THE LAW ON IMMUNITY CLAUSE IN NIGERIA :AN IMPEDIMENT TO FIGHT AGAINST CORRUPTION?

Corruption is a form of dishonest or unethical conduct by a person entrusted with a position of authority, often to acquire personal benefit. Government, or ‘political’ corruption occurs when an office-holder or other governmental employee acts in an official capacity for personal gain.

Immunity clause from a historical perspective presupposes under the common law that the crown cannot be proceeded against since he could do no wrong and more so, no proceedings shall arise against him in his own court. this is enshrined in the common law rule or principle of sovereign immunity which subsequently became unpopular and had to be jettisoned by the English people under the Crown Proceedings Act of 1947 and presently the crown can be sued for his tortious actions[1] when the person bringing such proceedings is of full age and has legal capacity[2].

This doctrine was received into Nigeria and preserved by section 45 (1) of the interpretation Act[3]. and while it has been repealed on England, it continues to apply in Nigeria. in Ramsome kuti V AG fed[4] Kayode Eso JSC questioned the continued application of the rule where he opined that “Nigeria was being more royal than royalty by preserving an abandoned law”. it seems by section 6 (6)of the 1999 Constitution that the immunity is no longer absolute. it provides that the court has powers to decide or determine all matters between persons or between government or authority and any person in Nigeria and to all proceedings relating thereto for the determination of any questions as to the civil rights and obligations of that person.

Notwithstanding, the Nigerian Constitution grants immunity to all its serving presidents, and vice all governors and deputy under section 308 of the 1999 Constitution. this work is intended to find whether there is a need for its removal or continued preservation.

From the wordings of the provision, an incumbent is immune from civil and criminal actions, arrest or imprisonment in pursuance of a court process or from any court process compelling him or requiring his attendance. however, this does not extend forever as full criminal investigation or proceedings may be brought against him in respect of offences allegedly committed by him before or during his tenure immediately after he leaves his political position.

the principle of immunity is justified on the ground that it provides a conducive atmosphere where the public functionaries a can work without distraction of litigation or hindrance by any service of any court process.[5] it is  essentially intended to protect the majesty and dignity of the office not for the individual incumbent as such.

It is worthy of note that the immunity granted the President and vice or governor and deputy does not extend to election petition. this is because election proceedings are not within the context of civil proceedings as intended by section 308 CFRN. thus, they are not immuned from legal proceedings in respect of election petitions [6]. section 246 (1) (b) of the 1999 Constitution recognizes the election petition are not civil proceedings. in Obi v. Mbakwe and others[7] the supreme Court rejected a preliminary objection to the trial of an incumbent Governor seeking to stop proceedings against him. in A.D v. fayose [8] it was held that on matters of election petitions, the immunity of a governor was kept on abeyance and thus he can be subpoenaed to give evidence before the election tribunal. a person holding office cannot waive his immunity even if he does, it is ineffective.[9].

Section 308 CFRN precludes one from arrest or detention. he shall not be imprisoned even by any lawful process or on the order of the court[10].thus he is immuned from civil or criminal court processes requiring or compelling his appearance. thus in Alamieyeseigha v. Yeiwa [11].Mustapha JCA held inter alia: ‘The immunity conferred on the appellant is to prohibit the issuance of any court process, civil or criminal in any way whatsoever against the appellant while he acts in the office to which he is elected.’ 

There are exceptions to the immunity clause.

where the incumbent is only a nominal party in a suit and suits against official acts. this received approval in the case of Abacha v. fawehinmi[12] election petitions as pointed out earlier. 

Immunity is not absolute, it merely suspends liability. the court observed this in the case of Dasuki v. Muazu.[14].where it was held that a military Governor will enjoy no further protection after he left office. Immunity clause has been criticized on the ground that it encourages the commission of civil wrong and crime by public officials mentioned in Section 308(3).hence, they are above the law as long as their tenure lasts. that is why they indulge in carefree looting of the National treasury. waiting till after tenure gives them the opportunity to destroy evidence that may be used to nail them.

While section 308 grants them immunity, it has remained an issue of dispute whether they can sue or bring a private action against others. in Aper v. Plateau publishing Co.[15] the court held that section 267 of the 1979 Constitution gives the Governor immunity and not disability In legal proceedings while in office. this was equally upheld in Onabanjo v. National Concord[16].where kolawole J. observed that “there is no provision in the Republican Constitution which prohibits the Institution of any action by a state Governor in his private capacity”. however, the court of Appeal in Industrial and commercial services Ltd v. Balton B.V [17]. where the court held that he civil action can be instituted against the Governor of cross River state nor can he bring an action by himself and on further appeal to the Supreme Court, the decision was affirmed.

Under the American Constitution the President of the United States can only enjoy immunity for acts related to his official duties and it does not extend to matters arising from unofficial duties. like in the case of Clinton v. jones[18] where the court rejected the contention of President Clinton that immunity should cover him after a lady brought an action against him for illegal sexual advancement while he was the Governor of Arkansas. in Nixon v. Fitzgerald[19].here an action was brought against the president by a fired air force management analyst. the court held that the President was entitled to immunity since it was done in his official capacity as president.

Finally, an American president is not immune to court processes. hence he can be subpoenaed to produce relevant documents. like in the case of United States v. Nixon.[20] where the President was made to bring materials which were vital to investigate his offences.

There has been heated argument from all angle, some against, others in support of the immunity clause enshrined in Section 308 of the 1999 CFRN. the reason for this debate is that the pervasive corruption among those named officials is spawned by the knowledge that they are immune from legal proceedings while in office. the beneficiaries of this privileges has continued to grossly abuse it . however,in as much as there is need to fight corruption, it must be appreciated that the immunity enshrined in our Constitution is meant to preserve the dignity of the office and not to protect the person occupying the office. however, it is recommended that the provision be amendment to limit immunity to only their official acts. and any who is involved in any corrupt practice or criminal activity will be put on trial by law enforcement agencies and if found guilty be jailed. more so, Nigerians should ensure that credible and honourable personalities are elected into public offices.[21]

The trial of the leadership of the National Assembly of the 8th Assembly brings a new circumstance to the fore. should the Office of the Senate President be granted immunity? should the Senate President be seen in court every week undergoing trial? does it not demean the office of the leadership of the house?

There is a need to critically look into these pertinent questions and measures be taken in the right direction. however in my humble opinion they should enjoy immunity as well. to further promote their autonomy in the spirit of separation of power.

Although it may be considered as a factor that promotes corruption in high places, it’s importance for national progress and efficiency in governance cannot be over emphasized.

References :

ABOUT THE AUTHOR 

NJOKU DAVID CHIBUEZE is a law graduate of COOU, the president of the Legal Ideas Forum Int’l. A legal researcher and author.

                      Copyright Reserved 

For knowledge and Justice