The Significance of The Immunity Clause for Democratic Consolidation in Nigeria
Ebenezer Olugbenga Olaoye · African journal of criminology and justice studies · 2012
AbstractThis paper interrogates the relevance of the constitutional provisions on immunity for certain categories of elected political-office holders to the quest for democratic consolidation in Nigeria. It traces the history of immunity for political office-holders to the 1963 Republican Constitution and examines the rationale or justification for its inclusion in Nigerian constitutions. On the strength of evidences from case studies from Nigeria's Second (1979 to 1983) and Fourth Republic (1999 till present), the paper notes that, while the original intention for its inclusion in the Nigerian constitution was good, politicians have used the clause to the detriment of democracy. For this reason, the constitutional provisions on immunity have become a threat to the consolidation of Nigeria's nascent democracy. Rather than throw away the baby with the birth-water, the paper recommends a review of the provisions to take cognizance of the need for transparency, accountability and good governance while ensuring that political chief executives are not unduly constrained in the performance of their constitutional duties. In this way, the paper concludes, the excesses of elected political chief executives can be curbed while Nigerians can reasonably expect to reap more dividends of democracy now and in the future.Introduction: The Concept of ImmunityThe concept of 'immunity' originated from a Latin word 'immunitas' which the ancient Romans used in describing the exemption of an individual from service or duty to the State (Silverstein, 1999:19). Before then, however, in some of the earliest recorded histories of human society, such as Babylon from about 2,000 B.C., the ancient Egyptian dynasties, the Athenians around 430 B.C., and even among other primitive peoples of the world, diseases were thought to be punishments from the spirits and demons for some infraction of tribal taboos and sins against the gods. Such beliefs provided rationalizations for the epic of Gilgamesh and the Plague of Athens. Even in the Biblical Old Testament, there are accounts of God continuously smiting those who trespassed against him with pestilence (Exodus 9:9; 1 Samuel. 5:6 and Isaiah. 37:36, among others).While atonement was the remedy for pestilence in the Old Testament, keen observers and historians in ancient Babylon, Greece and Athens such as Thucydides and Procopius observed that once diseases like the bubonic plague, measles and smallpox afflict an individual; such a person was often spared in the event of a re-occurrence of the pestilence. In time, this occurrence came to be known as acquired immunity, which was supposed to be the result of an individual turning a new leaf to living a new pious, 'sinless' life that deserved no further punishment before the gods. If an individual was spared the first time a plague struck, it was reckoned as natural immunity. The Islamic physician Rhazes later propounded the first explicit theory of acquired immunity, stating clearly that recovery from small-pox infection provides lasting immunity (Silverstein, 1999).Immunity in the Modern AgeThe modern idea of immunity is related to, and derives largely from the foregoing analyses of the origin of the concept. Nevertheless, its widest application is in the area of international law where immunity can be conveniently subsumed under three headings: sovereign immunity, diplomatic and consular immunity as well as immunity of other categories of persons such as international organizations and special missions.Sovereign ImmunitySovereignty is the attribute of every state by reason of which it earns the freedom to conduct its affairs free of control by any other state in the international system, without its consent. Because independent states are sovereign, they are equal such that no state may exercise jurisdiction in matters concerning another state without its consent. As Okeke (1986) argues, dominance, if it exists, is de facto, not de jure. …