- Faults NASS on immunity clause
From Godwin Tsa, Abuja
A Senior Advocate of Nigeria (SAN), Mohammed Ndarani Mohammed, has advocated for a brand new constitution that would address the realities of today’s Nigeria, rather than the continuous review of the 1999 constitution.
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Mohammed noted that Nigeria needs a constitution that is fundamentally solid and accommodate the special characteristics of the entity for which the document is being drafted.
He said the process for the new constitution, must be drawn from the peculiarities of Nigeria, the demographics, the ethnicity, the economic structure as well as the many other variables that make up this huge complex social called Nigeria.
Ndarani Mohammed, who spoke in Abuja during an interactive session with the media, specifically condemned the continued retention of Section 308 of the 1999 constitution as it contradicts some fundamental provisions of the constitution.
“The 1999 Nigerian constitution, which is basically what is in operation, has gone through five amendments and yet, it is generally believed that it could be better, much better.
Let us not forget in a hurry that this constitution was put together under a military dispensation. Since then, it has gone through these many efforts to knock it into shape, but with very little success.
Now we have embarked on another journey of review of, and amendment to, that same vexatious issue of the 1999 constitution, and here we should pause and ask ourselves; what is wrong in initiating a move to draft a brand new constitution that would properly address the realities of today’s Nigeria?
A Committee is reviewing 87 priority bills that cut across critical national concerns -local government autonomy, state policing, judicial and electoral reform, fiscal federalism, gender inclusion, and procedural governance.
The question is, given how fundamental and far-reaching these issues are, shouldn’t we simply opt for a new, well-thought out document?
He however noted that if we must continue to tinker with the 1999 constitution, then, “There is therefore a great need for the National Assembly to make provision for a proper referendum prior to amendments to those critical areas of the constitution.
This is what will give the said constitution or act the touch of the people, imbue it with much-needed legitimacy and bring the laws closer to the people and vice versa.
Considering that the Zonal public hearings are already underway, with plenary billed for October, 2025, the voice of the people should be heard to ensure a greater relevance and acceptability of the outcome.
The world over, constitutions are amended to respond to socio-economic, cultural and political changes, so the amendment process must entail the mass participation of the people. It must be transparent, credible and rigorous enough to ensure that it is done in the interest of the people and not to protect the personal interests of some individuals.
In many instances amendments are seen as a means of protecting vested interests. Power blocs see the process as a political poker game, rather than a democratic rearrangement to benefit all.
The drafters should listen more to the people and ensure that it is a national dialogue indeed, and a participatory constitutional reform process that reflects the aspirations of all Nigerians.
The review should result in a responsive and efficient constitution that will address structural, fundamental and emerging issues within the Nigerian Federation.
These issues must include what kind of federation Nigeria should have, and how to address insecurity and unrest. It should also consider whether to revert to the parliamentary system of government and whether regionalism would be more practical.
It should equally provide for how to collect and distribute tax, how to ensure judicial autonomy and reform, reform of the police, the roles of traditional institutions and rulers, the compulsory national youth service programme, and gender sensitive issues.
With the right constitution to guide the Nigerian nation, this country has the wherewithal to be one of the leading nations on earth!
Meanwhile, the senior lawyer has aligned himself with the indigeneship bill tabled by the Deputy Speaker of the House of Representatives, Hon. Benjamin Kalu, who proposed a bill to grant indigene status to individuals who have resided in a state for 10 years or married a native, which has ignited deep controversy across Nigeria.
“I see it as a progressive move for national unity. Nigerian citizenship is primarily defined in Chapter 3 of the 1999 Constitution (as amended). It outlines three ways to acquire citizenship as long as you meet certain requirement by law. Citizenship by birth: A person born in Nigeria is a citizen by birth if either of their parents or any of their grandparents is a citizen of Nigeria.”
Ndarani who faulted the National Assembly on the issue of immunity clause questioned the reasons for refusing to strike out the section from our constitution.
“I also ask, why did the National Assembly remove the submissions calling for a removal of the immunity clause? We are talking about fighting corruption at the highest places and they are refusing to allow debate on the removal of the immunity clause.
Who told them to remove those submissions, was it the people? Immunity clause is part of what the people want. The people want to be able to hold their leaders accountable and the removal of the immunity clause will help them gather evidence and prosecute erring leaders.
We need naked justice. So, why did the National Assembly not allow the views of all the people who have submitted memoranda to be considered?
He consequently called for a total overhaul of the nation’s 1999 constitution to remove “mischievous sections”, citing particularly the immunity clause which he argued is hindering the fight against corruption and development of the country.
He maintained that having researched globally the constitutions of various countries, he could not find where such immunity clause operates even in Africa to the extent of extending the clause to cover governors, except in Nigeria.
The SAN wondered how Nigeria can succeed in the fight against corruption or achieve development when the governors cannot be prosecuted even when they commit crime while in office or be compelled to appear in court to give evidence.
According to him, “I can even easily agree with immunity clause for Presidents and Vice presidents, but I am not totally happy or overwhelmed with the provision of Section 308 of the constitution of Nigeria that bestowed immunities on the state governors across the 36 states of the federation.
“Because, immunity clause that is embedded in our constitution, is mischievous, it’s contradictory, it undermines their scope of what we call rules of law; it also did not take cognizance of rules of law, it does not also take cognizance of what we call equality before the law, it does not take cognizance of what we call fair hearing and it does not also take cognizance of what we call equal access to court.
He urged the National Assembly to expunge immunity clause from the constitution or water it down to enable citizens to demand accountability from the governors while in office, not after they had left office and destroyed evidence against them.
He said: “You are talking about fighting corruptions and then you are saying some people are immune from prosecutions, how will you fight corruption when you knew that there are some people that cannot be compelled to go to court?
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