vileness, or depravity with respect to a person’s duty to another or to society in general.” Such as rape, forgery, robbery, theft and perjury. Normally, a person adjudged to have committed any of these acts would be considered unfit to hold public office. In legal parlance, moral turpitude refers to the element of culpability deemed to be present in an alleged offence such as would distinguish it from another, and informs the severity of the sanction: say denial of a licence or permit as opposed to conviction. It also plays an important role in disciplinary proceedings, as it can lead to the disbarment or de-enrolment of a lawyer, withdrawal of a (doctor’s) practice certificate, or outright dismissal of an employee, etc. Another term for moral turpitude in this instance would be “conduct unbecoming.”
The abject failure of this lofty but misplaced hope has led to the parade of presidents and governors who looted or loot the treasury to the ground, sometimes with the active connivance of legislators ever willing and ready to be bribed or to sacrifice duty and patriotism to narrow party, sometimes ideological, interests.
The same constitution, however, also disqualifies from election as president, governor, senator or representative any person who has been “convicted and sentenced for an offence involving dishonesty” or has been “indicted for embezzlement or fraud.” Why then the seemingly impregnable shield of immunity from prosecution while such a person is in office, at the time it matters most? The untenable answer is that a president or governor ought to be shielded from the distractions of frivolous charges or malicious prosecution, the sort likely to be trumped up by political enemies. But criminal charges are unlikely to be filed against a president or governor without reasonable cause, without prior investigation and the establishment of a prima facie case. And in the converse, that they would almost certainly be dismissed, a governor or president being assured of excellent legal representation. Immunity, it is also said in justification, because the people, through the legislature, would promptly impeach a wicked and depraved president or governor.
The abject failure of this lofty but misplaced hope has led to the parade of presidents and governors who looted or loot the treasury to the ground, sometimes with the active connivance of legislators ever willing and ready to be bribed or to sacrifice duty and patriotism to narrow party, sometimes ideological, interests. It has also led to the feeble efforts of the courts to prevent the catastrophic effects of a purblind interpretation of the clause. Giving his rationale for the claw-back decision that Section 308 does not confer immunity from investigation in Fawehinmi v Inspector-General of Police, Supreme Court Justice Samson Uwaifo said, fourteen years ago, that to “hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated. Suppose,” he said, “it is alleged that a Governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept it in a particular bank or used it to acquire property. Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be precluded in [sic] section 308 from investigating to know the identity of the man killed, the cause of death from autopsy report, the owner of the car taken to the workshop and if there is any evidence from the inspection of the car that it hit an object recently, more particularly a human being; or to take steps to recover the gun and test for ballistic evidence; and generally to take statements from eye-witnesses of either incident or killing [?]. Or to find out (if possible) about the money lodged in the bank or for acquiring property, and to get particulars of the account and the source of the money; or the property acquired?”
If the clause cannot be repealed, it must at the very least be amended with the introduction of the qualifying phrase, “In the performance of the duties of his or her office, the president, governor…” The intention, we can all agree, was not to shield a president or governor clearly abusing his or her powers through criminal or morally repugnant behaviour.
Let me add one more scenario. Suppose a governor has been carrying out an adulterous relationship for two years with the wife of his personal driver. And for fear of losing his job, the driver, who is aware of the affair, unknown to the governor, suffers in silence. Until one day, enraged (his excellency is famous for his ungovernable fits of temper) by yet another trifling lapse in concentration, the governor endlessly berated then threatened to sack him. And in the evening, back in the state house, the governor does actually sack the driver amidst another round of merciless scolding. At which point the driver snaps and seeking to salvage his dignity threatens to expose the governor. And the governor, enraged and panicky all at once, shoots the driver dead as he turns to leave. We may agree now that the police can investigate the crime but what sense does it make to shield the governor from criminal proceedings? Why should justice be delayed (and denied) while the murderous governor enjoys the honour and perquisites of a high office that he is unfit to occupy?
The case of one Peter Ayodele Fayose, impeached former governor of Ekiti State, blatantly rigged into office through a military operation the second time, benefactor to the tune of N1.2 billion out of a total electoral fraud fund of N4.7 billion stolen from the public, who led a mob to ransack a court and manhandle the judge hearing a case against him, but who remains in office because of the licence for impunity given him by the accursed immunity clause in our (unhallowed) constitution speaks of the worst possible form of moral turpitude. If the clause cannot be repealed, it must at the very least be amended with the introduction of the qualifying phrase, “In the performance of the duties of his or her office, the president, governor…” The intention, we can all agree, was not to shield a president or governor clearly abusing his or her powers through criminal or morally repugnant behaviour. When a president or governor steals from the public, commits murder or acts of moral turpitude, he or she is on a frolic of his or her own and may not enjoy constitutional protection. As the legal maxim says, no one may profit from his or her own wrong. Either a repeal or amendment of the immunity clause or we might as well do without a constitution.