THE IMMUNITY CLAUSE UNDER THE NIGERIAN 1999 CONSTITUTION: A CURSE OR BLESSING

Earlier in the week, heard in the news that the Nigerian Senate wants to amend the constitution, in particular the immunity clause due to the recent travails of the embattled Senate President. The rational, according to them, is to protect the number 3 Citizen of the country from “distractions” emanating from Court Proceedings instituted by either the state or individuals.

Ideally, the people under immunity are spelled out under the constitution, but at the same time, there has been a clamor for the immunity clause to be expunged from the constitution as it inadvertently abhors corruption tendencies to those protected by the immunity clause. And i always wonder, what are you scared of that you want to be protected by the immunity clause or what is it that you think you can do and you want the immunity clause in place as your cocoon of safety.

This article i found on The Lawyers Chronicle by Solomon Kehinde clearly articulated my thoughts on it and from a legal stand point for that matter. Happy Reading!

There should be immunity for elected officers; there shouldn’t be immunity for anyone irrespective of the office he/she occupies, and the argument rages on. There has always been serious arguments concerning the provisions of section 308 of the Nigerian 1999 Constitution which provides for immunity for certain elected officers. Though this section appears to be express and clear enough, it has however generated a lot of controversy and debate. The proponents of its abrogation argue that immunity encourages corruption and therefore gives room for bad leadership.

On the contrary, those who support its retention have argued that removing it will allow those at the helm of affairs in the country to be distracted from performing their statutory roles with frivolous litigations.

Before discussing these arguments, it will be apt to reproduce the provisions of Section 308 of the 1999 Constitution. The Section provides thus:

  1. Notwithstanding anything to the contrary in this Constitution, but subject to Subsection (2) of this section:
  1. a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
  2. 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
  3. c) no process 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 any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

  1. The provisions of subsection(1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
  2. This Section applies to a person holding the office of President or vice president, Governor or 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 the functions of the office.”

The overall effect of Section 308 of the 1999 Constitution is that elected officers mentioned in Subsection(3) of that section are protected from arrest, prosecution, imprisonment, civil and criminal proceedings while their tenure lasts. And if there has been a case standing against any of them before being elected into office, such a case shall terminate or at least be put in abeyance during the continuation of their tenure in office. Nigerian courts have reinforced this provision in IMB Securities PLC V Bola Tinubu (2001) 45 WRN1; where the court held that the defendant who was then a state governor was immune from legal proceedings. On the contrary, this section does not prevent these officers from suing other people; see Jonathan V Jones Abiri & Anor Suit No. FCT/CU/505/07.

Interestingly, it was the late Nigerian President, Umaru Musa Yar’Adua who first flew the kite in far away Davos, Switzerland upon his emergence as president in 2007 when he said that “nobody in Nigeria deserves the right to be protected by law when looting public funds”. He went further to argue that the immunity granted public office holders breeds corruption. Other people have also followed the same line of argument. For instance, Alhaji Ibrahim Shekarau, the Governor of Kano State has also thrown his weight behind the abrogation of the immunity clause. There was another group called Champions for Nigeria (CFN) who had even gone ahead to forward a petition to the National Assembly on the need to amend Section 308 of the Constitution. They reeled out countries that jettisoned the idea of immunity for their elected leaders. If one sums up all the arguments of those on this divide one will get only one answer and that is, immunity promotes corruption.

This argument sounds patriotic, but that immunity promotes corruption may not be totally true if one considers the following; corruption is a crime, a crime is committed against the state (whether Federal or state), and the state proceeds against the offender through its law officers. The Attorney-General of the Federation (AGF) is appointed by the President while the Governor appoints the Attorney General of the State. Sections 174 and 211 of the 1999 Constitution provides for the powers of the AGF and Attorneys General of the States respectively. These powers are that they can institute and undertake proceedings; take over and continue; and discontinue proceedings at any stage before judgment. Within the Nigerian context, to allow them prosecute their ‘benefactors’ will be a herculean task. Abrogating the immunity clause and allowing Attorneys General to prosecute whether on corruption or other crimes will serve two unpleasant ends. First, 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. Secondly, 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 and Governors he considers opposing him politically; so also a Governor can use the state Attorney General against his deputy Governor if the two of them operate on different political wave lengths. This was clearly evident during the Obasanjo years. So this may create more problems than it seeks to solve.

To be Continued.

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