1

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0: INTRODCTION

Immunity clause under the Nigerian Constitution being a curse or a blessing is not only a

current topic but equally controversial and intriguing. After several years of military rule,

Nigeria has returned to a democratic rule since 29 May, 1999. However, the experience

so far since Nigeria has returned to democratic rule shows that all has not been well with

our democratic experience, especially as it affects the immunity of chief executives from

judicial proceedings. Of interest to this writer was the statement made by General

Muhammed Buhari (Rtd.) former Nigeria military Head of State and the Presidential

candidate of a political party1 during the 2011 elections on March 1

st 2011,he said:

We will amend the Constitution to remove immunity from prosecution for

elected officers in criminal cases2.

Preliminarily,the first question that comes to our mind is what is immunity in this

context? According to Bola Ajibola (SAN)3,the answer to this question is simple; ‘it is

nothing but another word for exemption’. It is this immunity that is enshrined in the

1 Congress for Progressive Change (CPC).

2 Punch Newspaper, (Nigeria, 28 February 2011)1.

3 Bola Ajibola, ‘Immunity Clause under the Nigerian Constitution: A Curse or A Blessing’

(eds.11), The Jurist: Essays in Honour of Hon. Justice Salihu Modibbo Alfa

Belgore(CON)(Annual Publication of the Law Students Society, University of Ilorin 2006)56.

2

NigerianConstitution. Hence, wehave the immunity clause under section 308 of the 1999

Nigerian Constitution.The section has provided for the immunity of President,Vice

President,Governors and their deputies. Thus, since the Constitution was passed into law,

it becomes our Fons et Origo and so with the immunity clause in it.

It is believed that the Constitution must at all time cardinally be our shield and sword, it

must at all time protect all the citizen of this nationwide;female,male,young or old,fair

play,human rights,as well as sustaining the rule of law. When in our national anthem we

say ‘the nation bound in freedom peace and unity’,the only juristic guarantee for that is

our Constitution4. Akin to this is the concept of rule of law which establishes that all men

are equal before the law. This postulation became a doctrine well established by Dicey5

via; the Supremacy of the rule of law of the land and equality before the law. In

summary, no man should be placed above the law, rather every man whatever his or her

position in life in the country is subject to the ordinary law of the land in the country.

It is against this backdrop that this writer find it pertinent to check whether the immunity

clause which has passed the test of supremacy having being enshrined in the Constitution,

has also passed the test of equality before the law,that is,does the immunity clause not

make some people ‘untouchable rabbits’? Here in this work, after examining the

nomenclature of the immunity clause,we will see whether it is hindering the development

4 Ibid.57.

5 Dicey A.V, Introduction to the Study of the Law of the Constitution (10

thed.Macmillan Press

Limited, London 1977) 4.

3

of this country(a curse)or if it is advancing the course of the country (a blessing).

Recommendation will now be made on the exercise of the doctrine in order to fine tune it

to the demands of democratic governance in Nigeria.

1.1.0: BACKGROUND TO THE STUDY

To begin with, ‘We must know what the law is, or at any rate what we mean by it before

we can know how it develops’.6 It is this saying of Benjamin Cardozo that necessitates

historical survey or background of executive immunity so that we would be able to know

how it was before its transplant and transportation into Nigerian legal system. Nigeria

being a commonwealth nation inherited the English common law and doctrine of

sovereign immunity from Britain. Immunity is an antique concept which takes roots in

the ancient feudal structure of England which later became a common law principle7. The

royal and legal phraseology that the king can do no wrong (Rex non potest peccare) is of

historical antiquity. Though, the doctrine as it is understood today is one of the vestiges

and accoutrement of colonialism in this part of the continent. Under the doctrine, it is

presumed that the king can do no wrong, he lacks legal capacity of doing wrong, and

6 Benjamin Cardozo, The Growth of the Law. (4

th ed. Harvard University Press, Cambridge 1924)

22.

7 Malemi E, The Nigerian Constitutional Law(Princeton Publishing co. Lagos 2006) 446-458.

4

kings must not and was not allowed or entitled to do wrong.8 Though, if the king did

wrong, he just could not be sued as H. Street said:

…so the king,at the apex of the feudal pyramid and subject to the jurisdiction of

no other court was not suable.9

Thus, two fundamental legal principles of great antiquity-one procedural and the other

substantive, accounted for sovereign immunity which made direct action or justification

of certain claims against the crown impossible:

The feudal rule that no lord of the manor could be sued in his own court meant

that the king being the great overlord of all and the peak of the English legal

system, could not be suing his own court or in the court of any of his vassals.

Added to this procedural difficulty wasprinciple of substantive law that ‘the king

can do no wrong’ which meant that no act or omissionof the sovereign was open

to impeachment or condemnation on the ground that it was wrongfulor

tortuous.10

Subject or vassals with any claim against the king in the 13th

century presented them to

the king informally, whereupon the king might refer them to his Court by endorsing it

with mark ‘Fiat justitia’.11

This was through a procedure known as Petition of Right

introduced during the reign of Edward 1. Any subject prejudiced by a royal refusal to

consider his petition was without remedy. Petition of Right was limited to recovery of

land and proprietaryaction while other heads of action were left unremedied. Petition of

8 Ibid.

9 Street H, Government Liability: A Comparative Study (Cambridge University Press New York,

1953) 42.

10 Ewelukwa D.I.O, ‘Proceedings by and against the State in Nigeria’ (1973)11 Nigeria Bar

Journal.10 at 11.

11 This means: ‘Let Justice be done’.

5

Right could also not lie in torts; this is based on Brocton’s proposition, that ‘the king can

do no wrong’.12

Commenting on this,Cockburn C.Jobserved13

as follows:

…a petition of right in respect of a wrong in legal sense of the term shows no

right to legal redress against the sovereign for the maxim that king can do no

wrong applies to person as well as political wrongs….

Petition of right lasted till only the 14th

century. Since the 15th

century, petition of right

had fallen into disuse due to procedural difficulties. It was superseded by the real actions,

‘traverse and monstrans de droits.’14

Petition of right revived in 19th

century as

‘monstrans de troits’ was superseded and went into disuse. However, on the 13th

February 1947, Viscount Jowitt, introduced to the House of Lords a government

sponsored crown proceedings bill which was endorsed into law on 13th

July,1947 and

came into force on 1st January 1948, this is otherwise known as Crown Proceeding

Act(CPA)1947. This Act abolished the petition of right procedure and as well makes

12

Taiwo E.A, ‘A Critical Appraisal of the Officers Protection Act’ (An unpublished L.L.M

dissertation submitted to the Faculty of Law, Obafemi Awolowo University, Ile-Ife. March,

1998)16.

13 Feather vReg (18656) Best& S,257 at 295-296.

14 Monstrans de droit means manifestation of right. It is a remedy which a subject had when

the crown was in possession of property belonging to him and the title of the crown appeared

from facts set forth upon record. In such a case, the claimant might present a monstrans de

droit , either showing that upon the facts as recorded, he was entitled to the property, or setting

forth new facts showing that he was entitled.

6

crown not only liable in contract but also in torts.Thus, the historical myth surrounding

the crown was totally removed.

Coming back home, immunity in government is not strange even to our people in

Southwest of Nigeria. Before the advent of colonization, in the 18th

and 19th

centuries,

our kings governed us in our communities. These kings reigned and ruled absolutely and

executively, as they have rights over life and death of their subjects. Hence, they are

being described as ‘kabiyesi’, meaning no one dare query the acts and deeds of kings. In

those days, they were known to commit all forms of criminal atrocities and diabolical

acts, but no one dare query them because of their ‘divine rights’and immunity in

governance, even unto death.

There are two important Yoruba proverbs(or should I make bold to say Yoruba common

law)which are clear indication and example of these acts that I tend to state here in order

to depict the absolute power and immunities being enjoyed by the kings. The first one

states; ‘Oba n pe e,o ni o n da ifa,bi ifa re ba fo ire,bi oba ni ko fo ire nko?’Which

ordinarily means; ‘You cannot ignore a call from the king with an excuse that you were

busy consulting your oracle, if your oracle comes out with a positive answer, can it not

still be contradicted by the king?’The second proverb is similar, it states that ‘Oba n pe e,

o nio n da ifa, ta lo ni e, ta lo ni ifa?’ Meaning; ‘if on being ordered by the king to appear

7

before him, your excuse was that you were consulting the oracle; is it not the king that

owns you and the oracle?’15

These are the kind of powers and immunities which traditional rulers enjoy in the past but

in this modern era,they have been deprived of such prerogatives and immunities and

anyone caught in the despicable act either practicing directly or covertly will be

prosecuted if found guilty,might even be given death sentences. An example is the Osun

State monarch who is presently standing trial for alleged rape of a corps member.16

It is from this historical background (especially the colonization experience) thatwe have

the immunity clause which protects the President,Governors and their deputies under

section 308 of the 1999 Constitution. It must however be recalled that the 1999

Constitution was not the first to make provision for immunity of the President and the

Governor in this country. The 1963 republican Constitution17

made similar provisions. In

the 1979 Constitution18

also similar provision was made for immunity, even the still born

1989 Constitution had the immunity clause.19

In fact,under the 1979 Constitution, in the

15

Bola Ajibola,‘Immunity Clause under the Nigerian Constitution: A Curse or A Blessing’ (eds.),

The Jurist: Essays in Honour of Hon. Justice Salihu Modibbo Alfa Belgore.(CON)(Annual

Publication of the Law Students Society, University of Ilorin 2006)58.

16 Oba A. A, The Alowa of Ilowa before a Magistrate Court in Osun State; The Punch

Newspaper, (Nigeria 8 April 2011).2.

17 Section 161(1).

18 Section 267(1)(a).

19 Section 320.

8

case of Chief (Mrs.) Funmilayo Ransome Kuti v Attorney General of the Federation,20

the

Supreme Court dismissed the appeal filed by the plaintiff on the basis of the maxim ‘rex

non potest precarre’ (the King can do no wrong).

1.2.0: OBJECTIVES OF STUDY

This project work has the objective of examining the concept of immunity as it covers the

executive offices. It is the intention of this writer to contribute to the contemporary legal

problems on immunity of the chief executives that are presently unfolding in our

democratic experience. This is with the view of getting all talks on the issue annexed and

reduced into literature form or writing so as to serve as a reference point to people who

will be interested in this area of law in the future.

Legal problems can best be solved by getting the problems discussed. If those concerned

with law can come out and express their opinion on a legal problem, solution to that

problem will not be farfetched. It is with this view in mind that this writer decides to

embark on this study and it is hoped that by the end of this write up,the writer would have

been able to give a useful suggestions as to how the problem of immunity of chief

executives in Nigeria can best be tackled.

20

(1985)6 S.C. 246.

9

1.3.0: FOCUS OF STUDY

The project work seeks to concentrate on the abuse of immunity clause by politicians in

Nigeria. Although, there are other types of immunity like judicial immunity,legislative

immunity, sovereignimmunity, this paper will focus on section 308 of the 1999

Constitution as it relates to Presidents, Vice Presidents,Governors and Deputy Governors.

1.4.0: SCOPE OF STUDY

This project work will discuss more on executive immunity. The relevant laws of Nigeria

particularly the present 1999 Constitution of the Federal Republic of Nigeria will be

examined alongside with the 1979, 1989 and 1963 Constitutions of Nigeria. Various

Constitutions of some other countries of the world like India, U.S.A, Ghana, Cyprus,

Zambia e.t.c. will be examined, so as to serve as a comparative study to the Nigerian

experience.

1.5.0: METHODOLOGY

In the course of this work, recourse and reliance shall be placed on the primary and

secondary sources of law. The source of information in this work is library based and

essentially documentary, legal framework both local and international, as well as the

opinion of text writers and jurists. The primary sources of law to be consulted include,

but not limited to; statutes like the Constitution of Nigeria 1979, 1989 and 1999,

10

Evidence Act 2011 as amended, Police Act21

, Diplomatic Immunities and Privileges

Act,22

etc.

The secondary sources of law to be consulted are textbooks written by season jurists,

articles by learned scholars and law teachers. The writer will also make use of articles in

the newspapers, on the internet,legal dictionary and law reviews to achieve the objectives

of the work.

1.6.0: LITERATURE REVIEW

The essence of Literature review is to ascertain the materials consulted by the researcher

in the course of the research work. There are some authorities on the doctrine of

immunity;though they are,mostly foreign authorities especially as it relates to the

legislature and judicial arm of government.

Most works on executive immunity is usually found in journals,23

internet articles written

by various Nigerian scholars.24

These works are also found in articles written in the

21 Cap P19, LFN 2004.

22 Cap. D9. LFN 2004.

23 Osho P.E and Idubor R, ‘The Scope of Executive Immunity under the Nigerian Constitution’

(2000/2001) vol. 6 No 1 University of Benin L.J 1-28, Lawal I. ‘Is Executive Immunity

Coterminous with Executive Corruption?’(2006)Vol. 1 Nos.1& 2 International J. of Law and

Contemporary Studies 325,328, Ojealaro B.P, Mokidi S.K, &Etose G.O, ‘Immunity Clause under

the 1999 Constitution: Issues and Challenges’, (Paper Delivered At the Annual Conference of the

Nigerian Association of Law Teachers held in Abia State University, Umahia, May 24th

-28th

11

Newspapers25

. However, Jadesola Akande,26

Ese Malemi,27

Oluyede28

Kehinde Mowoe29

and Professor Nwabueze30

have done a comprehensive work on the subject.E.C.S

Wadeand A.W Bradley31

also provide an insight.

According to Mowoe,32

the practice in modern societies of making provisions for

restriction of legal proceedings against the Chief executive of a nation has been said to be

a functionary mandated incident of the president unique office. She however criticized

the decision in Duke v Global Excel Communications33

which allowed a president or

Governor to sue in their personal capacity .She says that34

:

It would appear that such a decision is an unfair interpretation of the constitution

and is rather tantamount to reading into the constitution a provision not

2009), OmoArishie G, ‘Reconsidering Executive Immunity under the Nigerian Constitution’

(2007-2010) Nigerian Current Law Review, 1-38 ,The Jurist, University of Ilorin,vol11 2006.

24 Ndibe O, ’Nigeria’s Twin Scandal’ January 2008 at <http://www.Okeyndibe.com>accessed

on 04 January, 2012.

25 Omenuwa O, ‘Thoughts on Constitutional Immunity and Anti-Corruption Crusade’ The

Guardian Newspaper (Nigeria January 13, 2009) 83.

26 Akande J, Introduction to Nigerian Constitution,(MIJ Professional Publishers, Lagos 2000).

27 Malemi E, The Nigerian Constitutional Law(Princeton Publishing co. Lagos 2006).

28 Oluyede P.A.O, Constitutional Law in Nigeria (Evans Publishers Ibadan, Lagos 2001).

29 Mowoe M,Constitutional Law in Nigeria (Malthouse Press Limited, Lagos2008).

30 Nwabueze B.O, Presidentialism in Commonwealth Africa (Hurst & Co. London 1977).

31 Wade ECS and Bradley A.W, Constitutional Administrative Law, (10

th ed. Longman Press,

London 1997).

32 Mowoe M, Constitutional Law in Nigeria (Malthouse Press Limited, Lagos2008).165

33 (2007)1WRN 63.

34 Mowoe M, Constitutional Law in Nigeria. 169.

12

expressly stated and which the drafters of the constitution may have

intentionally excluded because of the conflict it would naturally create.

I agree with the submission of Mowoe for a liberal interpretation of the constitution. This

is because; to allow these chief executives to sue will mean that the constitutional

provision will not only be a shield but a sword in the hands of these executives. Thus they

enjoy the ‘side of both worlds’. This line of thought is hinged on the authority of Rafiu

Nabiu v State.35

However, Jadesola Akande holds a contrary view to Mowoe, while commenting on the

case of Onabanjo v Concord Press36

which the Court in Duke v Global Excellence37

followed, she agreed with the learned Judge. She says that38

:

He was quite right not to write into the constitution what is not stated and cannot

reasonably be deduced from a literal interpretation of the unambiguous

provision. If there is any gap, it is the duty of the legislator to fill it.

With due respect to Akande, this canon of interpretation is rather narrow and it is more

safe to align myself with the position of Mowoe. Akande however maintains that

although there is immunity, the acts of these officials can be subject to judicial

review.39

Also, subordinates of these executives through whom they act may be prohibited

by injunction from doing a threatened illegal act.

35

(1982)2 N.CL.R 293. 36

(1981) 2 N.C.L.R. 399.

37 (2007)1 WRN 63.85-88.

38 Akande J, Introduction to Nigerian Constitution,(MIJ Professional Publishers, Lagos 2000). 433.

39 Ibid.434.

13

To Peter Oluyede, he holds the view that the Common law maxim that the king can do no

wrong is applicable to Nigeria notwithstanding the provision of section 6 of the 1979

Constitution which provides for judicial power between various organs of government

and an individual. To him, the right of any person to sue the Government does not rob the

government of its defense of non liability as provided by the Common law and reinforced

by section 274 of th1979 Constitution. While commenting on the application of the

maxim in Chief Mrs. Olufunmilayo Ransome Kuti v A.G (federation), He said40

:

It is suggested that this approach is better although one commends the pragmatic

attitude of the Supreme Court in its proposition. Perhaps, it is a way of

developing Nigerian common law.

With due respect to Oluyede, it is submitted that the position of law relating to executive

immunity is now primarily governed by section 308 of the 1999 Constitution and we can

now say that the Common law principle only serves as a guide or at best a persuasive

authority in Nigerian courts.

To Ese Malemi, he holds the view that it is section 308 of the 1999 Constitution that

provides for immunity of the President, Governors and their deputies. He also posits that

any suit pending against these officers should either be adjourned sine dieor settled

amicably.41

His position on adjournment sine die is based on the Court of Appeal

decision in Tinubu v I.M.B Securities.42

With due respect to this learned writer, the

40

Oluyede P.A.O, Constitutional Law in Nigeria (Evans Publishers Ibadan, Lagos 2001). 486

41 Malemi E, The Nigerian Constitutional Law(Princeton Publishing co. Lagos 2006).459

42 [2001]16NWLR (Pt 740)640-670.

14

Supreme Court has stated in this case on appeal that the proper order to make is to strike

out the suit and not adjourn sine die. This decision will be quoted in extensor in the

course of this project work. Malemi has however extended the provision by applying the

section to situations where other systems of government provide for Head of

governments like the Prime Minister, Deputy Prime Minister, Premier, Deputy Premier

and other equivalent.43

However, in this work an attempt will be made to appreciate and accommodate various

views of the above and more writers in the articles, journals and the textbooks. The aim is

to harmonize all these views to come to a working solution to the problems which

immunity clause has brought with it. However, I will disagree with a writer who said

that:44

I am of the opinion that it would be better to turn a blind eye to the immunity

Clause in the Constitution and get on with our lives. To borrow a typical Akan

saying: 'Se Wo Fee fee Funi Ani A Wohu Nsam baa'. If you subject the eyes of a

corpse to scrutiny, you are more likely to be greeted by maggots.

This is because to share the view of this Akan proverb is to live in constitutional

servitude of some few privileged. More will be discussed about this position in the course

of this topic.

43

Malemi E, The Nigerian Constitutional Law.460

44 Francis Tawlah, ‘Why the Immunity Clause should Stay’, The Ghanaian Chronicle, (Ghana 30

November 2011)14.

15

1.7.0: DEFINITION OF TERMS

The major term which this writer needs to unravel its meaning is the word ‘immunity’. In

Words or Phrases,45

immunity is defined as ‘freedom from duty or penalty,an exception

from any charge,duty,tax or imposition. Immunity is a right peculiar to some individual

or body,an exception from some general duty or burden, a personal benefit or favour

granted by law contrary to the general rule’46

Black’s Law Dictionary defines immunity

as:

An exemption as from serving in an office, or performing duties of law

generally requires other citizens to perform, for instance, exemption from

penalty, burden or duty, also called ‘special privilege’47

Webster’s dictionary defines immunity as an ‘exception from tax, duty or jurisdiction,

freedom from danger or penalty’.48

To Edward j. Kionka:49

An immunity is a defense to tort liability which is conferred upon an entire

group or class of personsentitles under circumstances where considerations of

public policy are thought torequire special protection for the person, activityor

entity in question at the expense of those injuredby its tortuous act. Historically,

tort litigations against units of governments, public officers, and charities and

between spouses, parents and children, has been limited or prohibited on this

basis.

45

Permanent ed.Vol. 20.237.

46 Exparte levy 43 Ark 42,(1884) 54, 51, A.M Rep.550.

47 Garner B.A, The Black’s Law Dictionary (7

th ed. West Group Publishing Co., St Paul Minn,

1999) 1114.

48 Webster’s New World Dictionary and Therasus (2

nd ed. Editors of Webster’s New World

Dictionaries, Chalton Laird 2002)1643.

49 Garner B.A, The Black’s Law Dictionary (7

th ed. West Group Publishing Co. St. Paul Minn, 1999)

1114.

16

Coming back home, Chukwuma Eneh J.C.A50

said that:

It should be noted that ‘exemption’ carries a similar meaning as immunity, so

that when one is exempted from existing legal relations,he will be said to have

immunity or exemption. The doctrine of immunity turns out to be the correlative

of disability and the negative of liability,again,in other word; immunity is

clearly analogous to disability tending to no liability.

To Oladele Balogun:51

The word immunity sounds like a Yoruba word-‘immuniti’. The meaning of

‘immunity’in Yoruba means the state of being unconquerable and invincible.

Honourable Justice Mutalib Ambali, the Grand Khadi of Kwara State while explaining

what immunity is, said that52

:

The keyword in both theme and topic is immunity which simply put means

exemption or is like special protection granted to certain categories of public

officers from a duty or liability of services of process in the interest of smooth

and good performance of their services to the society.

Immunity could be absolute or qualified. Absolute immunity is a complete exemption

from civil liability, usually afforded to officials while performing their duties.53

From the

Nigerian standpoint; it includes immunity from civil or criminal prosecution against the

holder in his personal capacity while in office. Qualified immunity on the other hand is

50

Duke v Global Excel Communications Ltd &Ors (2007)1WRN 63.

51 Balogun O, ‘African leaders and Constitutional Immunity’: the Moral Question. (Paper presented

at the interdiscipilanary Conference on ‘Ethics and Africa’, co sponsored by Jean Blumenfeld

center for Ethics, Georgia State University and philosophy department, University of Cape Town,

South Africa, 29-31 May 2006)1.

52 200, Annual Jurist Journal, Publication of Law Students Society Volume 9.

33 Garner B.A, The Black’s Law Dictionary (7

th ed. West Group Publishing Co., St Paul Minn, 1999)

1115.

17

immunity from civil liability that is conditioned or limited, for instance by a requirement

of good faith or due care. Under the Nigerian law, this extends to immunity for an official

act exemplified by those enjoyed by Nigerian judges and lawmakers, whereas criminal

acts and acts not falling within their official mandates are liable to Court

processes.Immunity benefits different government officials or exists at different levels

under different epithets. Thus, legislative immunity is enjoyed by lawmakers, executive

immunity is enjoyed by elected officials of the executive branch of government, judicial

immunity is granted to judges, diplomatic immunity is enjoyed by a sovereign

government, while constitutional immunity is one contained in the Constitution.

Immunity is also an internationally recognized concept. By the Vienna Convention on

Diplomatic Relations 1961,54

foreign Head of States and Diplomats are immune from

civil and criminal process of foreign countries. Nigeria being a signatory to this

Convention, has domesticated it.55

1.8.0: CONCLUSION

In this chapter, we have traced the origin, meaning and types of immunity. However, as

simple as this concept seems in definition and description, it can be said that it is a two

faced ‘monster’ which is capable of metamorphosing into a complex term when in

54

Entered into force on 24 April 1964.

55 Diplomatic Immunities and Privileges Act, Cap.D9. LFN 2004. This is in line with the

provision of section 12(1) of the Constitution of the Federal Republic of Nigeria 1999. See also

Fawehinmi v. Abacha [1996] 9 NWLR(Pt. 475)710.

18

operation in any political environment if not properly treated. In fact, the concept has torn

apart the academic, judicial, international and political circleabout the best approach to

the concept of immunity.

Not to disabuse our minds, it can simply be said that the immunity clause has played an

important role in the past, present and presumably in the future. It is the future that this

writer is concerned about.

19

CHAPTER TWO

RATIONALE AND SCOPE OF IMMUNITY CLAUSE UNDER

SECTION 308 OF THE 1999 CONSTITUTIONS WITH THE

EXCEPTIONS THERETO

2.0.0: INTRODUCTION

This chapter seeks to explain the rationale for the doctrine of immunity and to examine

the scope of the doctrine under section 308 of the 1999 Constitution with the exceptions

or limitations thereto. This will be followed by a conclusion.

2.1.0: RATIONALE FOR THE DOCTRINE OF IMMUNITY

To ensure the inviolability and dignity of the offices of the Chief executives, the need to

put in place what guarantees and safeguards this protection under Section 308 of the 1999

Constitution cannot be overemphasized. If Presidents were obligated to justify legally

eachcontestable action of the executive branch, they would be subjected to intolerable

control and inspection by a supposedly coordinate branch and would be burdened by

countless impediments to effective action. Even if criminal action charges are brought

against a President, there are several conceptual problems.

The President has supervisory duties and special responsibilities entrusted to no other

officer of the government, he is the penultimate member of the executive arm. The

20

President faces issues and makes decisions on matters that are far reaching, very sensitive

and ‘likely to arouse the most intense feelings’ and it is in the public interest for the

President, Governors and their deputies to have the opportunity to make these decisions

efficiently, skillfully and without fear of civil liability.

Justice Powel in Nixon v Fitzgerald56

while emphasizing on the significance for

immunity relied on two arguments:

(1)the President cannot make important and discretionary decisions if he is

constant fear of civil liability and

(2) Diverting the President’s time and attention with a private civil suit affects

the functioning of the entire federal government thereby abrogating the

separation of powers mandated by the constitution.

Nwabueze is perhaps, the most emphatic African voice on this point.57

It is his opinion

that the immunity granted to the President for instance:

..is for the office and not for the man…It is the majesty and dignity of the nation

that is at stake. To drag an incumbent president to court and expose him to the

process of examination and cross examination cannot but degrade the office.

The affront to the nation involved in this could be easily perceived if it is a

foreigner temporarily resident in the country were to take its president to court

for, say, a breach of contract, and attempt to discredit him in cross-examination

as a liar and disreputableperson. It makes no difference that the complainant is a

national. The interest of the nation in the preservation of the integrity of its

highest office should outweigh the inconvenience to the individual of the

temporary postponement of his suit against the president.58

56

457U.S(1982)731.

57 Nwanbueze B.O, Constitutional Democracy in Africa (vol 2, Spectrum Books Ltd. Lagos,

2005)340.

58 Ibid.120.

21

Nigerian Courts have also commented on the rationale.In Chief Collins v Sam Mbakwe59

,

the Supreme Court noted per Kayode Eso J.S.C:

I think the purpose of section 267 of the 1979 Constitution is clear. It is to

prevent the Governor from being inhibited in the performance of his executive

functions by fear of civil or criminal litigation during his tenure of office.

Again in Alamieseigha v Yeiwa,60

the Court of Appeal noted that:

The intendment of the section is to bar any proceedings, civil or criminal which

will have the effect of interfering with the running of the office to which any of

them was elected…

Thus, the importance of the immunity clause cannot be over emphasized, due to its

impact it plays in the stability of executive arm of government.

2.2.0: SCOPE OF THE IMMUNITY CLAUSE UNDER THE 1999

CONSTITUTIONOF THE FEDERAL REPUBLIC OF NIGERIA

By section 5 of the 1999 Constitution, the executive power is conferred on the President

at the federal level and on the Governor at the State level. Section 308 provides for the

scope of executive immunity as far as Nigeria is concerned. It is best to reproduce the

section below:

(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.

59

(1984)1 SCNLR 192.

60 [2000]7 NWLR (Pt.767)581.

22

(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 person of any court requiring or compelling the appearance of a person to

whom this section applies, shall be applied for or issued;

Provided that in ascertaining whether a period of limitation has expired for the

purpose of any proceedings against a person to whom this section applies, no

account shall be taken ofhis period of office

(2) the provision of subsection (1)of this section shall not apply to civil

proceedings against a person to whom this section 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, governoror 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 thefunctions of the office.

From the above Section, it is evident that the scope of this immunity clause applies to

anybody holding the officeof President, Vice President, Governors and Deputy

Governors for the period of their office, the period of their office is a period within which

they hold the office in the respective capacity.It follows that immunity clause will not

shield the aforementioned persons who have left office. Immunity clause also does not

extend to local government Chairmen, Ministers or Traditional rulers.61

It should also be

noted the immunity granted under this section is personal and not official.

61

Dalhatu v. Muazu [2002]16 NWLR(Pt 793)319,note 12.by virtue of section 308(3) of the 1999

Constitution, a Person holding the Office of President or Vice President, Governor or Deputy

Governor is entitled to enjoy constitutional immunity. Section 3 of the Constitution provides

‘There shall be thirty six States in Nigeria…’ it follows therefore that the Immunity Clause in the

Constitution benefits 74 public officials at both the federal and State levels during any four year

term.

23

The section absolutely prohibit the institution or in any event of prior suit, the

continuation of civil or criminal proceedings against the President,Governors and their

deputies. Thus, all Nigerian Courts are therefore bound to take judicial notice of this

provision when not pleaded.62

The effect of Section 308 on proceedings against the

aforementioned persons render such proceedings civil or criminal, null and void and of

no effect.63

In Industrial &Commercial Serving Nigeria Ltd v Balton BV,64

it was held that once one

of the parties to the suit belongs to the category of office holders named in Section

308(3), the suit must be struck out, this is the appropriate order. Also in R v Madan,65

it

was held that immunity need not be expressly claimed, that its existence renders the

exercise of jurisdiction null and void. Thus, the Court is robbed of its jurisdiction. It is

therefore no surprise that the High Court of Kaduna struck out the action instituted by the

Economic and Financial Crimes Commission against Governor Joshua Dariye of Plateau

State.66

62

Colonel Olurotimi &ors v Macgregor(1974)11 SC 133.138-141.

63 Ibid.

64 [2003]8 NWLR(Pt.822)223.

65 (196)]2 QB 1.

66 The Guardian Newspaper,(Nigeria 7 December 2004) 21.

24

The Court in Attorney General (Federation) v Abubakar67

also construed the meaning of

the word ‘notwithstanding’ which was used in opening the section. It said that:68

When the word ‘notwithstanding’ is used in a section of a statute, it is meant to

exclude an impinging or impending effect of any other provision of the statute

or other subordinate legislation so that the said section may fulfill itself. It

follows that, as used in section 251(1) of the 1999 Constitution, no provision of

that Constitution shall be capable of undermining the said section.

Thus, the above authority makes Section 308 absolute and not undermined by any

statute.69

The immunity clause as earlier said is purposely provided to protect the

aforementioned person from any civil or criminal proceedings that might want to be

instituted while serving in their respective capacities. The question that arises at this

juncture is whether a President or Governor can institute or continue a proceeding against

any person while serving as a governor? Put in another way, can they pursue an appeal?

In Tinubu v I.M.B Securities Plc,70

the Governor of Lagos state was the appellant in the

case, the Court of Appeal adjourned the case until the appellant shall have vacated the

office. The Supreme Court upholding the decision of the Court of Appeal stated Per

Kalgo J.S.C:

It is my respectful view therefore that whichever you look at it, the combined

effect of paragraphs (a) and (c) of subsection (1) of section 308 constitutes a

total prohibition and any step taken to proceed with the appeal now pending in

the Court of Appeal is a contravention of section 308(1) of the Constitution.

67

[2007] ALL.F.W.L.R (Pt 398)117.

68 Ibid. 1298, Para D-F.

69 Emesin v Nwachukwu[1999]6 NWLR(Pt 605)154 at 167.

70 [2001]16NWLR (Pt 740)640-670.

25

Also in Industrial &Commercial Serving Nigeria limited, Donald Duke V Balton B.V71

,

the appellant had been sued by the 1st respondent at the High Court of Lagos claiming

some amount being worth of goods delivered by the first respondent to the 1st appellant

and guaranteed by the second appellant and the second respondent.In 1996, judgment was

given in favour of the 1st respondent and the appellant appealed to the Court of Appeal

seeking to reverse the decision of the lower Court. The Court of Appeal suo motu raised

the issue of the validity of the appeal given the fact that the 2nd

appellant was at the

material time governor of Cross Rivers State. The Court held that a person to whom

section 308 applies cannot while in office pursue an appeal before an appellate court.

It should quickly be added that nothing stops a Governor or President from initiating a

suit to obtain remedy from wrongs done to him. This principle was laid down as early as

1981 in Chief Victor Onabanjo v Concord Press of Nigeria,72

the plaintiff, the Governor

of Ogun state in his personal capacity sued the defendant, publishers of Concord

Newspapers for libel, Kolawole J. of the High Court held that since the Governor was not

expresslyincapacitated by any provision of the Constitution, he could sue in his private

and personal capacity. In the words of Oguntade J.C.A73

:

Reading the provision of section 308 of the 1999 Constitution above, and giving

the provision its ordinary interpretation, there is nothing stopping a Governor

from initiating actions against otherpersons for reliefs in his personal capacity. It

71

[2003]8 NWLR(Pt.822)223.

72 (1981) 2 N.C.L.R. 399.

73 Jonathan v Ibori&anor (Unreported: Suit No.FCT/CU/505/07).

26

may appear rather odious and may be unfair that the same Constitution that

protects a governor from being sued does not correspondingly protect other

persons from the suit of the governor. But it is not for me to read into the

constitution a provision not therein stated.

This decision has been cited with approval in Duke V Global Excel Communications

limited.74

This case commenced at the High Court of Rivers State. The respondent, who

at the material time was the executive Governor of Cross Rivers State, instituted an

action against the appellants for an alleged libelous publication in the Global Excellence

Magazine. Upon service of the writ, aconditional appearance was entered on behalf of the

appellants who also filed a notice of preliminary objection based on the provisions of

section 308 of the Constitution, challenging the jurisdiction of the Court to entertain as

constituted. The main ground of objection was that in line with the immunity enjoyed by

the plaintiff under section 308, he too could not institute, maintain, or continue with any

legal proceedings, including the present one in any court of law. Swayed by this

submission, the trial court held inter alia that a serving Governor could not sue or be sued

in his personal capacity while still in office. On appeal, the Court of Appeal, by a

majority decision allowed the respondent’s appeal by holding that although a serving

Governor cannot be sued, he can sue in his personal capacity while in office. On a further

appeal to the Supreme Court, the decision of the Court of Appeal was upheld.

74

(2007)1 WRN 63.85-88.

27

This position of law has been criticized by a writer75

for not being a true reflection of the

principle of rule of law. A tacit point raised by one writer76

is if a person entitled to

executive immunity decides to institute a civil action in a private capacity and the

defendants counter claims against him, should the office holder still be accorded

immunity against such a counter claim? The writer opined that the answer should be

negative as the office holder has unwittingly stripped himself of the constitutional

protection. It is difficult to say what interpretation the Courts would give under such

situation. A counter claim by its very nature is regarded as a separate and an independent

action that may proceed irrespective of the dismissal, stay or discontinuance of the

plaintiff’s action.77

That being the effect of a counter claim, the Courts may be reluctant

to sustain a counter claim against the beneficiary of executive immunity. This position is

reinforced by the Court’s endorsement of the position that immunity cannot be waived.78

A critical look at the provisions of Section 308 will reveal that emphasis is placed on

proceedings.The question then is whether or not the proceeding of a tribunal of enquiry

constitutes or amount to a Court proceeding as envisaged under Section 308? The Oxford

Companion Law defines ‘proceedings’ as a term sometimes used as including or meaning

75

Kehinde Mowoe, Constitutional Law in Nigeria.,(MIJ professional publishers, Lagos 2000)169.

76 Lawal I.B, ‘Is Executive Immunity Coterminous with Executive Corruption?’(2006) Vol. 1 Nos

1&2 International Journal of Law and Contemporary Studies 325,328.

77 Nwadialo F., Civil Procedure in Nigeria(2

nd ed. University of Lagos Press, Lagos 2000)392-395.

78 Tinubuv IMB [2001]16NWLR (Pt 740)640-670.note 57.

28

an action or prosecution and sometimes meaning a set of suits in an action.79

‘Proceedings’ may also be used synonymously with ‘action’ or ‘suit’ in equity, from the

issuance of the writ or filing of the complaint until entry of a final judgment. It may also

be used to describe any act done by authority of a Court of law and every step required to

be taken in any case by either party.80

In Legal Practitioner’s Disciplinary Committee v Fawehinmi81

, the Court held that when

a statutory is vested with powers other than judicial which invariably is administrative or

ministerial; it is not a court or a tribunal within the section. The Court held further that a

court or tribunal is any statutory body which has power to decide controversies and give

binding decisions.

This issue was solved in Attorney General (Federation) v Abubakar.82

The issue was

whether having regard to the provisions of section 142(1)and (2) and Section 308 of the

Constitution, the plaintiff being a serving Vice President of Nigeria can have any civil or

criminal proceedings including that commenced by filing a charge before the Code of

Conduct Bureau established in the Fifth Schedule of the Constitution, instituted against

him during the tenure of his office.The Court held that:

79

Oxford Companion Law, (Claderon Press, Oxford 1980) 1002-1003.

80 Black M.A, Black’s law Dictionary (West Publishing co. St. Paul Minnesota 1970) 1053.

81 [1985]2 NWLR.(Pt.7)300.

82 [2007] All.F.W.L.R (Pt 398)117, Ummanah v Attah [2004]7NWLR (Pt 871)63.

29

The immunity under section 308 prohibits every civil and criminal proceeding

against the president,vice president, governor and deputy governor

notwithstanding and/or regardless of the court where the prosecution takes

place, whether it is before a court of law established by section 6(5) of the

constitution or a tribunal established by paragraph 15(1)of the fifth schedule to

the Constitution with the features of a Court and performing the duties of a

court.

By virtue of Section 308(1)(b), the aforementioned persons cannot be arrested or

imprisoned. It provides that:

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.

The subsection simply means as held in the case of Fawehinmi v Inspector General of

Police,83

, that a person to whom it applies shall not for any reason whatsoever be arrested

either actually or indirectly for instance, ‘by placing under House arrest’. Consequently, a

President or Governor accused of a crime cannot be arrested or imprisoned during the

tenure of his office. It was for this reason that Chief Omisore, former Deputy Governor of

Osun State, could not be taken into Police custody upon strong and serious allegations of

his involvement in the death of theformerMinister of Justice, Bola Ige. No action could

be taken until he was removed from office and his tenure abruptly brought to an end

under the provision of section 188 of the Constitution.

It should however be noted that Police investigation does not amount to arrest or

imprisonment of the person aforementioned. Though one might lead to the other,

investigations can be successfully conducted without any need to detain or arrest the

83

[2000] 7NWLR (Pt 665) 533.

30

person under investigation.The decision of the Supreme Court in Fawehimi v Inspector

General of Police merits some observations. The fact was that the appellant by a letter

requested the 1st respondent to investigate alleged crimes committed by Bola Ahmed

Tinubu, the former Governor of Lagos State in pursuant to Section 4 of the Police Act.84

The respondent declined the request to investigate stating that Section 308 of the

Constitution confers immunity on the Governor from Police investigation. The appellant

thereupon took an originating summons against the respondent to investigate the

Governor. The Supreme Court held per Uwaifo J.S.C that85

:

A person protected under section 308 of the 1999 Constitution, going by its

provision, be investigated by the police is, in my view beyond dispute. The

police have discretion whetheror not to conduct investigation into any allegation

of crime made to them. And the court will not interfere if on the fact of a

particular case, the discretion is properly exercised. There is therefore nothing in

section 4 of the police Act which denies the police of any discretion whether or

not to investigate any particular allegation, or when they decide to investigate, to

do so to its logical conclusion.

It is interesting to note that apart from the immunity clause shielding these people from

prosecution; it also prevents them from compellation to give evidence before the Court.

Section 308(1)(c) provides that:

On process of any court requiring or compelling the appearance of a person

towhom this section applies shall be applied for or issued.

84

Cap P19, LFN 2004.

85 [2000] 7NWLR (Pt 665) 533.Par B-H.

31

By virtue of Section 175 of the Evidence Act,86

all persons are competent to testify unless

the court considers them incapable of understanding questions put to them or of giving

rational answers by reason of tender years, extreme old age or disease of the body or

mind. Consequently, the President, Governors and their deputies are all competent

witnesses. They are however by virtue of Section 308(1)(c) of the Constitution not

compellable witnesses. No Court can issue a subpoena of whatever form, requesting the

executive either at the federal or State levels to testify, tender documents or give oral

evidence.87

Again, a person to whom Section 308 applies cannot waive such privilege. Per

Muntaka-Coomassie said that:88

Courts in Nigeria have no jurisdiction to try a person on criminal charge or civil

matter if he is entitledto immunity under the constitution even if for a reason that

his immunity is waived. Any waiver of suchimmunity is ineffective. The

immunity under section 308(3) of the Constitution is over and above thepopular

diplomatic immunity;therefore, waiver of any kind does not arise. The immunity

is not that ofthe person of the appellant but of the particular State which he

represents during the tenure of his officeas an executive governor of a state.

The case of Tinubu v I.M.B securities89

merits consideration. The essential question

which came up before the full panel of the Supreme Court for decision were two fold,

namely:

(a) Whethera beneficiary of the immunity granted by section 308 could waive

same? 90

86

Evidence Act 2011 as amended.

87 Alamieseigha v Yeiwa [2000]7 NWLR (Pt.767)581.

88 Ibid.

89 [2000]7 NWLR (Pt.767)581.

90 This has been answered above.

32

(b) What proper order a court should make upon findingthat a case pending

before it amounted to infringement of the provision of the section?

The facts of Tinubu v I.M.B briefly is that the respondent by a writ of summons instituted

on 26th

November 1992 claimed 2.5 Million Naira from the appellant inter alia being the

credit facility he guaranteed in favour of the 1st defendant. During the appeal at the Court

of Appeal, the appellant was sworn in as the Governor of Lagos State on 29th

March

1999.The respondent applied for an adjournment of the appeal sine die until such time as

the appellant would cease to hold office as governor of Lagos State, having regard to

Section 308. The appellant opposed the adjournment on the ground that Section 308 does

not prevent him from prosecuting his appeal or instituting the action. The Court of

Appeal granted the respondent’s application and adjourned the appeal sine die until the

appellant vacate the office of governor of Lagos state.

The Supreme Court held on the order of sine die per Kutigi J.S.C said91

:

Following Rotimi&2ors v Macgregor, I have no hesitation in coming to the

conclusion that the Courtof Appeal rightly declined to entertain the appellant’s

appeal pending before it, thus, giving effect to the mandatory provision section

308 of the Constitution above. But the Court of Appeal was wrong when it

proceeded to adjourn the appeal sine die instead of striking it out. The appeal

certainly cannot be continued during the appellant period in office. A proper

order striking out the appeal will therefore have to be substituted for that of an

adjournment.

All these exemptions are enjoyed by the Chief executives during their tenure of office.

Thus, in Empton v Smith,92

the Court held that:

91

[2000]7 NWLR (Pt.767)581.1045, Para G-H.

92 (1966)1 Q.B 426.

33

Immunity granted terminates when the person who enjoy the immunity ceases to

hold the office bywhich he enjoys immunity, thus the constitutional provision

concerned could be classified as proceduralmaking the immunity merely

inchoate or in suspense during the beneficiary’s incumbency in office.

In Dalhatu v Muazu93

, the appellant was erstwhile sultan of Sokoto. He sued the

respondent who at the time of his disposition from office was the military administrator

of Sokoto State(occupying the office, and performing the functions, of the governor of

the state).This suit was to recover his brief case which he sent for at the time of his

deposition but which never got to him. The Commissioner of Police, Sokoto State in his

report had said only the respondent knew the whereabouts of the brief case. The

respondent filed a preliminary objection to the action basically on the ground that as the

Military administrator of Sokoto State at the relevant time, he acted in an official capacity

and therefore he could not be sued in his personal capacity as in the instant case on the

basis of Section 267 of the 1979 Constitution. The trial court ruled that the action was

instituted against the respondent in his personal capacity for acts done in his official

capacity and as such the Court had no jurisdiction to entertain the matter based on

Section 267(2) of the 1979 Constitution. On appeal, the Court of Appeal, considered the

affidavit in support of the preliminary objection, wherein, the respondent swore that he

acted in his official capacity. The respondents argued that since the action was taken in an

official capacity, the appellant could not sue him personally, rather he could sue the

Governor of Sokoto State. The Court of Appeal tacitly agreed that the respondent’s act in

this instance was an official act. Nevertheless, while noting the claim of the respondent

93

[2002]16 NWLR(Pt.793)319

34

that the writ was issued after he ceased to hold office,the Court of Appeal held that

section 267 clearly did not protect official acts or omissions, rather the section protect

acts done in personal capacity and that protection is only when the person is in office.

The respondent was therefore held liable in damages for the missing brief case.

2.2.1: EXCEPTIONS TO THE IMMUNITY CLAUSE

It seems that the immunity clause absolutely protect the people whom the section applies

by virtue of Section 308(1) of the Constitution. However there are some exceptions.

The immunity clause will not apply to the President, Vice President, Governors and

deputy Governors in their official capacities, or to civil or criminal proceedings in which

any of these people is a nominal party94

. In Abacha V Fawehinmi,95

the issue before the

Supreme Court was whether the 1st respondent as Head of State of Nigeria, was immune.

The Court of Appeal held on the immunity under Section 267 of the 1979 Constitution,

that subsection (2) of the section is self explanatory and that the immunity provided for

did not apply to the person in question in his official capacity or to a civil or criminal

proceedings in which such a person is a nominal party.

94

Section 308 (2) of the 1999 Constitution of the Federal Republic of Nigeria.

95 (2000) 77, L.R.C.N 1258.

35

In Shugaba Abdulrahman V Federal Ministry of Internal Affairs &Ors96

, the Court held

that the President could be sued in his official capacity since the immunity enjoyed by the

crown was quite different from the immunity applicable in Nigeria as provided in Section

267 of the 1979 Constitution. In suing the executive in official capacity, it is necessary

that the office or title be named in the suit and not the actual name of the person in

office.97

Also, the word ‘nominal’ has been defined as that which has existence in name but not

actual or substantial existence.98

‘Nominal parties’ are therefore those who joined as

parties or defendants merely because the technical rules of pleading require their presence

in the record.99

If the executive in person of President, Governors and their deputies is

merely a party to the suit in name only without the requirement that he appear in Court

or without being subpoenaed to give evidence, such proceeding can go on without being

contrary to the provision of Section 308(2) of the Constitution.100

In President of Nigeria v the Governor of Kano state,101

the Federal Court of Appeal was

faced with a number of issues among which was whether an action can be brought

against the President of Nigeria in relation to exercise of his office in any capacity other

96

(1981)1 N.C.L.R 25.

97 EbunOmoregie v Colonel Samuel Ogbemuda [1973]3 U.I.L.R(Pt.1)15.

98 Park Amusement co v Maccaugha.DCPA14F2D 553,556.

99 Yellow cab &Gaggage co v Smith 30, SW 2D 697,702.

100 Anya v Borno State Government(198)5 N.C.L.R 225.

101 (1982)3 N.C.L.R.189.

36

than as for and on behalf of the government of the Federal Republic of Nigeria and

whether the government of a State can bring an action in his official capacity other than

representing his state. The Court reassured that since an action cannot be maintained in

any capacity other than an official one, both parties were acting in their official capacity

as personal representatives. It was also held that the action having been brought by the

Governor of Kano State as Chief executive of Kano becomes one by the government of

Kano State against the President of the federation.It is the substance of an action which

determines whether a Governor is sued in his personal or official capacity not mere use of

name. In Samuel I. Igbe v His Excellency, Professor Ambrose Alli,102

the plaintiff brought

an application to amend the writ of summons and statement of claim in a substantive suit

pending before the High Court ‘so as to obviate any possible misconception that the

Governor was sued in his personal capacity’. While granting the application, Uwaifo, J.

held:

It is the substance of the action which determines whether a Governor is sued in

hispersonal or official capacity, not the mere use of name.

Another exception to the immunity clause is in the area of Election Petition cases. It has

been held103

that election petitions cases are sui generis and can neither be classified as

civil or criminal proceedings. It is for this reason that election cases constitutes an

102

(1981)1 N.C.L.R 129.

103 Amaechi v INEC [2008] All F.W.L.R. (Pt.407).

37

exception and thus, a Governor, President or their deputies can be sued on the validity of

their election results.

In Chief Collins Obi v Chief Samuel Mbakwe,104

the Court held that:

Election petitions are special proceedings completely divorced and separated

from civilproceedings within the context of section 267 of the 1979

Constitution. Consequently, aGovernor of a state is not immune by any reason

of section 267 of the Constitution from legal proceedings against him in respect

of an election petition.

One of the most often cited case is that ofAlliance for Democracy v Peter Ayodele

Fayose.105

In this case, the appellant participated in the election of 12th

day of April 2003.

After the elections, the respondent was elected as winner, the appellant filed a petition in

the House of Assembly Tribunal claiming that the 1st respondent was not qualified to

contest for the election, during the trial, the appellant issued a subpoena duce tecum on

the elected governor to appear before a tribunal with notice to produce his credentials and

international passport. Former Governor Fayose (1st respondent)filed a notice of

preliminary objection on grounds that he was covered by immunity and so the tribunal

lacks jurisdiction and was incompetent.The Court of Appeal in rejecting such submission

held that immunity does not cover election petitions. In giving rationale for this decision,

Mikailu J.C.A106

said:

104

(1984)15 NSCC 127, Unongo v Aku (1985)6 N.C.L.R 266.

105 [2002]All.F.W.L.R(Pt.218)74.

106 Ibid.962 Para A-E.

38

In an election petitionwhere the status of the governoris being challenged as in

this, then the said immunity is alsoquestioned. He has no immunity against

being sued and consequently he cannot be immune from beingsubpoenaed.

2.3.0: CONCLUSION

From the analysis of Section 308 of the Constitution, it is now settled that the President,

Governors and their deputies enjoy absolute immunity from civil or criminal proceedings

in their personal capacity.Nothing which adds to the section or subtracts from it will be

entertained by the Court. In Godwin Daboh v National Party of Nigeria107

where plaintiff

sought for inter alia, declaration that Section 267 of the 1979 Constitution of Nigeria

which grants immunity from criminal and civil proceedings and court process to very

corrupt Nigerians holding public office like Mr. Aku, former Bendel State Governor is

unjust, immoral and it is in conflict with the other provision in the same Constitution

aimed at the practice and concept of public accountability by public officers in Nigeria.

The Court held that:

It is the duty of the Court to interpretthe Constitution and not amend it. The power to

amend the Constitutionis vested under the same Constitution in National Assembly with

the various Houses of Assembly in Nigeria. The Provision (section 267) clearly meant

that no relief might be sought or granted against Mr. Aper Aku while he remained the

governor of Benue state.

107

(19845) N.C.L.R 523.

39

CHAPTER THREE

COMPARATIVE ANALYSIS OF THE EXECUTIVE IMMUNITY IN

NIGERIAAND OTHER JURISDICTION

3.0.0: INTRODUCTION

This chapter seeks to examine ways through which the immunity clause has been abused

by Nigerian chief executives. An examination of the departure from the rationale of the

immunity clause in Nigeria by these Chief executives will help in appreciating the

position which the immunity clause stands. Also,a comparative study will be made of

what is happening in Nigeria with some other jurisdictions of the world.

3.1.0: IMMUNITY CLAUSE AND THE NIGERIAN FACTOR

The immunity clause as stated earlier is meant to protect the President, Governors and

their deputies from vexatious litigation, so that they can concentrate on the State affairs

and carry out their duties efficiently, thus, protecting the dignity of the office. This is the

ideal situation in a ‘civilized’ country for example developed countries of the world like

United State of America where we have a well organized political system and leaders.

The rationale for this immunity clause makes it desirable in governance.

However, the Nigerian experience of the immunity clause has been horrendous, traumatic

and reflective of social anomaly in the sense of misgovernance and underdevelopment.

40

The immunity clause has overwhelmingly continued to serve as conduit pipes of

siphoning the nation’s wealth by the leaders without any fear of litigation.

Igbinedon Asabor108

implicitly underscores the above position in his remark that the use

of protective shield of constitutional immunity as a legitimate instrument and defense of

corruption and money laundering by crooks masquerading as public officials in the

dubious game of theft and unlawful transfer of common wealth into personal purse has

gained a proportion so alarming and frequency so outrageous that the very concept of

governance in Nigeria needs a critical characterization. In reality, the clause has merely

created a class that is above the law, a class that perpetuates evil in the office through

corrupt practices and bad leadership consequently leading to the abuse of the clause.

A cursory look at Nigeria situation reveals that majority of the leaders who enjoys the

immunity have committed several criminal offences and subversively abused the spirit of

the clause. Whether in the South west, South south, South east, North central, North

West, North east geographical zones of the country, various cases of the abuse of

immunity clause abound. Examining some of these cases will depict the particular

situation in Nigeria.

Diepreye Alamiesigha of Bayelsa State is one of the examples. On Thursday, 15

September 2005 following a petition addressed to the Economic and Financial Crimes

108

Asabor I. ‘Immunity in International Law’, The Vanguard Newspaper (Nigeria 2

October 2002)17.

41

Commission(EFCC) by some citizens of Bayelsa state against the Governor, revealing

that some members of his family had looted from the Bayelsa State treasury a sum of

1,043,655.79 dollars; 173,365.41 pounds and 556,455,893.34 Naira.109

Alamiesigha was

arrested and was undergoing trial in London before he fled(dressed like a woman)back to

Nigeria. The implication of this is that since Alamiesigha was in Nigeria, he could not be

tried for money laundering and corrupt practices before the Nigerian courts because of

Section 308 of the Constitution which oust the jurisdiction of the Constitution.

Alamiesigha knew he could not be tried in Nigeria because of the immunity he enjoyed

as a Governor. It however took the intervention of the Legislature by impeaching

Alamiesigha so as to remove the immunity cloak that protected him from trial in Nigeria

and he was subsequently arraigned in Court after impeachment. This is a clear case of the

abuse of immunity in Nigeria. It may be argued that immunity clause is powerful to the

extent of protecting a Governor who is outside Nigeria, but I will respectfully submit that

this is not the position of law.The immunity clause does not extend outside Nigerian

shores.110

109

This Day Newspaper(Nigeria 16 October 2005)1.

110 This view is also shared by Emeritus Professor David Adedayo Ijalaiye, The Guardian,(Nigeria

October 11 2005)9, as against Professor Itsejuwa Sagay’s view that immunity clause extends

beyond Nigerian Shores. See Professor Sagay: Governor Alamieyeseigha and Sovereign

Immunity,<http://nm.onlinenigeria.com/templates/?a=5638> accessed on 16 March 2012.

42

Another instance is that of Joshua Chibi Dariye of Plateau State who was arrested in

London in 2004 for money laundering charges. 20 million Naira was found on him, while

over 2 million Pounds was discovered in his bank account. In furtherance to this, a

Federal High Court on the charges of alleged money laundering and illegal financial

deals, presided over by Justice Abdullahi Liman initially granted a Summons against

Dariye, but after considering the immunity clause, the Court on 16 December 2004 set

aside the earlier order of summons. It follows that Dariye enjoyed immunity in Nigeria

even if such recognition was not given in London.111

Another instance of the abuse is the case of former Deputy Governor of Osun State Chief

Iyiola Omisoore who was strongly alleged to be involved in the death of former Minister

of Justice, late Chief Bola Ige could not be arrested based on the immunity he enjoys as a

Deputy Governor. No action could be taken until he was removed from office and his

tenure abruptly brought to an end under the provision of section 188 of the Constitution.

Furthermore, the case of James Onanefe Ibori drives home this point. Ibori was the

Governor of Delta state from 1999-2007. His salary was less than 25,000 Dollars a year.

The Former Governor of oil rich Delta State was accused of stealing funds worth Two

Hundred and Ninety million Pounds by Economic and Financial Crimes Commission. In

fact, in 2007, a United Kingdom Court froze assets belonging to Ibori worth $35m. Ibori

could not be tried for all these allegations while he was in office because of the immunity

111

News Magazine(Nigeria 16 October 2006)50.

43

clause he enjoyed, and even when he was tried in December 2007, he was cleared by the

Federal High Court sitting in Asaba of 170 charges connected to alleged money

laundering because of lack of evidence112

. It however took the intervention of the United

Kingdom Court in May 2010 to arrest him in Dubai and extradite him to the United

Kingdom to answer for the alleged corruption charges. Recently, to make mockery of our

judicial system, Ibori was sentenced to 13 years imprisonment in the United

kingdomCourt after pleading guilty to charges of financial misappropriation.113

It is not only the cases of Ibori, Alamiesigha, and Joshua Dariye that the immunity clause

has been abused. Governors and their deputies had always faced charges after leaving

office. For example Former President Olusegun Obasanjo was accused to have

misappropriated Petroleum Training and Development Funds (PTDF) after leaving

office, Peter Odili of Rivers State was also accused of misappropriating 520 billion Naira

power point project and the looting of the treasury, Peter Ayodele Fayose who was

alleged to have established a poultry business in the name of his family members through

the public funds he had access to.114

Lucky Igbinedion of Edo State was also charged for

looting of Edo treasury. He was charged with more than 150 counts of embezzlement. He

was also accused of money laundering and stealing more than 25 million dollars during

his eight years tenure in office.

112

Federal Republic of Nigeria v James Ibori (Unreported: Suit No. FCH/ASB/IC/09).

113 The Nation Newspaper(Nigeria 17 April 2012)1.

114 This Day Newspaper(Nigeria 17 October 2006)18.

44

It is interesting to note that former Governor of Lagos state, Asiwaju Bola Ahmed Tinubu

was charged before the Code of Conduct Tribunal with the offence of maintaining

foreign account while in office(1999-2007).It was alleged that the former Governor has

ten foreign account with the balance of £21,000, a joint account with his wife with the

balance of £10,118.115

It well remains to be seen if Bola Tinubu will be convicted of this

offence but the point to make here is that the immunity clause under Section 308 has

enabled Nigerian chief executives and their deputies to loot public funds and desecrate on

the dignity of the office sought to be protected.

Recently116

former governor Danjuma Goje of Gombe State was declared wanted by the

Economic and Financial Crimes Commission over the alleged mismanagement and

diversion of over 52 Billion Naira belonging to the State. Goje suspiciously obtained

loans amountingto 37.9 billion Naira from 27 banks. The Commission declared him

wanted when he failed to submit himself to the Commission.

Also,the Economic and Financial Crimes Commission arrested former Governors:

Gbenga Daniel of Ogun State(2003-2011); Christopher Alao Akala of Oyo state(2007-

2011)and Alhaji Aliu Akwe Doma of Nassarawa State(2007-2011)117

for an alleged

diversion and misappropriation of N58.5billion(Daniel); N25 billion (AlaoAkala) ;and

Doma (N18 billion) totaling 101 billion Naira. Gbenga Daniel was alleged to have

115

Punch Newspaper, (Nigeria 28 September 2011)2.

116 Punch Newspaper, (Nigeria 8 October 2011)1.

117 Punch Newspaper,(Nigeria 6 October 2011)4.

45

diverted about 12 billion Naira revenue in Ogun state Bureau of Lands and Survey, non

remittance of 1 billion Naira deducted from Ogun state worker’s salaries, fraudulent and

illegal payment of 1 billion Naira purportedly as counterpart funding for water projects,

illegal debt servicing to the tune of 5.2 billion Naira as against an appropriation of 350

million for the same purpose in 2009. This is just to mention a few allegations against

these former governors. It shows the extent to which the immunity clause is abused. All

these crimes cannot be brought to book no matter how grievous the crime can be.

Thus,political office holders in Nigeria see Section 308 as a tool for corruption.

3.2.0: COMPARATIVE ANALYSIS OF THE EXECUTIVE IMMUNITY IN

NIGERIA AND OTHER JURISDICTIONS

The attitude of various nations of the world with regards to immunity has gained a

considerate popularity. Having made recourse to Nigeria,it is necessary to check it with

some other jurisdiction.

An example is that of Italian Minister Silvio Berlusconi. He was sworn in as prime

minister in June 2001 for the second time. His first seven months in the second tenure

was dissolved by a combination of corruption accusations, civil unrest and political

differences with his allies. Talk of the charges led to a commencement of his trial.

However, the trial was initially halted when the Italian parliament largely controlled by

46

Berlusconi’sparty men approved a contentious legislation118

which allowed the Premier

to refuse to attend Court on the basis that he had official duties to attend to, thereby

giving him immunity. It however took the ruling of Italian constitutional court to thwart

the escapist contrivance of Berlusconi as the immunity law was thrown out.119

Furthermore, in Philippines, immunity clause protection was rejected in order to expose

corruption. The former President of Philippines, Joseph Ejericito Estrada on 4th

April

2001 was reported120

that the Office of the Ombudsman which handles criminal charges

against incumbent and former State officials had finalized preparations to file seven

criminal charges against Estrada before the Sandiganbayan; the country anti graft agency.

Among the charges are graft, bribery, misuse of public funds, unexplained wealth, abuse

of authority and the very interesting charge of economic plundering; a non billable

offence punishable by death. On 25th

April 2001, Estrada was arrested after a warrant to

that effect was issued.121

The former President appealed against the legitimacy of the

arrest. The country’sSupreme Court, in a unanimous ruling by 13 Justices rejected this

118

Legitimate Impediment Law no. 51, of 7 April

2010,<http://jurist.org/paperchase/20111/01/italy-weakens-berlusconi-backed-law-

temporarily-providing-immunity-for-public-officials.php> accessed on 2 May 2012.

119 Wendy Z, ‘Italy: Constitutional Court strikes down parts of immunity l

aw’<www.telegraph.co.uk/news,august>accessed on 30June 2011.

120 Punch Newspaper,(Nigeria 25 April 2001)17.

121 Guardian Newspaper (Nigeria 29 April 2001)6.

47

appeal, denying his immunity from criminal charges and paving the way for his arrest

and subsequent trial. For Ejericito Estrada, there are no barriers to justice.122

3.2.1: INDIA

Article 361 of the Indian constitution provides for certain privileges among which is that:

no civil proceedings in which relief is claimed against the President(or a governor)shall be

instituted during his term of office in a court in respect of any act done or purportedto be done by

him in his personal capacity whether before or after he entered upon his office until:

(i) A notice in writing has been delivered to the president or(governor);

(ii) Two months have elapsed after the service of such notice;

(iii) The notice states the nature of proceedings and description of the party taking the proceedings and

the relief claimed

Commenting on these provisions, Dr. Shir Dayal,123

opines:

This provision implies that as far as acts done or purported to be done by the

resident(or governor)in his official capacity are concerned, no civil proceedings

can be brought as there is an absolute bar against it under article 36

He also enumerated that the other privileges provided by article 361 of the Indian

Constitution are as follows that:

(1) The President(or the governor of a state)shall not be answerable to any court

for the exercise and performance of the powers and duties of his office or for any

act done or purported to be done by him in the exercise and performance of those powersand

duties. The only exception to this rule is that only the conduct of the president may be brought

under review by any court, tribunal or body appointed or designated by either house of parliament

for the investigation of a charge in impeachment proceedings.

Article 361(2)provides that no criminal proceedings whatsoever shall be instituted or continued

against the president or the governor of a state in any court during his term of office, while article

122

See also the Case of Soliven v Makaisar,(1988) 167 SCRA 393.

123 Dayal S, Constitutional Law of India, Allahabad Law Agency (Law Published; Allahabad, India,

1981) 235.

48

361(3)provides that no process for the arrest or imprisonment of the president or the governor of a

state shall issue from any court during his term of office.

Dr Shir Dayal comments further:

The protection afforded the President is not only in respect of official acts but

also in respect of acts purported to be done in the exercise of performance of the

powersand duties of his office. Thus, if the act is ostensibly to the exercise of the

power given under the Constitution and it is not established that the act is done

honestly or in bad faith or in other words out of improper motives, the immunity

attaches tothe exercise of the power.Even if the act done is in contravention of

the Constitutionthe protection would apply if the act was professed to be under

the constitution.

The situation in India is predicated on the absolute protection doctrine like what is

applicable in Nigerian Constitution. The only likely difference is the power of instituting

civil proceeding in respect of any act done or purported to be done by him in his personal

capacity whether before or after he assumed office but not until the expiration of two

months next after which notice in writing must have been delivered to the

President(Governor)all particulars of action. Under Section 308 of the 1999 Constitution,

such personal proceeding cannot be instituted during his tenure of office and when

instituted before the assumption of office, it must abate temporarilyuntil cessation of

office.124

124

Olurotimivs Macgregor (1974)11 SC 133.

49

3.2.2: CYPRUS

In Cyprus, the 1960 Constitution125

provides restricted immunity for the President and

Vice President. Article 45(2) provides that the President or the Vice President may be

prosecuted for High Treason on acharge preferred by the Attorney General and deputy

Attorney General before the High Court. Also article 45(3)provides that the President or

Vice President may be prosecuted for an offence involving dishonesty or moral turpitude.

Apart from these three offences mentioned above, the Presidentor Vice President shall

not be made liable to prosecution for any offence committed by him in execution of his

functions but he may be prosecuted for any offence committed during his term of office

after he ceases to hold office.126

The immunity granted under the Cyprus Constitution is

radically different from the Nigerian provision. While immunity under the Cyprus

Constitution is qualified, Section 308 of the Nigerian Constitution provides an absolute

immunity in regards to civil or criminal litigation.

3.2.3: JAMAICA

Lloyd G. Barnett127

says that the exact legal position of Governor-General in an

independent Commonwealth nation is not clear. In Jamaica, the Governor General is

125

<http://www.kypros.org/constitution> accessed on 4 October 2011.

126 Article 45(5) of the Cyprus Constitution 1960.

127 Barnnett L.G ‘The Constitutional Law of Jamaica’ (Oxford University Press, London 1977)

176-177.

50

described as the representative of the Queen. Certain judicial decision suggested that

while the Governor General would be liable in respect of his personal acts, he would not

be liable in the case of official acts.

In the case of Musgrave v Pullid,o128

where an action for trespass was brought against

the Captain-General and Governor–in–Chief of the Island of Jamaica for seizing and

detaining a schooner of which the plaintiff was a charter, and which had allegedly put

into the port of Kingston in distress and for repairs. In an appeal from the Supreme Court

in Jamaica, the House of Lords, affirming the decision of the Court gave judgment to the

effect that a Governor of a colony possesses no general sovereign powers(his authority

being derived from his commission and limited to powers thereby expressly or impliedly

entrusted to him)and is only protected from liability for acts done within the limits of the

power conferred on him and in the service of the crown, also that there is no personal

privilege in regards to the office of Governor of Jamaica which exempts him from being

sued in the Courts of the Island. Hence, the Governor would be personally liable for acts

falling outside the scope of his commission.

Also, in Hochoy v N.U.G.E & others129

Trinidad Court of Appeal held that the Courts of

the countries are the Queen’s Courts and not that of her representative (the Governor

General) and since her immunity from suit was essentially personal, it could not be

128

(1879)5 app.CAS.102.

129 (1964)7 W.J.R. 174.

51

claimed by her representative.Thus, the Governor General is not immune from suit of

Courts but is only immune from liability in respect of official acts.

It can be said therefore that in Nigeria, while the President and Governors are not liable

to both personal and official acts (whether criminal or civil acts) while in office, in

Jamaica, the Governor General is not liable for his official acts but to his personal acts

even while in office.

3.2.4: UNITED STATE OF AMERICA

The United State is often cited in support by the advocates of the removal of immunity,

but the precedent provides only a partial support.Under the United State Constitution

from which Nigerian Constitution is modeled along, the President only enjoys immunity

from criminal prosecution and not civil suit. According to Nwabueze,130

as regards arrest

and prosecution before a court or tribunal for a criminal offence, the president of America

in fact enjoys immunity while in office. No sitting American president has ever been

arrested or prosecuted. He went on to say that President Richard Nixon, often cited as

example was not arrested or prosecuted for a criminal offence in connection with the

Watergate Bugging. He was only investigated by a congressional team of lawyers for

purposes of impeachment, which was however forestalled by his resignation on 9th

August, 1974. The question of a possible prosecution after his resignation was forestalled

130

The Guardian Newspaper,(Nigeria 3 June 2004)4.

52

by the pardon granted to him by his successor, President Ford who was before the

resignation his vice president.

The prosecution in the Watergate Bugging Case was not of President Nixon himself but

of some of his aides implicated in it. The issue in United State v Nixon131

, a civil suit was

whether the President was entitled to claim immunity or privilege for the non disclosure

of his confidential conversations with his aides including some of those being prosecuted

for the Watergate bugging. The president was resisting a Subpoena by a special

prosecutor for the production of tape recording of certain of his conversation with some

of the accused persons in the prosecution. His argument was that in the context of an

executive authority of the country, his official dealings with his subordinate executive

officers in the exercise of his executive authority are, by and large not justiciable. Such

officers act in his name and by his authority and all actions within the executive branch

are united in the single authority and personality of the President.

In that case the United State Supreme Court held inter alia that neither the doctrine of

separation of powers, nor the need for confidentiality of high level communications,

without more, can sustain an absolute, unqualified presidential privilege of immunity

from judicial process under all circumstances. The Court opined that the impediment an

absolute, unqualified privilege would place in way of the primary constitutional duty of

131

(1973)4 I L. ED 2D 1039.

53

the judicial branch to do justice in criminal prosecution would plainly conflict with the

function of the Courts under Article 3 of the American Constitution.

However, whilst a sitting President of the United State enjoys immunity from arrest and

prosecution before a court or tribunal, an alternative procedure in the form of the Office

of an Independent Counsel (OIC) is provided by law- the Independent Counsel Act132

with the power to investigate any criminal offence or illegality alleged to have been

committed by the President and report to Congress for possible impeachment

proceedings. Underthe said act, the independent counsel is selected by a panel of three

Federal Judges appointed by the Chief Justice of the United State Supreme Court. The

investigation of PresidentClinton’s affairs with Monica Lewinsky was made by an

independent counsel.133

As stated earlier, as regards civil suit, the law in the United State gives an incumbent

President or Governor no immunity whatsoever. Chief Justice Bartley observed in

granting a mandamus against a State Governor134

:

Under our system of government, no officer is placed above the restraining

authority, which istruly said to be universal in its behest, all paying it homage,

the least as feeding its care, and thegreatest as not being exempt from its power.

132

Nwabueze B, ‘Office of the President and the Immunity Attached to its Holder’ The

Guardian Newspaper,(Nigeria 3 June 2004)9.

133 Kenneth Starr.

134 The Guardian Newspaper, (Nigeria, 3 June 2004)16.

54

These observations, it was argued, should apply with equal force to the President of the

United States. The argument was accepted by Chief Justice John Marshal when he

sustained an application for a Subpoena duce tecum against President Jefferson.

Rejecting the President’s contention that he could notbe drawn from the discharge of his

duties at the seat of government and made to attend the Court sitting at Richmond, the

Chief Justice drew a distinction between the President and King of England, and held that

the application was properly maintainable against the President, and that all officers in

the United State were subordinate to the law and must obey its mandate.

In Clinton v Jones,135

the Court held unanimously by the nineSupreme Court Justices that

the president’s privilege was limited to criminal suits and did not extend to civil ones and

that the case should go forward. Also in United State v Ford,136

President Ford complied

with an order to give a disposition in a criminal trial. President Bill Clinton was also

called twice to give videotaped testimony in criminal proceedings.137

Thus President

Clinton’s wife; Hillary Clinton wrote138

:

It is a distressing revelation of the incessant harassment facing a president who

is left unprotected against the threat of civil suits by money and publicity

seekers instigated in most cases by politicalenemies.

135

No 95(1853) CU.S.S.C.

136 405 (1975)F.SUPP 578 CE.D.CAL.

137 United State v MC Dougal (1996) 934.supp296 E.D. United State v Branscum, NO

LRP.CR% 96-49 E.D. ark, June 7 1996.

138 Hillary Clinton, Living History (2003) quoted by Professor Nwabueze in the Guardian

Newspaper,(Nigeria 13 June 2004)23.

55

What operates in the United State is radically different from the Nigerian situation. In

Nigeria, though the chief executives enjoy immunity from both civil and criminal

offences, there is nothing like an Office of the Independent Counsel (OIC) to investigate

their excesses and report to the National Assembly for possible impeachment. The

establishment of such body will help to curb executive restlessness.

3.2.5: UGANDA AND ERITREA

These two countries practice what is similar to Nigerian situation in respect of the

immunity clause. Although the provisions are couched differently, they are very

similar.In Uganda, the immunity clause can be found in Chapter seven, section 98(4) of

the 1995 Uganda’s Constitution. It states:

The president is not liable to proceedings as long as he is in the office. However,

civil or criminalproceedings may be instituted against him the moment he ceases

to be the President, in respect of anything done or omitted to be done in his or

her personal capacity before or during his term ofoffice and there is no

limitation in respect of any such proceeding shall run during the pendency of his

presidency.

Article 43(1) and (2) of the Eritrea’s 1997 Constitution provides:

The occupant of the office of the president cannot be sued in any civil

proceedings, save where such proceedings concern an act done in his official

capacity as president, in which case, the state may be sued.He cannot be charged

with any criminal offence, unless he is impeached for violation of the

constitution, law or for conduct amounting to bringing the authority and honour

of the office of the president into ridicule,contempt and disrepute. And upon his

tenure, no court may entertain any action against him in any civilProceeding in

respect of any act done in his official capacity as president.

56

Thus, it can be seen that these provisions are very similar to section 308 of the 1999

Constitution.

3.2.6: TANZANIA

Tanzania takes a different position in regards immunity for chief executives. In Tanzania,

the former President Julius Nyerere according to Nwabueze139

devised an arrangement

that seems nicely designed to accommodate the two conflicting objects of protecting the

rights of individuals against an incumbent president as well as the dignity and integrity of

the nation’s highest office.Unlike in Nigeria where the Presidents and Governors are

immune from criminal and civil actions, under the Constitutions of 1962 and 1965 of

Tanzania, Section 9 of 1962 and Section 11 of 1965 provides that the President is

amenable to civil(though understandably not criminal)action in his personal capacity.

However, a different procedure designed to protect the dignity and integrity of the office

is instituted for an action against the President. This requires that at least 30 days written

notice of intention to bring an action, accompanied by a plaint which gives information

about the nature of the proceedings, the cause of action, the name, description and place

of residence of the plaintiff should be served not on the president personally but on the

permanent secretary, principal or private secretary to the president or sent by prepaid

registered post to the Permanent Secretary at the State House.

139

Nwabueze B.O, Presidentialism in Commonwealth Africa,(Hurst & Co. London 1977)121.

57

Except by or under the direction of these officials, no legal process can be served or

executedwithin the State House or while he is resident therein, other official residences of

the president, but if a Court so request, the officials shall render all reasonable and

necessary assistance to enable service or execution to be effected. The action has to be

instituted in the High Court and not in any other Court. Assuming the plaintiff to have

been successful, the only form of relief that may awarded at the conclusion of the

proceeding is a declaration, no other kind of order, judgment, decree or relief can be

given against the president while he is in office, though should he fail to satisfy the

Court’s declaration, then within 90 days of his ceasing to be president, the plaintiff may

apply to have the declaration converted to a positive relief and the Court shall act

accordingly.

Finally, no bar is imposed upon the right to apply to the Court for process to require or

compel the president to attend or appear personally in court or to produce any person or

thing, but upon such application being made, the Court is not in fact to issue process but

should merely notify the president.

All these conditions that must be met before the immunity clause is removed which

Tanzania operates is desirable but they are not in existence in Nigeria. In fact, the

Nigerian President or a Governor cannot be compelled to appear before a court or

tribunal as we have in Tanzania.

58

3.2.6: ZAMBIA AND GHANA

Coming to Zambia and Ghana, not only is the President immune from legal process but

he is also protected by law from insult or abuse beyond the protection afforded by the

ordinary law of libel and sedition.140

Such protection was conferred by an amendment to

the Criminal Code in Ghana and Zambia in 1961 and 1965 respectively.141

The statute

made it an offence to publish by writing, word of mouth or in any other manner any

defamatory or insulting matter concerning the president with intent to bring him to

hatred, ridicule or contempt. A Ghanaian Minister of Justice, Mr Ofori Attah had

defended the provision on the ground that the ‘Head of State is a sacred person,

irrespective of the party which he belongs’. As regards this assertion, Nwabueze wrote:

The exercise of executive power necessarily invites criticism. One should not

accept theoffice and refuse the price. That would be like eating one’s cake and

having it. Moreoveran executive president is not just the chief functionary of the

government, he is the government itself. And to ban criticism of him is unduly

to inhibit criticism of government142

Though, the law in Nigeria does not protect the President or Governor from insult or

abuse beyond that offered by the law of libel and sedition like Ghana and Tanzania

respectively, this shows the extent to which law can be made to protect a chief executive

from hindrances in his work of governance can vary from one country to another.

140

Ibid.121- 122.

141 Section 183(9) of the Ghanaian Statute 1961and Section 69 of the Zambian statute 1965.

142 Nwabueze B, ‘Office of the President and the Immunity Attached to its Holder’ the

Guardian Newspaper,(Nigeria 3 June 2004)9.

59

3.3.0: CONCLUSION

Having considered how immunity clause is treated in Nigeria and some other

jurisdictions of the world, we are now put in an objective position to judge whether

immunity clause is a curse or a blessing in Nigerian governance,considering the fact that

the degree of immunity varies from one country to the other.

60

CHAPTER FOUR

IMMUNITY CLAUSE: A CURSE OR A BLESSING

4.0.0: INTRODUCTION

The utility of the executive immunity contained in the Nigerian Constitution was called

to question during the tenure of Nuhu Ribadu as chairman of the Economic and Financial

Crimes Commission (EFCC) when he was reported to have said he had concluded

investigations on about 24 serving Governors who would be arrested on the expiration of

their term in office on the 28th

of May, 2007 on alleged economic and financial crimes.

This opened a torrent of attacks on the immunity clause in the 1999 Constitution with

some arguments to the contrary however.

There have been arguments by various schools of thoughts or individuals on the status of

immunity clause in governance. While some agree that immunity clause is a laudable

provision in the 1999 Constitution, thereby bringing a blessing to the administration of

the executive branch, others contend that it is not a good provision and so it is a curse to

the smooth administration by the executive branch in Nigeria143

.This chapter seeks to

examine the arguments for and against the retention of immunity. The reasons by both

143

. Vitus N.O, ‘Immunity clause in focus’ Nigerian Compass’, (Nigeria, February 12 March to 26

March 2009)25-31.

61

sides for their argument will also be examined. Akin to this, various statements and views

of eminent Nigerians both supporting and opposing the immunity clause will be quoted.

For the purpose of convenience, we will classify the school of thought that advocates for

the retention of the retention of immunity clause the Positivist Formalist School. The

school that advocates for the removal of the immunity will be called the Moral

Substantive School.

4.1.1.0: THE POSITIVIST FORMALIST SCHOOL

The positivist formalist school argues that the formal enactment of any statutes regardless

of its moral content determines its validity and commands the obedience of the people

subject to it.144

In the case of constitutional immunity, the School argues that any public

officer with reference to which the law applies is validly and unquestionably protected by

the letter of section 308 of the 1999 Constitution. The School asserts that we must

understand law for what it really is in terms of its practical function in society.145

In

advancing its case on the constitutional immunity debate, the proponents argue that the

reason for the insertion of the clause is the need for the holders of certain political office

144

Balogun O, ‘African leaders and Constitutional Immunity’: The Moral Question. (Paper presented

at the interdiscipilanary Conference on ‘Ethics and Africa’, co sponsored by Jean Blumenfeld

Center for Ethics, Georgia State University and philosophy department, University of Cape Town,

South Africa, 29-31 May 2006)48.

145 Ogunleye A.M, ‘Immunity clause is inevitable in Nigerian Constitution’, Guardian

Newspaper, (Nigeria25 March 2006) 99 & 101.

62

not to be unnecessarily encumbered by a spate of litigation. If the clause is absent, there

will be an unchecked flood of Court process which will definitely lead to the capsizing of

the boat of governance.146

For instance, Beko Ransome Kuti, the foremost human right crusader argues that absence

of immunity clause in the Constitution would be abused by political detractors of the

concerned public holder. Beko opines:147

‘I do not know anywhere in the world where immunity is

not provided for a serving President and his deputy’.

In like manner, Goddy Uwazurike148

posits that the immunity clause should be left to

remain as it serves the purpose of starving off possible indignities that may be thrown the

way of the affected public officers. He posits further that every dignity must be accorded

to these offices since they hold they hold office as trustees of the people, only immunity

clause can ensure that dignity. In view of the disturbing Nigerian experience of the abuse

of the immunity clause, members of the School concludes that the fact of few instances

showcasing the abuse of immunity clause is not sufficient ground to strip off other public

official of the immunity granted them. Hence, constitutional immunity prevails over

every other consideration.

146

Igbanojude, ‘Immunity: to be or not to be?’ This day Newspaper,(Nigeria 7 June 2005) 8.

147 This Day Newspaper,(Nigeria 18 April 2001)13.

148 Famous Renowned Constitutional Lawyer in Nigeria and was also interviewed by This Day

Newspaper on the same theme.

63

Akin to the above argument is the argument that removing the immunity clause will have

little or no effect because we will still be having same Nigerians in the system who will

now seek to rely on ‘god fathers’ and an inefficient and corrupt judicial system. It has

also been argued further that expunging immunity clause will create an absurdity and

make judicial process preposterous.149

Looking at it critically, it is the Attorney General

that prosecutes criminal cases and he is given wide powers under section 174 and 211 of

the 1999 Nigerian Constitution to prosecute, initiate, undertake or discontinue criminal

prosecution in the Courts except a Court Martial. The Attorney General is a political

appointment by the President or Governor. Thus, if executive immunity is removed, the

question is who will prosecute the Governor, since the Attorney General is appointed by

the Governor who is presumably will be acting in accordance to the instruction of the

Governor?

Even if a suit is eventually made against the Governor, the Attorney General can

discontinue it since there is no limitation to his power except that in section 211(3) which

advises that the office of the Attorney General should be used for public interest. Thus,

the Attorney General need not give reasons for his decision.150

The result of this scenario

is twofold:

149

Dr Izinyon A, ‘Removal of Immunity clause is Bad for Good Governance’ Guardian Newspaper,

(Nigeria 25 March 2008) 97-99.

150 State v Ilori&2 Ors (1983)1SCNLR 94.

64

1. An Attorney General will refuse to prosecute either the governor or the president

as the case may be unless such Attorney General wants to risk losing his job.

2. An Attorney General can be used against a perceived political opponent where

such an opponent does not enjoy immunity. For example, the President can use

the Attorney General of the federation against his Vice President so also the

governors if the two of them operate on different political wave lengths.

To the positivist, removing the immunity clause may create more problems than solving

the ones already on ground. The reasons for the arguments of the formalist school boil

down to these points:

1. The retention of the immunity will avoid distraction of the office holder from

doing what he was elected to do.151

2. The retention of the immunity clause will maintain or preserve the dignity of the

office which was the main reason for the insertion of the immunity clause under

Section 308 in the first place.

3. The immunity clause has to a large extent guaranteed the term of office of

executive office holders, as criminal prosecutions against them would have led to

convictions,thus creating vacuum in the office from time to time. Political

151

Kupoloyi A., ‘Don’t Remove Immunity Clause’, Daily Trust Newspaper,(Nigeria

Wednesday, 21 January, 2009)13,Ohis U., ‘Immunity clause as necessary Evil’

<http://www.chartafrikarticles.com/articles> accessed on 30 November 2011.

65

opponents have been barricaded from using litigations as instrument of pulling

down incumbent officers and thus destabilize the political system.

4. To the positivists, immunity has helped to prevent incessant bye elections which

would have arisen as a result of elections which might be meant to replace office

holders who are removed from office if there were no immunity.

5. The existence of immunity in the Constitution can prevent an overzealous

President or Governor from using Court proceedings to humiliate out of office his

deputy to whom he has fallen out with.

An illustration on the last point can be seen fromthe relationship between former

President Olusegun Obasanjo and his deputy President; Atiku Abubakar. The former

President through his special assistant on public affairs declared the office of the Vice

President vacant. Granted that Atiku Abubakar had dumped the peoples democratic party

(PDP) which sponsored him into office (an act which the Court of Appeal said is morally

reprehensible)to form the action congress(AC), he could not be sacked by the President

because he was elected and not appointed. The principle of resignation by conduct

contained in section 68(1) (g) and 109 of the Constitution applies to members of the

National Assembly and the State House of Assembly respectively, only. Of course, both

the Court of Appeal and the Supreme Court came to the conclusion that the office of

Atiku Abubakar was still subsisting and would not terminate until 29 May, 2007.152

Vice

152

Attorney General (Federation) v Abubakar (2007)6 MJSC 1.

66

President Atiku was later to be indicted for corrupt practices by an administrative panel

of inquiry and was disqualified by the Independent National Electoral Commission

(INEC) from contesting the 2007 general election on the basis of the indictment until the

intervention of the Supreme Court reversed the decision of INEC.153

4.1.1.1: THE MORALIST SUBSTANTIVE SCHOOL

On the other side, the moral substantive school argued that the immunity clause is a curse

in Nigerian governance. While the positivist school address the issue from the legal point

of view, the moralist perceive of it from the ethical angle.

To the members of this school, the provision of Section 308 is antithetical to the doctrine

of equality before the law. Immunity clause is seen as a codification of Orwellian maxim

that‘all animals are equal but some animals are more equal than others’. They posit that

instead of losing our sanity over the existence or otherwise of immunity in favor of

certain category of public office holders who always act and hide under legality of

constitutional immunity and perpetuate evil in the office through corrupt practices,

criminal behaviors and bad leadership, the application of utilitarianism should be decisive

and conclusive on the matter. Utilitarianism is an ethical theory based on the principle of

equity, the principle of the greatest good for the greatest number of people. According to

utilitarianism, utility is the moral standard: it is the criterion with which good actions are

153

AC v INEC (2007)10 MJSC 125.

67

distinguished from bad actions.154

That is the rightness or wrongness of an action should

be decided only on the basis of the consequences of the action. Those actions that

produce good results, the greatest good for the greatest number are good; while those that

produce evil result, pain or unhappiness are evil. Act- utilitarianism does not take into

account the nature of an action itself; what counts is the result or consequence of the

action.

This School has therefore argued that the immunity clause has not brought greatergood to

greater number of people, considering the outcome of Section 308 on the society. The

outcome of the clause is that some individuals in the society are placed above others

(even if it is temporarily)by not subjecting these Chief executives to account for their

actions while in office. This brings injustice and any act of injustice should be morally

condemned. Thus,immunity makes the principle of rule of law a mockery.

Conversely, they have also argued that immunity from prosecution is subject to abuses by

the public holders. The aforementioned Chief executives and their deputies act and hide

under the legality of Constitutional immunity and perpetuate evil in the office through

corrupt practices and criminal behaviors without any check. The instrument of immunity

clause has made these public holders to harass their opponents and to kill, maim, destroy

all critiques who stand in their way. To this end, the sustainability of democracy which

154

Omoregbe, J. O, Ethics: A Systematic and Historical Study (Padstubbers Publishers, Lagos

2003)13.

68

the clause seeks to sustain is being destroyed by these public holders.In consonance with

this position, Justice Alfa Belgore, Chairman of the National Judicial Council(NJC) in

Nigeria while representing NJC’s position on the controversy over immunity clause to the

senate committee maintains that:

The immunity from criminal prosecution granted to specified officers of

stateunder section 308 of the Constitution is being abused and is capable being

abusedin a manner that could endanger the nation and its democratic system of

government.155

Hence, members of the moralist group have argued that in order to reduce corruption in

Nigeria,this clause must be expunged. The former Chairman of Economic and Financial

Crimes Commission Alhaji Nuhu Ribadu remarked156

:

Unless we remove this immunity clause, it will be difficult to address the

problemof corruption in Nigeria.

Members of the moralist group have also argued that the removal of this ‘irresponsible’

clause will act as deterrence; no matter how small this effect will be(this is because

Nigerian politicians will always find a loophole to commit their crimes, irrespective of

any law imposed on them). However, it will serve as a check to others with the aim and

intent of going into politics or government to make money. This will curb the attitude of

Nigerian politicians towards governance, that is, politics being regarded as a profitable

155

Ndidi O, ‘How far can the senate go?’, <http://news.biafranigeriaworld.com/archive/2004/jun/18/07.html>accessed on 2 May 2012. 156

. Ribadu N, ‘Obstacles to Effective Prosecution of Corrupt Practices and Financial Crimes Cases in

Nigeria’ (Paper Delivered in Kaduna State of Nigeria at a Three day Summit Organized by the

State House Committee on Anti Corruption 2004) 7.

69

business. This will help to determine those who have the love of Nigeria and who are

willing to serve and not to rule.

It has also been argued by the proponent of this school that Nigeria is not politically

mature to have section 308 in our Constitution without being abused. This goes to the fact

that Nigeria has not yet reached the stage of ‘civilized’ democracy and even in the

developed world like United State of America, the immunity is restricted. Given our

experience of dictatorship by the military and interruption of democracy until 1999, this

School posits that Nigeria is not yet ‘ripe’ for the absolute immunity conferred under

section 308.

Also, the immunity clause as posited by this group undermines the role of the judiciary

under section 6(6)(B) of the Constitution and that of the Constitution itself. The argument

is that to allow a few category of public office holder immunity from Court processes

over their actions while in office would not only amount to denying the Constitution the

benefits of gaining strength through the interpretative role of the Judiciary but would also

create leviathans who have the mandate to take actions but are not bound by them. To

wait till an incumbent executive vacates office before holding him liable for offences

(deliberately) by him knowing that he is not answerable to the law at the time of the

commission should only amount to closing the stable while the horse has bolted away.157

157

Oweettee Emmanuel, ‘Executive Immunity and National Interest’Daily Champion Newspaper

(Nigeria 6 December 2004).C1.

70

What section 308 has provided for is only the approval of investigation of the chief

executives and their deputies.158

The reason for the above arguments put forward by the moralist school boils down to

these points:

1. Executive officers have used immunity to the detriment rather to the benefit of the

nation while the Constitution provides protection to them through the

immunityclause; they use this as an opportunity to violate some provisions of the

Constitution itself.

2. For an offence which an incumbent executive officer cannot be prosecuted, an

ordinary citizen will be immediately convicted for such an offence. With this,

there is no respect for the rule of law which postulates equality for every man

before the law. Though, the period of non prosecution of these public officers is

for the period of their offices, the time which the other party would have to wait

amounts to ‘justice delayed and justice denied.’

3. Very importantly, the heat of passion for acts done fraudulently while in office

might have subsided by the time these chief executive and their deputies vacate

office or worse still the party aggrieved might even have died and this forecloses

the possibility of prosecution.159

on the other hand, the ‘pains’ and psychological

158

Fawehinmi v I.G.P[2000] 7NWLR (Pt.665) 533 .

159 Alamiesigha v Yeiwa[2000]7 NWLR (Pt.767)581.

71

traumasuffered by an aggrieved party to any of these officers would increase by

the day since such party will have to wait until the expiration of the office.

4. The defense of immunity has rendered ineffective and impotent the machinery set

up by the government through Economic and Financial Crimes

Commission(EFCC), Independent Corrupt Practices and other Related

Commission(ICPC) and Code of Conduct Bureau-all of which are to sanitize the

society of corruption and other vices.

4.2.0: EXCERPTS FROM SUPPORTERS FOR THE EXCLUSION OF

IMMUNITY CLAUSE

There are some Nigerians who have called for the exclusion of immunity clause. Thus,we

can classify them under the formalist school.

LATE PRESIDENT ALHAJI MUSA YAR’ADUA

The first in this line is Nigeria late President, Alhaji Musa Yar’adua who before his death

spoke in front of representatives of multi-national corporations called ‘Partnership against

Corruption Initiative’ in Davo, Switzerland upon his emergence as president. He said:

One of the raging debates in Nigeria today is the issue of constitutional

immunityfrom prosecution conferred on the president, vice president, governors

and deputyGovernors. I have confidence that the next constitutional amendment

will strip thesepublic officials of the immunity and I am personally in support of

72

that. Nobody in Nigeria deserves the right to be protected by law when looting

public funds.160

The expression shows that abuse of immunity clause by corruption is not only at the heart

of average Nigerians but also to those honest Nigerians who sees immunity as a shield of

covering leaders from prosecution.

FORMER PRESIDENT OLUSEGUN OBASANJO GCFR

The former President called on delegates during the concluded national political reform

conference to delete the immunity clause from the Constitution. To the delegates, the

President was almost embarrassingly blunt161

:

I believe that it is stupidity to keep the clause. As soon as you are caught

committingan offence while in office, you should be charged for that offence at

once.

The former president’s tone is an expression of how worrisome the issue has

become.Also speaking in London, he said his government was working towards

amending the Constitution to ensure that the immunity being enjoyed by some political

office holders did not impede the government’s anti corruption campaign.162

160

Yar’adua Canvases Removal of Immunity Clause’ at<http://www.efcnigeria.org> accessed on 23

November 2011.

161 The Daily Newspaper,(Nigeria 31 March 2005)17.

162 The Punch Newspaper,(Nigeria 16 March , 2005)8.

73

FORMER VICE PRESIDENT- ALHAJI ATIKU ABUBAKAR

At a Conference on security in the Gulf of Guinea organized by the Centre for Strategic

and International Studies, Washington DC, Alhaji Abubakar said that in order to

effectively fight corruption, especially among members of the executives, the immunity

clause has to be expunged from the nation’s Constitution. He said163

:

Despite reasons borne out of experience, the immunity clause does not speak

well of the principles of equality before the law, for a certain category of our

public officers to be automatically and fully immune from prosecution for all

misdeeds. Our system must devise a way of protecting such officers from

frivolous litigations, but not through automatic and total immunity. Corruption

and the practice of liberal democracy cannot exist. One way or the other, our

public officers in the highest offices, must be held accountable by the same laws

that send to jail a common man who steals what does not belong to him.

LATE GANI FAWEHIMI SAN

The human right advocate had insisted that the whole of Section 308 ‘must go’ if Nigeria

must witness meaningful governance. In his words164

:

The entire section 308 has to go. If it does not go, corruption will not end in

NigeriaIf section 308 is not removed, executive lawlessness will never stop in

Nigeria. If section308 is not thrown out of our constitutional order, abuse of

power will continue to heighten in the body polity of Nigeria.

Speaking further on the issue, Fawehinmi explained that sparring a sitting President or

Governor who has committed crime till the end of his tenure will give room for

manipulation of evidence and perversion of the cause of justice. He said:

163

Guardian Newspaper,(Nigeria 21 July 2005)15.

164 The Guardian Newspaper, (Nigeria 26 April 2004) 19.

74

The period enables him to erase evidence, compromise witnesses and make

nonsense of investigation process. Even after leaving office, his deputy governor

or vice president mayprevent his prosecution.

He cited the example of Israel where Prime Minister Ariel Sharon and his son were

subjected to criminal investigation for bribes allegedly collected by the son while Sharon

was a Minister. Fawehinmi noted global trend seems to suggest that political leaders are

also subjected to the rule of law, just like the people.

FORMER ATTORNEY GENERAL OF THE FEDERATION; CHIEF AKIN

OLUJIMI (SAN)

Akin Olujinmi at a press conference in Abuja sensitizing Nigerians to fight against

corruption, as a prelude to the international day corruption, said165

:

If we want to effectively fight corruption, the clause has to go. The clause

appears to be working against the country.

NATIONAL JUDICIAL COUNCIL(NJC)

The National Judicial Council has also thrown its weight behind removing the immunity

clause. The council led by the former Chief Justice of Nigeria, Justice Muhammed Uwais

canvassed for the withdrawal of the immunity from prosecution enjoyed by the specified

officers in the State.In a memorandum to the sub-committee on supplementary and

general provisions of the Joint Assembly Committee on the review of the 1999

Constitution, Uwais who was represented by the NJC Deputy Chairman, Justice Alfa

165

Nigerian Tribune,(Nigeria December 8 2004)45.

75

Belgore recommended that the immunity be limited to civil suits against the public

officers in their private capacity. The NJC memorandum also sought that immunity from

criminal prosecution including arrest for felonies be abolished.166

The Memorandum

further reads:

The committee notes that the immunity from criminal prosecution granted to the

specific officers of state under section 308 of the constitution is being abused

and is capable of being abused in a manner that could endanger the nation and

its democratic system of government. It is observed that under the current

provision Of section 308 of the Constitution, an officer to whom the section

applies can with immunity abuse the constitutional provision.if he commits a

crime openly, for example by shooting an opponent or by embezzling public

funds or by importing and possessing dangerous arms and ammunition illegally,

he can neither be arrested nor prosecuted for any criminal offence as long as he

holds office.As section 308 stands, an abuse of immunity from prosecution will

not only be scandalous, but will be untoldinjustice to the complainant, the

administration of justice in the country and the public at large.This will put the

administration of justice into disrepute and make the country a laughing stock in

the comity of nations. In this day and age in the world, this will have disastrous

consequences for society and itseconomy....…

In view of all the following, the committee is of the opinion that the immunity

granted under section 308 be reviewed with a view to closing avenues of abuse.

JUSTICEKAYODE ESO(JSC)

Throwing his weight behind the National Judicial Council, the retired Supreme Court

Justice said the move to abolish immunity clause is ‘a good omen for democracy and the

rule of law’. He further noted that it is sad that while England from where Nigeria copied

the clause (from English Common Law) that sees the king as a personality that can do no

wrong is already shedding the clause, Nigeria is still clinging tight to it. He noted:

I am happy that the suggestion has been made by the NJC. In a country like

ours, nobody should put himself above others.We are all equal. If you do wrong,

166

The punch Newspaper,(Nigeria 16 April 2004)36.

76

whether you are a president or governor or dignitaries, you will be sued as

ordinary Kayoed Eso Will be sued.167

CHIEF EMEKA ANYAOKU

Former Secretary General of Commonwealth, Chief Emeka Anyaoku, has also called for

the removal of the immunity clause which restricts political office holders from

prosecution as he renews call for the conveyance of a National Conference. Anyaoku

made this call at the distinguished management lecture organized by the Nigerian

Institute of Management, in celebration of its 50th anniversary with theme ‘Nigeria at 50

– The Challenges of Nationhood’ where he said the removal of the clause would wipe

out corruption from all facets of the Nigerian nation. According to him:

When immunity clause is removed, all forms of corruption will drastically

reduce in Nigeria. Since the immunity comes from the top, the other people will

follow suit. The President and the Governors should not have any immunity

from criminal offences.They should only have immunity for civil offences

because constant law suits on civil offences will distort the day-to-day running

of the country.

CHIEF RICHARD AKINJIDE

Chief Richard Akinjide has this to say:168

The immunity clause has been grossly abused. No innocent person will have anything

to fear if theimmunity is removed. The reputation of Nigeria as the second most corrupt

country in the world isvery damaging and embarrassing. I support the stand of the chief

Justice of the federation.

167

The Guardian Newspaper( Nigeria 26 April 2004)15.

168 The Vanguard,Newspaper (Nigeria 18 April 2004)13.

77

STAKEHOLDERS STRATEGIC SESSION ON STATE OF CORRUPTION IN

NIGERIA

A stakeholder forum on the state of corruption in Nigeria was organized on the 20th

July

2011 in Ikeja by HEDA resource centre, Committee for Defense of Human

Rights(CDHR), Women Advocacy Research and Documentation Centre(WARDC),

Partnership for Justice(PJ), Citizens Assistant Centre(CAC) and Socio Economic Rights

and Accountability Project (SERAP).The stakeholders at the end of the session concluded

that immunity clause should not be retained, in their words169

:

That immunity clause which has been providing for serving president, the vice

president, the governor and the deputy governor must be removed from the

Constitution. The clause has outlived its usefulness and in fact it promotes mis-

governance rather than good governance it originally intended to promote.

Religious leaders have also added their voice;

BISHOP OF EDO AND DELTA STATE DIOCESE

The bishop of Edo and Delta Diocese of the First Anglican Mission, The Right Reverend

Andrew Obarisigbon said inter alia that the decision of the leadership of the Christian

community to support the idea of the removal of the immunity clause was based on the

169

<http://saharareporters.com/press-release/stakeholders-strategic-session-state-corruption-nigeria-

organised-heda-resource-centre> accessed on 11 July 2011.

78

alarming result of a survey that many public officers hide under the clause and ‘god

fatherism’ to perpetuate evil in governance.170

The Church of Nigeria Standing Committee also held a meeting between Thursday 14th

and Friday 15th

September 2006 at St Paul’s Cathedral Diobu, Porthacourt presided by

the Most Revd. Peter J. Akinola and they resolved as follows:171

The Church recognizesthat the law of the law is sacrosanct and inviolable. However,

the Constitutionshould be reviewed to allow the immunity clause to be limited in its

application to civil matters. This implies that public officers alleged with the

commission of a criminaloffence should not be immune from being investigated,

charged and tried in a competentCourt of jurisdiction as appropriate.

DR LATEEF ADEGBITE

The Secretary General of the Supreme Council for Islamic Affairs, DrLateef Adegbite

has this to say172

:

I have always maintained, not because of the recent recommendations of the NJC, that

the immunityof these people should be expunged out of the constitution……I think the

law is totally obnoxious andshould be expunged. Whether you are in government, you

should be subject to the rule of law. I think the earlier it is scrapped, the better for the

country.

170

The Guardian Newspaper, (Nigeria 16 April 2005)12.

171 <http://www.anglican-nig.org/PH2006messages2nation.htm>accessed

on 9 September 2011.

172 Vanguard Newspaper,(Nigeria 18 April 2004)23.

79

JUSTICE MUSTAPHA AKANBI

The former Chairman of the Independent and Corrupt Practices Commission and former

President of the Court of Appeal had this to say:

The whole idea of giving immunity is founded on the fact that those people who are

covered by immunity will show themselves to be men of integrity and honour.

He stated that it was a general belief that those covered by immunity would be men who

will represent the best interest of the nation. According to him, the circumstances which

brought about immunity is that ‘the king does no wrong and that whoever is the president

or governor will not do any wrong. This is because these people are seen as men of

integrity. Justice Akanbi quickly noted that these attribute of integrity are not found in

Nigerian chief executives. Thus, making the presumption those Nigerian chief executives

can do no wrong in the Nigerian context incorrect. He however added:

If a crime has been established (outrageous crime)that will bring the image of the

countrydown, then it should be possible to lift the veil of immunity.

He said that those types of crime could be especially defined and the offenders taken to a

law court for prosecution in the event of proof of evidence against them.173

4.2.1: EXCERPTS ROM SUPPORTERS FOR THE RETENTION OFTHE

IMMUNITY CLAUSE

These Nigerians have made their opinion known that it is desirable to keep immunity

clause as it is under Section 308 of the Constitution. They can however be classified

173

The Guardian Newspaper,(Nigeria 29 March 2005)5.

80

under the Formalist School.However, it may be seen that these set of Nigerians are, so to

say in the minority. These people include:

DR CHUKWUNEKE ANAGBOGU

Chukwueneke Anagbogu a lecturer at the Faculty of Law, Nnamdi Azikwe University

Awka. In advocating for the retention of the immunity clause said that:174

Removal of immunity would rather bring distraction to the office holder and since it is

most likely to be used by his detractors or political opponents to score cheap

politicalpoint. Consequent upon this is that the office holder may start to develop a

more sophisticated means by siphoning government funds and try to cleverly close

loopholes.In all, immunity should not be tempered with. It is a policy legislation meant

to remove distraction from the office holder,which is not even absolute. The beauty

there however is that section 308(3) provides that it applies only during the period of

office of the office holder.

DR MUHTAR ETUDAIYE

Dr Etudaiye is a lecturer at the Faculty of Law, department of International law and

Jurisprudence, University of Ilorin. He also advocated for the retention of immunity

clause. To him,there will be commotion in our political system if the immunity clause is

absent. At a personal interview with him he said that:

There will be commotion because these public officials will be left unprotected. The

problem we have is not in our laws,it is the people. Where people have made up their

mind that they don’t want to abide by a law, the law will not work. The immunity

clause must remain, if not people will remove the executives on the basis of lineage

and political affiliation. The law must be right and people must be sensitized in

upholding the law.

174

Anigbogu,C. ‘Complexities of Constitution’ Independent Newspaper,(Nigeria November 26,

2005) and an earlier Article, ‘Need for Retention of Immunity Clause in the Constitution’,

Published on 24 February, 2005. B11.

81

CHIEF ACHIKE UDENWA

Chief Achike was the Imo State Governor between 1999 and 2007. He was speaking

during the Senate screening as a ministerial nominee. He faulted the position of President

Umaru Musa Yar’adua on the removal of immunity clause. Responding to a question

during the senate screening exercise on the removal of immunity clause, he opposed the

removal of the contentious clause on the ground that its removal will need filling of

frivolous cases against serving Governors and distract the state executives from their

duties.He said:

I will not advocate for the removal of the immunity clause. A governor will

becomedistracted from his office. If this clause is removed as he may be daily saddled

with thetask of appearing in courts to defend one allegation or the other. We should not

say because some governors abused this provision, use this as a basis for the removal

of theImmunity clause. We should retain the immunity clause; otherwise, some

politicians will go to court frivolously in order to distract a sitting governor. I will

however support limitingthe immunity to civil cases.175

DR BEKO

A human right activist also lent his voice to the retention of the immunity clause. This is

because leaders must be shielded from prosecution so as to protect the integrity of the

office. He said176

:

I don’t know anywhere in the world where immunity is not provided for a serving

President and his deputy.

175

E-wash News,17 December 2008.

176 The Guardian Newspaper,(Nigeria 26 April 2006)15.

82

GENERAL SALIHU IBRAHIM

The former Chief of Army staff and member of the Board of Trustees of the People’s

Democratic Party lending his voice for the retention of the immunity for sake of stable

government said that:

I think it will be great error for our country to tamper with the immunity clause

containedin the Federal Constitution. Should any attempt be made to change that then,

we would benot protect public office holders from unnecessary litigation that could

impede the smoothRunning of government.177

4.3.0: CONCLUSION

It was amidst this debate between removal and non removal that former Nigeria’s

military Head of State and Presidential candidate of the Congress for Progressive

Change, General Buhari (rtd) promised in his manifesto on 1st

March 2011 that he will

remove the immunity clause if he is elected in the April election. In his exact words, he

said: ‘we will amend the Constitution to remove immunity from prosecution for an

elected officer in Criminal cases.’178

From all these debates and excerpts from eminent Nigerians, it is now clear that there are

two sides to look at the ‘coin’ of the immunity clause under section 308. Thus the

situation is farfrom being settled since Governors, Presidents and their deputies still enjoy

immunity up to the time of this write up.

177

The Guardian Newspaper,(Nigeria 22 April 2004)24.

178 Punch Newspaper,(Nigeria 28 February 2011)13.

83

CHAPTER FIVE

GENERAL CONCLUSION

5.0.0: CONCLUSION

In the preceding chapters, I have examined the meaning of ‘immunity’ tracing its history

or origin into the Nigerian Constitution from the feudal structure of the English society

and doctrine of sovereignty, originally designed to protect the English monarch. I have

also traced the doctrine from African traditional perspective. There is also an analysis of

Section 308 of the 1999 Constitution with the intention of establishing the proper scope

and limits of the section. Further, there is a comparative study of ‘executive immunity’ in

Nigeria with what is obtained in other jurisdictions of the world. The next chapter bears

the views of some eminent Nigerians in regard to the immunity clause and some

recommendation in this chapter. I conclude by saying that whether we expunge Section

308 from our Constitution or not; water it down or not, in the words of George Grane179

:

‘There is no future in the job. The future lies in the man who holds the job’. Also

according to Ojo180

:

It is not the Constitution that makes good government, but the caliber and the

commitment of those who are chosen to run the governments.

179

Grane G, ‘there is no future in the job’,

<http://www.goodreads.com/quotes/show/140173>accessed on 2 May 2012

180 Ojo J.D, ‘Democracy within and outside the Tower’ (paper delivered at the

University of Ibadan in 2001)51.

84

Now coming to the fact in issue, whether immunity clause is a blessing or a curse in our

Constitution? To this writer, the immunity clause has both been a curse and a blessing. In

my humble view, the advantages of immunity clause highlighted in this research work

have made the immunity clause a blessing while the disadvantages have made it a curse

in the other sense. Thus, General Buhari (Rtd.)was right to have made known his view

during his campaign.181

In conclusion, Nigeria should maintain and retain the current constitutional provision

that protects chief executives from prosecution, or repeal it, amend it, refine it, retool it,

reform it, but it should not be jettisoned because of the ‘rape’ of this provision by some

chief executives. We must continue to emphasize respect for the rule of law, due process,

freedom and justice for all, even as we fine-tune our system and as democracy takes root.

5.1.0: RECOMMENDATION

Adding my contribution to what eminent Nigerianshas contributed, it will be very proper

to bear in mind the recommendation of the National Judicial Council in a Memorandum

to the sub-committee on Supplementary and General Provisions of the Joint National

Assembly Committee of the 1999 Constitution which has been quoted in the course of

this work.182

The Council however recommends that:183

181

Punch Newspaper, (Nigeria, 28 February 2011)1.

182 Page 162.

183 The Punch Newspaper,(Nigeria 16 April 2004)36.

85

In view of all the following, the committee is of the opinion that the immunity granted

underSection 308 be reviewed with a view to closing avenues of abuse.

I am in agreement with the recommendations of the National Judicial Council. It has

however been suggested that a qualified immunity which covers the official acts of the

office holders only should be allowed in the constitution. According to a writer:184

It is obvious that section 308 is a provision too broad for the purpose for which it is

meant.It is in effect an excessive protection of the president and governors as what is

sought to be achieved through the section can better be achieved if the immunity is

limited to the official transactions of the persons named in the section to the exclusion

of every other transaction, they may get involved in. such qualified immunity offers a

double barrel blessing. the first is that it would reduce the arbitrariness of such

officials, and second, it would roll away the stone from the iniquitous tomb to which

section 308 has confined people’s fundamental right to sue when their rights have been

trampled upon by any of the persons named in the section…it is time for the legislature

to amend the immunity provision of the constitution to make it applicable only when

the official acts of the persons named in the section come into question.

While agreeing with the above recommendations, it is necessary to give my own

recommendation on the debate. The various arguments already captured in this paper

have their demerits and merits. It is however observed that an amendment of the

provision of executive immunity in the Constitution to meet the demands of the time may

be met with stiff resistance mounted by its beneficiaries and those in support for the

retention of the clause.Thus, a middle course must be reached.

The support here is not the total abrogation of the clause, rather the opinion here is that

executive immunity should be contained in an Act of the National Assembly and not the

Constitution. This makes for easy amendment to suit changing circumstance in the

184

Enabulele A.O, ‘From Immunity to Impunity: A Scandalization of the Rule of Law’ in Chianu E.

(eds.): Legal Principles and Policies, note 68. 245 at 256-257.

86

nation’s political life. For this to be made possible, item 47 of the second schedule

(exclusive legislative list) of the Constitution which provides for ‘powers of the National

Assembly, and Privileges and Immunities of the Members’ should be enlarged to include

‘Immunities of the President and Vice President of the Federal Republic of Nigeria, and

Governors and Deputy Governors’, thereby empowering the National Assembly to

validly make a law on executive immunity. This power should be exclusive to the

National Assembly and not shared with the State Houses of Assembly for the sake of

uniformity. The benefit of such an amendment is that the immunity enjoyed by one organ

of government only is not given a special status. If any organ of government should enjoy

constitutional immunity at all, it should not be the executive for two reasons;

First,the executive is the domineering organ in the Nigerian governmental structure as a

result of prolonged military rule.185

Secondly, a break from the concept of monarchical

sovereignty under colonialism and the position under the petition of rights laws should

ordinarily require that no special immunity status is granted to the executive. An

amendment as proposed would curb excessive rigidity in terms of preservation of

executive immunity so that possible amendment to meet changing circumstance is made

possible, while at the same time, impreciseness is avoided.

185

Achike O, ‘Groundwork of Military Law and Military Rule in Nigeria’(Fourth dimension

publishers, Enugu 1980) 0n how military rule made the executive more domineering of the three

tiers.

87

Absolute immunity as it is at the moment is not good for the development of democracy

and good governance in the country, the argument that the immunity is only for the

period of office, notwithstanding. The immunity that should be ina Statute as I have

proposed should be a qualified one in the realm of criminal prosecutions just like

Tanzania, India and Cyprus mentioned above. It is however suggested that executive

immunity should stop where the credibility to continue is in issue these offences include:

Economic/ Financial Crimes, Corrupt Practices, Forgery, Rape and Homicide. These are

offences that Nigerians loathe. It is the view here that just as any one aspiring to public

office in Nigeria should not have been tried and convicted of any of these crimes,so also

any one alleged to have committed these offences should not be allowed to remain in

office under the guise of immunity. Furthermore, any Governor, or even the President

and their deputies who are alleged to have committed any of these crimes would suffer

from moral/political credibility crises. At such times, the business of governance is hardly

concentrated upon.

In order to curb frivolous allegations, these offences must be those alleged to have been

committed during their tenure in office or committed in order to attain the office.

Financial crimes, Homicide and offences mentioned above committed before office and

which were not in furtherance of the attainment of the political office should be

prosecuted at the end of the tenure of the executive office holder.

88

Another aspect to look at is whether the National Assembly’s capacity to legislate on

executiveimmunity through item 47 does not leave the executive at the mercy of the

legislature? This problem can be solved by providing a procedure for operation and

amendment of the law made pursuant in the item, just like we have procedures in section

143 and188 of the constitution for removal of President and Governors. This is to check

errant legislators.

How will the executive office holder be made to answer for his alleged heinous crimes?

Will the Attorney General be fair to the State in handling such prosecution? In the law of

the National Assembly on executive immunity proposed in this paper186

, all those

procedures would be outlined, just like that of India. The suggestion here is that upon the

completion of investigation by the relevant agency sequel to an allegation of the

commission of any of these crimes, the evidence gathered should be brought before a

High Court Judge by an independent counsel just like that of the United State who would

access the evidence to know whether a prima facie case has been established against the

office holder enjoying immunity, thus necessitating a full trial. The essence of

establishing a prima facie case is to further forestall frivolous prosecution. Where the

judge rules in the affirmative, then the office holder goes on vacation to stand trial. The

law on executive immunity should contain a provision that such cases must be given

diligent prosecution. A failure of diligent prosecution entitles the officer on vacation to

186

Amendment of Item 47.

89

ask that the case be struck out and should not be entertained by the court during his term

in office except fresh facts are presented in the form of evidence before the Judge of a

High Court to establish again a prima facie case. Where a criminal prosecution is stopped

due to lack of diligent prosecution,the office holder is entitled to resume his office. The

details of what would amount to diligent prosecution should be worked out in the law.

Where however, the criminal suit against him/her goes to full trial and the officer is

convicted, subject to the right of appeal, he or she immediately loose his /her office and

the deputy or vice is sworn-in in a substantive capacity. On the other hand, if he or she is

not found guilty,the office holder resumes his/her office. Given the reality of power tussle

and suspicion between Governors and their deputies, the period of vacation may work

against the Governor or Presidentin terms of relevance and control of the party

machinery, but it works to restore credibility to the government of the day and further

restores the confidence of the governed in the government. In my view, national interest

and political development of the nation should prevail over the interest of the office

holder.

Central to the success of the prosecution of an executive temporarily stripped of his

immunity for the purposes prosecution in Court on the grounds of criminal allegations

against him/her is the power of the Attorney General to issue a nolle prosequi187

. For a

successful prosecution, the power of the Attorney General in this respect should be

187

Latin words which means ‘not to wish to Prosecute’.

90

qualified to preclude the issuance of a nolle prosequi whenever a prosecution in

pursuance of the law on executive immunity is being embarked upon. This necessitates

an amendment of the provisions of the Constitution on the power of the Attorney General

to accommodate this recommendation.

The freedom to sue in civil matters enjoyed by the executive at the moment seems not to

have posed much of a problem. It is believed that it was in bid to remain credible to

continue in office that beneficiaries of immunity instituted court actions in cases like

Onabanjo v Concord Press Ltd188

and Duke v Global Excellence Communication.189

It

was open to the defendants to raise the defense of justification by proving the truthfulness

of the defamatory publications. If successfully pleaded, this could itself lead to the

prosecution of the office holder under an executive Immunities and Privileges Act.

Therefore rushing to remove the immunity from civil suits enjoyed by them is

unnecessary. If they begin to embark on distracting suits themselves, the statute on

executive immunity can then be amended to take care of that.

188

(1981) 2 N.C.L.R. 399.

189 (2007)1 WRN 63.

91

BIBLIOGRAPHY

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97

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