Gov. Ikedi Ohakim, a coup plotting governor and the limits of S.308 immunity clause

The long forgotten immunity clause in the constitution has made is way back to our political discourse. It did thanks to governor Ikedi Ohakim’s decision to once again thumb his nose at the law by taking it upon himself to unilaterally accuse, prosecute, convict and punish citizen Ikenna Iwuoha with Koboko whipping and by so doing he has once again raised the issue of the desirability or otherwise of the immunity clause found in s.308 of the 1999 Constitution. During the Olusegun Obasanjo administration of 1999-2007, it became the ready-made excuse for government’s failure or refusal to enforce the law against thieving state governors, vice president and the president. The blame-it-on-the-immunity-clause excuse eventually lost is potency as I always knew it would. I knew it would lose its potency because I could see beyond the political shenanigans underlying it. There was no way it could maintain its potency in light of the fact that the president, vice-president and many state governors left office in May 2007 and almost everyone of them is out there enjoying fresh air without ever spending a night in jail, except for the occasional Farida Waziri’s “shakedown arrests” when she needs a share of the looted money for herself. My personal position on the immunity clause is patently clear from my several articles dealing with the subject matter. I view the provision as an anti-people anti-accountability, anti-law enforcement and anti-democratic provision that should have been excised from the constitution with the urgency of yesterday. It is an affront to a society that is engaged in a losing battle against the suffocating, overwhelming and corrosive forces of corruption. Given the last time I heard anyone mention s.308, I could have been fooled into believing that s.308 was no longer in our constitution. But the once check-bouncing governor Ohakim was not going to let any one fool me. He stood up for me by making sure he reminded every Nigerian of his immunity from the law. He ensured that with his “Koboko-whip-the-critic” truancy. I understand Ikedi Ohakim has been dragged to court, although I am not sure if this is in his personal capacity or as an agent of his state government. As usual, I expect the appropriate courts to engage in a regurgitation of the limited jurisprudence in this area of the nation’s constitution law, which is that a sitting governor has absolute immunity from prosecution, notwithstanding the seriousness of the allegations against him, and the source and time of the cause of action. The time and source of the cause of action are important considerations in the context of s.308 for reasons that I will touch on later in this article. I will play the devil’s advocate for one moment by postulating that it is not incomprehensible for the court to be sympathetic towards Ikenna Iwuoha and find Ohakim’s Imo state government liable for his excesses and award damages against the state government. This will be a creative way to circumvent s.308 but it will be a creativity driven primarily by the tort law primary consideration of making the damaged whole again and one that postpones pronouncement on the governor’s criminal conduct. Given the all or nothing approach that the courts have taken towards s.308, this creative approach of compensating the victim of Ohakim’s exuberance is recommended and will be worth applauding as a step forward if it materializes. But it will remain an approach that is unlikely to assuage Mr. Iwuoha’s feelings because it will postpone pronouncement on the governor’s criminal conduct. It is an approach that will grant the governor reprieve, though a temporary from being held liable for violating Iwouha’s fundamental human rights. Finally, it is an approach that will postpone the governor’s imprisonment.