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« How Dare you Criticize Nigerian EFCC? | Main | Separation of Religion and Politics »

September 24, 2006

Impeaching Atiku and Obasanjo: The Constitutional Immunity Clauses

by Carlisle U.O. Umunnah (New York, USA) --- In the past recent weeks, the nation-state, Nigeria, has witnessed not surprisingly, reports full of inconsistencies, inaccuracies, illogicalities, and funds moving criminally from one bank to another operated by the duo: Atiku and Obasanjo and their cronies. With EFCC, dwindling each passing day, there is increase in credibility crisis at its peak at the nation’s presidency in Abuja, Aso-Rock.

In my view, this illegitimate fund movement requires an investigation and possibly leads to impeachment. There has been mounting calls for impeachment of these two men: Atiku and Obasanjo, for alleged improprieties this eight year. Nonetheless, I will not bother readers with lists of old accusations and counter accusations. Though, there are staggering misappropriations on both sides. These issues have their constitutional merits. It is therefore the constitutional responsibility of the National Assembly [NA] to set up ad-hoc committees to immediately investigate both the President and his Vice President over billions of dollars misplaced and mismanaged this eight years particularly the PTDF agency.

Constitutional scholars and political analysts have wondered what are the constitutional ramifications or implications at this time with respect to impeachment, as both the president and vice-president have constitutional immunity clauses that somehow shield them from being tried or prosecuted while in office. For these arguments, I have therefore attempted to draw your attention to:

In part, Section # 308 of the constitution to argue these postulations, and, constitutionally perhaps review the logic and illogic behind its merits and demerits.

Section #308:

(1) Notwithstanding anything to the contrary in this Constitution,
but subject to subsection (2) of this section -

(a) no civil or criminal proceedings shall be instituted or
continued against a person to whom this section applies during his
period of office;

(b) 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

(c) no process of any court requiring or compelling the appearance
of a person to whom this section applies, shall be applied for or

Provided that in ascertaining whether any period of limitation has
expired for the purposes of any proceedings against a person to whom
this section applies, no account shall be taken of his period of

(2) The provisions of subsection (1) of this section shall not apply
to civil proceedings against a person to whom this section applies
in his official capacity or to civil or criminal proceedings in
which such a person is only a nominal party.

(3) This section applies to a person holding the office of President
or Vice-President, Governor or Deputy Governor; and the reference in
this section to "period of office" is a reference to the period
during which the person holding such office is required to perform
the functions of the office.

Section #144:

(1) The President or Vice-President shall cease to hold office, if -

(a) by a resolution passed by two-thirds majority of all the members
of the executive council of the Federation it is declared that the
President or Vice-President is incapable of discharging the
functions of his office; and

(b) the declaration is verified, after such medical examination as
may be necessary, by a medical panel established under subsection
(4) of this section in its report to the President of the Senate and
the Speaker of the House of Representatives.

(2) Where the medical panel certifies in the report that in its
opinion the President or Vice-President is suffering from such
infirmity of body or mind as renders him permanently incapable of
discharging the functions of his office, a notice thereof signed by
the President of the Senate and the Speaker of the House of
Representatives shall be published in the Official Gazette of the
Government of the Federation.

(3) The President or Vice-President shall cease to hold office as
from the date of publication of the notice of the medical report
pursuant to subsection (2) of this section.

(4) the medical panel to which this section relates shall be
appointed by the President of the Senate, and shall comprise five
medical practitioners in Nigeria:-

(a) one of whom shall be the personal physician of the holder of the
office concerned; and

(b) four other medical practitioners who have, in the opinion of the
President of the Senate, attained a high degree of eminence in the
field of medicine relative to the nature of the examination to be
conducted in accordance with the foregoing provisions.

(5) In this section, the reference to "executive council of the
Federation" is a reference to the body of Ministers of the
Government of the Federation, howsoever called, established by the
President and charged with such responsibilities for the functions
of government as the President may direct.

Some constitutional observers say NO, the immunity clause does not trump or supersede the impeachment clause. While in consensus, some legal scholars say no!!! The immunity clause does not trump the impeachment clause. Obviously, if an official challenged the constitutionality of impeachment proceedings, and cited the immunity clause, there and then, it falls within the jurisprudence and responsibility of the Supreme Court to determine the outcome or how the two clauses might be reconciled.

In this writer’s view, unwise outcome can cause untold damage to the national coherence as divided this state is. At this time of the nation, it could brew crisis if unwise ruling is handed down on and to the populace, which states that a power expressly granted to the legislature by the Constitution, to rein in officials who are deemed to have abused their offices and their powers as null and void, because it conflicts in some ways with grants of privileges to certain offices. Such a ruling will amount to a finding that some government officials are of course ahead or above the law which, in-so-far, have been displayed at various pedestals of this presidency.

Accordingly to Fubara David-West: “One can only hope that in jurisprudential practice, the immunity clauses will not be interpreted as covering only official conduct, which neither amount to a criminal act, nor is initiated during a period of an illegal political government. Also I do not think that these events will set the nation ablaze. In the end, the fire and its embers will probably burn both camps and their allied classes, while leaving the state's democratizing institutions as virile and progressive as ever.”

Apparently these views and others remain very uncertain as to the direction of impeaching the president and the vice president will land the fragile nation to. Some have delusional views as to what the outcome will be. Others believe that rather than confront our demons today, some wants the evil days postponed. By application it is even more delusional for men in power to think that the state is wrapped up in their individual delusional egos and nothing else matters. Culturally and politically, it is self-evident that cultural and political forces unleashed by the President Obasanjo without looking at his personal record in recent past, have done more damage to his credibility to lead the campaign on corruption. However-so, he might have set the stage to cure many political operatives in Nigeria of their cultural delirium, and lead to a fully “democratized polity”.
But with more exposures from Atiku, Vice President seems to be on the loose, there is no end in sight of exposing the president for all he knows about him for all to see.

Just today according to report from Akin Durodola, Abdul Musediq, Akeem Nafu and Taiwo Adisa, it seems Atiku is on the offensive. According to the reporters, there are more startling revelations which have made it to the airwaves over the controversial Petroleum Technology Development Fund [PTDF] account:

Vice President Atiku Abubakar remarked that out of $700 million realized in 2002/2003, only $145 million was released or reported to PTDF. And this is coming in the heels of reaction from VP, to Olusegun Obasanjo’s camp that there was no approval for the deposit of PTDF funds with the Equatorial Trust Bank [ETB] and the Tran International Bank [TIB]. The foregoing release was by VP’s Media consultant, Mallam Shehu, today, Sunday, September 17, 2006, who alleged that the President Obasanjo abused his office by withholding some facts concerning PTDF account. I guess at this point the pertinent question been asked is: Where is the remaining balance, since $700 million was realized during 2002/2003 bidding rounds but only the sum of $145 million was released to the PTDF?

Who used it and under which law authorized this appropriation sub-head?

Folks as you can see things have fallen apart as they are no-longer at ease. Other observers are calling on the Nigerian Senate and the National Assembly convenes immediately to proceed with impeachment proceedings. Dododawa at remarked: “Nigerian Senate plus the House of Assembly -- should convene immediately and stop this very shameful exchanges going on between OBJ and his VP. It is more like which thief stole more money -- you or me kind of stuff. It is shameful that the so called entire Nigeria actually claimed to have voted for OBJ in 1999 and of course what happened in 2003 if the stuff of history. The two houses should throw both of them out of office and immediately.”
Evidently, from the above commentaries and others it shows how the citizenry feel about the impact of this national and international shame; what it has become for Nigerians who have self-esteem, who live in the homeland and Diaspora.

Another observer added: “To impeach Obasanjo and Atiku now would mean that Nigeria will have to change that constitution first because the two are protected by the "immunity clause." They know about this before becoming reckless with our money. Without the immunity I should have supported their impeachment, and that would mean that Nigerian nascent democracy is strong. We cannot continue to be afraid of the consequences all the time. We have to take chance sometimes without minding the consequence.”

Friends, no nation strives for betterment today without risks, tasks, challenges and constraints unless utopia-nation, otherwise it is something else. This writer is all for immediate convening of the National Assembly [NA] to begin with investigation, and other impeachment protocols in order to dispose-with ones and for all the nemesis: Atiku and Obasanjo, to start with. They are total embracement. They are a national and international shame if they know what shame really is anymore. Impeachment will assist the republic reduce the damages already done to her; but invariably will not address the pandemic itself, the decadence and mother—corruption that have destroyed all known human values, ethics and principles.

Carlisle U. O. Umunnah
Is New York Based Freelance writer

All Copyrights Reserved………….

Posted by Administrator at September 24, 2006 11:02 AM


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