The recent misconduct of some state governors has generated growing concern among Nigerians on the need to amend the constitution and remove the immunity clause thereby exposing the governors and even the president to civil and criminal prosecution while in office. The removal of immunity clause, it is hypothesized, will check executive lawlessness, promote responsive and responsible leadership by the executive branch of government. However, this argument is trumped by the impeachment clause and suffers from a serious flaw, hence; the National Assembly should exercise restraint in rushing to any emotional calls for the amendment of the constitution. Laws are never passed by emotions; otherwise its consequences will further exacerbate the very problem it is intended to cure. Under the current constitution, the President and state executives are uniquely immune from civil suit or criminal process or indictment while in office. The reason behind the provision is very simple- indicting or prosecuting a sitting President or governor would impermissibly interfere with the executive’s capacity and its ability to perform its constitutionally assigned functions and thus would be inconsistent with the constitutional structure. The point of immunity is to enable the president and the Governors to perform their designated functions effectively without fear that a particular decision or action may give rise to criminal personal liability. And because of the singular importance of the duties, diversion of their energies by concern with lawsuits would raise unique risks to the effective functioning of government. The concern of the framers of the Constitution is the chilling effect that civil or criminal liability would impose on the performance of executive duties. The determination made by the framers of the constitution for the recognition of a sitting president or governor remains sensible. And despite the misconduct of some state executives, who have abused the well reasoned privilege, nothing has altered the wisdom behind the grant of immunity, the analytical framework applied and the conclusions reached at the time of drafting the constitution. No doubt, institution of criminal proceedings and execution of potential sentences would improperly interfere with their constitutional duties and be inconsistent with their status as either the president or state executives. Recognition of immunity from such suits will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executives in light of other mechanisms creating incentives to avoid misconduct including impeachment. The constitutional interest in ensuring the executives’ ability to perform their functions outweighed the competing interest in permitting civil or criminal to proceed while occupying that office. An inevitable result of the criminal litigation is that burdens will be placed on the executives that will hamper the performance of their official duties. An incumbent President or Governor must only be removed from office through an impeachment before being subject to the criminal process. The Chief Executives should not be taken from duties that only they can perform unless and until it is determined by the parliament that they are to be relieved of those duties. The constitutional practice has always been that the president or governors can not be prosecuted and even imprisoned while they are still in office and prior to their impeachment. This is logical in law. Immunity of the President and the Governors from criminal proceedings can also be justified on the ground their subjection to the jurisdiction of the courts would be inconsistent with their position as heads of the Executive branch. Because of their unique powers to supervise executive branch and assert executive privilege, the constitutional balance generally should favor the conclusion that a sitting President or Governor may not be subjected to criminal prosecution. This is because; the possession of these powers by the President and the Governors renders their prosecution inconsistent with the constitutional structure. Such powers, which relate so directly to their status as Commander in-Chief or Chief security officers, are simply incompatible with the notion that the President or the Governors could be made a defendant in a criminal case and criminal proceedings and execution of potential sentences would improperly interfere with their duties and be inconsistent with their status. Their status as defendants in a criminal case would be repugnant to their office as Chief Executive, which includes the power to appoint judges and oversee prosecutions. In other words, just as a person cannot be judge in his own case, these executives cannot be prosecutors and defendants simultaneously. Most importantly, courts would be unable to subject powerful officials to criminal process and it is doubtful whether it is practical to have a prosecutor who is part of the Executive Branch prosecute the President or Governor. Prosecution of a sitting president or Governor prior to impeachment would create serious practical difficulties and interruption in political administration. The reason is simple, if the constitution is amended and the immunity clause is removed, the question then becomes at what point will the executive be impeached? Is it while the criminal proceedings are going on against him or after his trial and conviction? Obviously, it cannot be during the pendency of criminal proceedings because an accused person is presumed innocent until found guilty which must be proved beyond reasonable doubt. Under such circumstance, an impeachment can not proceed until a court had resolved a variety of complicated threshold legal questions and hold the Chief executive criminally liable. A criminal trial in court can take several months or years to conclude and the accused has the right of appeal. In this way, a President or a Governor may complete his term before he is finally convicted. At the same time, the president or the Governor may spend a considerable amount of his time in office meeting with his legal team to prepare a defense to the criminal allegations against him. Hence, putting aside the possibility of criminal confinement, the severity of the burden imposed upon the President or the Governors by the initiation of a criminal prosecution and also from the need to respond to such charges through the judicial process would seriously interfere with their ability to carry out their functions. An individuals mental and physical involvement in the preparation of his defense both before and during any criminal trial would be intense, no less so for the President or the Governor than for any other defendant. The process contemplates the defendants attendance at trial and, indeed, his right to confront witnesses who appear at the trial. The U.S Department of Justices consideration of this issue after the Clinton’s case, examined two distinct legal contexts that were prepared in 1973 after the Watergate scandal. The Office of Legal Counsel (OLC) prepared a comprehensive memorandum in the fall of 1973 that analyzed whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office. In considering the various submissions, the Justice Department in a Memorandum cautioned against the removal of immunity on the ground that the point of immunity is to enable the president and his vice to perform their designated functions effectively without fear that a particular decision or action may give rise to criminal personal liability. And because of the singular importance of their duties, diversion of their energies by concern with lawsuits would raise unique risks to the effective functioning of government. The Memorandum recognizes three types of burdens that merit consideration namely: (a) the actual imposition of a criminal sentence of incarceration, which would make it physically impossible for the President to carry out his duties; (b) the public stigma and opprobrium occasioned by the initiation of criminal proceedings, which could compromise the Presidents ability to fulfill his constitutionally contemplated leadership role with respect to foreign and domestic affairs; and (c) the mental and physical burdens of assisting in the preparation of a defense for the various stages of the criminal proceedings, which might severely hamper the Presidents performance of his official duties. The Memorandum for the Attorney-General states in part as follows: “In assessing the significance of these burdens, the Justice Department considered two features of the U.S constitutional system: First, the Constitution specifies a mechanism for accusing a sitting President of wrongdoing and removing him from office. See U.S. Const. art. II, § 4 (providing for impeachment by the House, and removal from office upon conviction in the Senate, of sitting Presidents found guilty of Treason, Bribery or other high Crimes and Misdemeanors). While the impeachment process might also, of course, hinder the Presidents performance of his duties, the process can be initiated and maintained only by politically accountable legislative officials. Supplementing this constitutionally prescribed process by permitting the indictment and criminal prosecution of a sitting president would place into the hands of a single prosecutor and grand jury the practical power to interfere with the ability of a popularly elected President to carry out his constitutional functions.
Posted on: Fri, 17 Oct 2014 11:31:45 +0000
Trending Topics
Recently Viewed Topics
© 2015