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
ARTICLES IN JOURNALS
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93
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95
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96
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Chronicle, (Ghana 30 November 2011)4.
Igbano Jude, ‘Immunity: to be or not to be?’This day Newspaper(Nigeria 7 June
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97
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2006).
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98
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L.L.M dissertation Thesis submitted to the Faculty of Law, Obafemi Awolowo
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