THE CONCEPT OF IMMUNITY CLAUSE: A FREE ACCESS TO CORRUPTION ( A need for the review of Sec. 308 of the 1999 CFRN) BY INNOCENT CHIWUOKEM SYLVESTER

The doctrine of sovereign immunity is of immemorial antiquity. The exact origin of the concept has been a nebulous long term debate. Nevertheless, it is a prominent preview among the legal historians that sovereign immunity stemmed from the English common law system, this anachronous principle is established on the maxim rex non potest peccare (the king can do no wrong). The body solely responsible for law making and adjudication was the king or his representatives. The king was the most superior being and therefore exempted from legal proceedings, obligations and liability which might occur while discharging some onuses single handedly or by proxy.

The idea of immunity from legal process is as a general rule abhorrent to modern legal civilization, Some writers however has argued in favour of the retention and benefits of immunity clause in the constitution without averting their minds to the wide nature of it which paves way for the access to corruption by public officers who are granted it.  The question will now be ‘Of what relevance is the wide scope of immunity clause if it is the means for which corruption majorly transmits through?’  ‘Of what benefit is immunity clause if it is being used as a sword against democracy and a shield to cover corruption by the public officers whom it is meant for?’

This article examines, albeit briefly the concept of immunity clause in Nigeria, it’s supposed advantages for the creation and the means or ways by which it is used as a shield by public officers to cover themselves from corruption in the present modern day Nigeria.

The issue of provision of immunity clause in the constitution of the federal republic of Nigeria (CRFN) 1999 which is no less than the ground norm of the country makes the clause immutable, thereby making immunity clause provision not just the law as well unchallengeable.  Executive immunity is the aspect of immunity which is enshrined in section 308 of the constitution that will be considered here. Thus, no president, vice president, Governor or Deputy Governor can be sued in his or her personal capacity while in office. This position was reiterated in the case of Kalu v. EFCC where a court order of 31st day of May 2007 restraining the EFCC from arresting, detaining and prosecution Orji Uzor Kalu the sitting Governor of Abia State was flouted by the EFCC as the commission went ahead to prosecute Governor Orji Uzor Kalu in his personal capacity. The Governor’s counsel petitioned the President and Attorney General of the Federation AG. Fed. Who wrote to the EFCC directing the agency to comply with the court order. However, the EFCC failed to comply with the issued court order and the AG. Fed, came to the court on the next adjourned date for the case and took over the case so as to comply with the said court order.

This act was applauded as a demonstration one of the characteristics of rule of law, yet it is doubtful whether the federal government would have so obeyed a court order were it not for the immunity clause and for the fact that it is related to a sitting Governor. The doctrine or rather concept of Executive immunity clause is aptly captured in section 308 of the constitution.

The purpose of the provision of section 308 is to allow the incumbent president, vice president, Governor or Deputy Governor a completely free hand and mind to position his or her duties. Obviously, the immunity clause as discussed in section 308 of the constitution of the federal republic of Nigeria aims at ensuring that while in office, the officers protected by immunity clause are not held liable for their action in their personal capacity.

By the decisions of the court in the case of Abacha v. FRN [2004] LSELR p.2, this immunity does not extend beyond the tenure in office of the officials mentioned therein. Thus, at the end of their tenure as held in Hussan v. Babangida Ali &ors. [2010] 17NWLR [Pt. 1223] 547, Global Excellence Communication ltd. V. Duke [2007] NWLR [pt. 1059] 22 and Tinubu v. IMB Securities Plc. [2001] 16 NWLR (pt. 740) 679, the law can take its full course.  In the case of Tinubu v. IMB Securities Plc., Iguh J.S.C stated that “the immunity granted to the incumbent of the relevant office under section 308 (1) (a)” of the constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal in respect of any claim or relief against a person to whom section 308 applies during the period he holds such office. No question of waiver of the relevant immunity by the incumbent officer will be entertained by the court.

Another critical question here is whether the provisions of section 308 (1)(a)(b)(c)(2)(3) do not amount to ouster clause of the jurisdictions of the courts of law to adjudicate and bring those executive hierarchy under control of being accountable while in such position of authority? It appears that those in this class of authority are above the law to the extent that no court can entertain any question against them in their personal capacity while in office. This seems untenable in a democratic society or any setting at all.

Herring CJ in the case of Arthur Yates & co.pry. Ltd. v. Vegetable Seeds Committee [1945] 7 CLR p. 168 stated that “it is not the English view of the law that whatever is officially done is law… on the contrary, the principle of English law is that what is done officially must be done in accordance with the law” that is the true meaning of rule of law.

Mowoe criticized the decision in the case of Duke v. Global Excellence Communications [2007] 1 WRN 63. 83-88 which allowed a president or governor to sue in their personal capacity while in office. She opined that “it would appear that such decision is an unfair interpretation of the constitution and is rather tantamount to reading into the constitution a provision not expressly stated and which the drafters of the constitution may have intentionally excluded because of the conflict it would naturally create”.

The question goes further to be `can executives sue while in office?` In the case of Onabaijo v. Concord Press of Nigeria Ltd. Plc., the court went further to state that such immuned executive official can challenge a court order made against him or her in breach of the constitution as held in Alemiyesigha v. Zeiwa [2002] 7NWLR (pt. 767) 581. It is however a state of injustice and inequality that those protected by the immunity clause under section 308 of the constitution of Federal Republic of Nigeria can sue but cannot be sued. It is highly unjust that they use this immunity more as a shield to hide away from the corruption they give access to.

In the case of Industrial Commercial Service ltd. V. Bolton B.V. [2003] 8NWLR [pt. 822] 223, the court of Appeal held that no question of waiver of the relevant immunity by the incumbent of the offices concerned, or indeed by the courts may arise, it is an absolute bar. Even where the incumbent fails to rely on the immunity clause, the court will still decline jurisdiction to entertain the case. Immunity clause only protects public office holders in their personal capacity subject to section 308(2) and not in their official capacity.

It is pertinent to note therefore that certain exceptions exists ass to the issue of the concept of immunity clause. These exceptions are:

Firstly, where the incumbent is a nominal party in a suit, the immunity clause will not extend to a civil action against him is a person mentioned in section 308 of the constitution in his official capacity as well as civil or criminal action in which he is only a nominal party. The Supreme Court held Per Uwaifo JSC in the case of Abacha v. Fawehimi (2000) 6NWLR [pt. 660] 288 and Dasuli v. Muasu (2002) 16 NWLR [pt. 793] 319  that the immunity provided for does not apply to the person in question in his official capacity or to a civil or criminal proceeding in which such a person is only a nominal party. Where the incumbent is only a nominal party in the civil suit, the immunity granted by section 308 of the constitution will not apply.

Secondly, section 308 of the constitution does not immune the officials stipulated in subsection 3 of section 308 of the constitution from police investigation.

Thirdly, the immunity granted by section 308 of the constitution does not cover acts done by the officials mentioned therein outside the country.

Fourthly, the immunity granted by section 308 of the constitution does not extend to election petition proceeding. This is because election petition proceeding are completely divorced from civil proceedings within the context of section 308. This decision was reached by the court in the case of Obi v. Chief Samuel Mbakwe [1984] 15NSCC 127.

Though the above exceptions exist, it has not in any way stopped nor limited the free flow of the corruption caused by the public officials that are granted the said immunity clause. Hence, immunity clause is now used as both a sword to fight political oppositions and a shield to defend themselves ( that is the persons granted immunity under section 308 of the constitution) when those they have offended wants to revenge.

The outcome of this scenario is one of injustice and degradation of the law. The public officers mentioned in section 308 of the constitution of Federal Republic of Nigeria also hide under this concept of immunity clause to commit other atrocities such as killing of people, and because it pertains to their personal capacity which is where the immunity behooves on, no action can be instituted against them. Bringing the cases where immunity clause has constituted and breeded more of corruption in Nigeria is the recent case scenario where the Presiding Officer siphoned some amount of money without the confirmation of the National Assembly to it and this was against the rule of law and constitution of Federal Republic of Nigeria. Because of the immunity bestowed on the President, no one was able to institute proceedings against the president as the masses (citizens) were waiting for the legislature to commence impeachment proceeding against the President which they never did.

Suffice it to say that the concept of immunity clause negates the principle of equality before the law and to some extent supremacy of the constitution. It negates the principle of Equality before the law because it places the public officer’s mention in section 308 of the constitution with higher and superior privileges other than the ordinary citizens of the country.

Equality before the law is one of the basic principles of supremacy of the constitution and such principles exist in a democratic system of government. Nigeria is a democratic legal system and if such principle of equality before the law is found wanting then the status of Nigeria’s democracy should be scrutinized under a judicial microscope and questioned.

If however the concept of immunity clause is made provisions for in our constitution because of its benefits that comes with it, then the wide scope of it should be reviewed and limited.  As one who is a true fan and lover of democracy and the voice of the masses, below are some of the recommendations made for the concept of immunity clause to turn to a blessing and not predominantly a curse, a sword to fight corruption and not a shield to cover and promote it.

Firstly, there should be limited immunity for public office holders mentioned under section 308 (2) of the constitution as it is in other jurisdictions like Italy, England and United States of America. Immunity should be watered down and not cater for offences of corruption and capital offences.

Secondly, there should be judicial activism. This means what the court should act and be willing to depart from its previous decisions and do away with doctrine of stare decisis where it will cause hardship and injustices.

Lastly, a modification of section 308 of the constitution of the federal Republic of Nigeria clearly stipulating for the restriction of those protected under the immunity clause from suing since they cannot be sued. It will amount and create a state of injustice and inequality where those protected under immunity can sue but cannot be sued. 

CONCLUSION:

The Nigerian Experience of the immunity clause has been horrendous, traumatic and yields to social anomaly in the sense of mis-governance and underdevelopment. The immunity clause has overwhelmingly continued to serve as  conduct pipes for siphoning the nation’s wealth by Nigeria leaders without any fear of litigation or challenge.

The concept of immunity clause in the present day Nigeria serves as protection shield or legitimate instrument of corruption and money laundering by certain public officers granted such immunity. The public officers mentioned in section 308 of the constitution now hide on personal capacity to allow corruption a free flow into the governance since they know they always have a shield known as immunity clause to protect them from judicial litigation. It is pertinent to note that the origin of the inclusion of immunity clause into the constitution is from an absolute monarch system in the common law era and therefore applying the full and wide scope of this immunity clause will make Nigeria’s attainment of democracy questionable. It is worthy of note that immunity clause serves to cause a concentration of public officers during the tenure of their office.  The question now is “Of what relevance is the wide scope of operation of immunity clause when it is now used as a free channel and major access to corruption by public officers who are granted with it?” “Is the concept of immunity clause in its wide scope a blessing or a curse?”

This question beckons for a clarion call for a consideration of the recommendations stated above which its main reliance is placed on the need for a review of section 308 of the constitution of Federal Republic of Nigeria which provides for the concept of immunity clause.

Sylvester Innocent is a 400l Student of Abia State University, Uturu. He is currently the General Secretary of the ABSU BAR COUNCIL. He is an avid reader and a prolific writer.

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