African Journal of Criminology and Justice Studies: AJCJS, Vol.6, #s1 &2 November 2012 ISSN 1554-3897 THE SIGNIFICANCE OF THE IMMUNITY CLAUSE FOR DEMOCRATIC CONSOLIDATION IN NIGERIA Olaoye, Ebenezer Olugbenga (Ph.D.), Department of Political Science, Ekiti State University, Nigeria Abstract This 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 Immunity The 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). 89 The Significance of the Immunity Clause by Olaoye 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 Age The 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 Immunity Sovereignty 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. Even then, no state, however powerful, can exercise de facto dominance today without co-operation with other states. An example of this was the 1991 Operation Desert Storm on Iraq by the United States of America – led Allied Forces. Another was the recent operation in Iraq by the coalition forces, led by the U.S.A., Britain, Japan and others. Sovereign immunity implies that states are free from external control because they have the ability and privilege to run their affairs the way they like. It implies also that the courts of one state may not assume jurisdiction over another state. However, due to the increasing involvement of states and their governments in international trade, more states now distinguish between purely governmental functions and commercial activities, thus restricting immunity to the former. In purely commercial activities involving the state and its agents, this distinction is viewed as necessary in the interest of justice to individuals having transactions with states, to allow them bring their grievances before the courts. Therefore, asking a state or its agents to answer a claim based upon such transactions would not constitute a challenge to the governmental act of that state. Indeed, as an informed opinion argues, it is “neither a threat to the dignity of that state, nor any 90 African Journal of Criminology and Justice Studies: AJCJS, Vol.6, #s1 &2 November 2012 ISSN 1554-3897 interference with its sovereign function” (Lord Wilberforce, cited in Umozurike, 1993:94). Diplomatic and Consular Immunity States in the international system do establish relationships to facilitate workable mutual co-operation and assistance. As such, they appoint diplomats and consuls and other categories of officers to oversee such bilateral and multilateral relationships. Diplomats oversee exclusively political relationships between and amongst countries. Therefore, their duties include representation, negotiation, and protection of their national interests, the ascertainment of conditions and developments by lawful means and the promotion of friendly relations between and amongst states, (Article 3 of the Vienna Convention on Diplomatic Relations). Consuls-General, Consuls, Vice-Consuls and Consular Agents on the other hand, protect and promote the commercial and economic interests of the sending country in the receiving country. As such, they are responsible for the processing and issuing of passports and visas, assisting nationals of the sending state as well as oversight functions in shipping, treaty implementation and notarial acts (Umozurike, 1993; Dixon, 1990). Diplomatic and consulate staff requires immunity and other privileges to perform their functions effectively in the host country, even though such services are established by mutual consent of both countries. Diplomatic immunity is based on the following three major theories in international law. The exterritorial theory that justifies the assimilation of diplomatic premises into the territory of the sending state; The “representative character” theory submits that the diplomatic mission personifies the sending state while the functional theory views the granting of immunities and privileges as conditions necessary for the diplomatic team to perform its functions effectively (Umozurike, 1993: 97). The privileges and immunities that are accorded diplomatic and consulate staff are contained in articles 31 and 32 of the Vienna Conventions on Diplomatic and Consular Relations of 1961 and 1963, respectively (Shearer, 1984; Okeke, 1986 and Wallace, 1992) that came into force on April 24th, 1964. (Dixon, 1990). Such immunities relate to the person, with the most extensive applying to the head of the mission (Ambassador or Charge de Affairs), members of the diplomatic staff (diplomats proper), the administrative and technical staff (secretaries, etc), the service staff (kitchen staff, butlers, etc) and private servants (e.g. personal valet) in descending order of importance. Members of the families of the mission members may also be covered, but members of staff who are citizens of the host country will enjoy immunity only with respect to their official duties (Dixon, 1990). Article 29 makes diplomats inviolable and may not be arrested or detained. The host state must protect and prevent any attack on their persons, 91 The Significance of the Immunity Clause by Olaoye freedom and dignity. Also, they are immune from the criminal jurisdiction of the host state and also from civil and administrative jurisdiction, except where such relates to private real property, succession under a will or an action relating to any professional or commercial activity outside his official functions. They are exempted from paying taxes, custom duties and public service such as conscription into the army and jury service (Dixon, 1990). Other immunities relate to mission property such as offices, land and residence. Article 22 makes the embassy inviolable so that agents of the host state may not enter into them without the permission of the mission head. Property and means of transport of the mission are immune from search and seizure. Archives and documents of the mission are inviolable even if they are not on the embassy premises. Furthermore,