CONSTITUTIONAL IMMUNITY FOR THE EXECUTIVE AND THE CHALLENGES OF GOOD GOVERNANCE IN NIGERIA
Immunity is a word used to describe different things depending on the context and discipline within which it is used. In medical parlance, it may be conceived as a condition of being able to resist a particular disease, especially by preventive development of a pathogenic micro-organism or by countering the effects of its production.' Hence, it may mean developing a resistance to a particular ailment. In law, immunity is a word which has elicited comments from learned scholars and exhausted much judicial ink. Legal concept of immunity originated from the Latin word "immunitae" which was used in ancient Rome to describe the exemption of a person from the performance of a duty, usually a public one. The modern concept of immunity in law emanated from International Law, where sovereign or state immunity, diplomatic and consular immunity and immunity of other persons associated with international organisations and special missions have been amplified." This situation was aided in the period preceding the Second World War by the rapid development of global institutions. Trade and commercial transactions beyond the shores of each nations and the reality that no nation could be an island on its own promote diplomatic relations. Sovereign immunity is otherwise referred to as state immunity. It is the freedom of every state to run its affairs free of interference from other states without its consent. It is the attribute of every state to determine its affairs the way it wants. However, in doing this, the exercise of its sovereignty should not in any way undermine the sovereignty of others.
In the case of any need for domination of a state by the other, it has to be for a purpose of protecting international peace." In International law, courts of a state may not exercise jurisdiction over the affairs of another state. But exemptions are being created by limiting the immunity to governmental rather than commercial transactions to allow for international trade and development. This distinction is of interest to international commercial transaction involving the state and its agents so as to ensure that individual parties dealing with states access justice and foreign courts can assume jurisdiction.
Thus, situations, where commercial activities are the subject of interaction, requesting a state to appear before a court of another state to appear before a court of another state when government action is challenged, such could not be regarded as an infringement of its sovereignty.
Sovereign immunity is the prerogative of the crown or the sovereign to be absolved from prosecution for his wrongful acts in the courts. This doctrine has become part of the Nigerian legal heritage through the Received English Law which consists of common law, statutes of general application in force in England as at 1st January, 1900 and doctrines of equity.
The international aspect of sovereign immunity becomes operational in Nigeria by the adoption of various international treaties.
EXECUTIVE IMMUNITY UNDER THE NIGERIA CONSTITUTION
Executive immunity is the rights enjoyed by the executive arm of government to be free from answering for their torts, and sometimes their criminal charges when they are in office.
Various democratic governments all over the world provide some limitations to legal proceedings for various office holders such as the President, Vice President, State Governors and Deputy State Governors." Executive office holders are given the constitutional shield on personal matters to enable them focus on their duties without any fear of litigations, frivolous or real that could impair on their performance. It also protects office holders from various legal attacks aimed at the executive, the purpose of which is to derail them from achievements of the policies already enunciated for the people.
Section 308 of the 1999 Constitution of the Federal Republic of Nigeria presents the executive immunity in Nigeria in the following way:
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;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either on
pursuance of the process of any court or otherwise, and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied 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.
(2) Provisions of subsection (1) shall not apply to Civil Proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceeding 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, Governor or Deputy
Governor; and the reference in this section to "a period of office" is a reference to the period during which the
person holding such office is required to perform the function of office.
The import of this section is that only the President and the Vice-President of Nigeria and the Governors and Deputy Governors of the 36 states of the Federation are entitled to executive immunity. This form of immunity covers liabilities in civil and criminal matters for the tenure of the office holders. It prevents any form of legal action against them for their tenure of office. Also, any litigation, criminal or civil,
already in court as at the date the office holder is sworn in, stands suspended until the completion of his tenure of office.
In line with the section, the office holder cannot be arrested, detained or imprisoned while in office either as a result of any of his action or inaction prior to his election." In addition, he cannot be summoned by any court to appear before it." However, the office holders can be sued in a civil matter in his official capacity. " He can also be made a nominal party in a civil or criminal proceedings."
It is contended that the constitutional immunity provided a total shield for public office holders for the period of their tenure. In that wise, the office holder is excused from answering to criminal offences assault on the opposition, money laundering, diversion and massive looting of funds which are prevalent before, during and after elections. Such allegations come to nought immediately the President, Vice President, Governors and their Deputies took the oaths of office. Issues that officers in this category are answerable to are limited to electoral petitions as contained in the Electoral Act 2010 (As Amended). Thus, the public office holder may only be sued for matters provided under section 138(1) of the Electoral Act 2010 (As Amended). These are the grounds for the petition:
(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) The election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
Scholars have observed that section 308 is silent on whether or not the immunity clause covered the declaration of assets of the office holders." Hence, it is uncertain whether or not legal proceedings could be instituted against the office holders as stipulated by sections-172 and 209 of the same Constitution for federal and state public services respectfully. For the avoidance of doubt, section 172 states that "A person in the public service of the Federation shall observe and conform to the Code of Conduct".
It is contended that failure of section 308 to comment or give necessary direction on the declaration of assets of this category of public office holders has been providing a shield for them to hang on to ill-gotten assets, which are products of embezzlement, safe from legal proceedings, for their tenure of office. This has compromised in no small measure, the integrity of public service governance in Nigeria. Judicial attitude to the interpretation of the immunity clause has been very strict. In Tinubu v I.M.B Securities PLC the Supreme Court held that once a party to a case, either at trial or appeal stage is identified to be one of those mentioned in section 308(3) of the Constitution, the court is deprived of jurisdiction. In that case, Chief Bola Tinubu who was the appellant in the case was elected and sworn in as Governor of Lagos State during the pendency of the case. Although, this was the first Supreme Court decision on the matter, the Court of Appeal had resolved other cases in this manner.3 Thus, the court established that the office holders covered by section 308 cannot be sued and that any pending litigation against him as at the time he is sworn in as a beneficiary in section 308(3) must cease." In the same case, the apex court further ruled that the officers covered by the executive immunity has a corresponding duty not to institute or continue a civil litigation against any other party, so long he is occupying the office." This position has since changed with the latest decision of the Supreme Court in Global Excellence Communication Ltd v Donald Duke, where it was decided that the petitioner, who was the Governor of Cross River State then, had power to institute action, despite the absolute immunity he enjoyed under the Constitution. He commenced the action at the High Court of Cross River State, Calabar Judicial Division, against the appellant claiming damages for libel published against him in his personal capacity in the Global Excellence Magazine of Tuesday, 11th to 17th May, 2004 and Tuesday, 25th to 30th May, 2004.
The appellants entered a conditional appearance at the trial court and raised a preliminary objection which challenged the inherent power of the court to hear the suit because the respondent was a serving Governor of a State at that time who lacked the power to commence the action in view of section 308 of the Constitution of the Federal Republic of Nigeria, 1999. The trial court upheld the objection by striking out the matter. Not satisfied with this decision, the plaintiff as appellant approached the Court of Appeal which overturned the decision of the trial court.
The respondent/appellant also appealed to the Supreme Court to determine whether going by the language and tenor of section 308, the sitting Governor of a State who could not be sued under the section, could sue another party in his personal capacity to claim damages or other reliefs. It was held that notwithstanding the provision of section 308, the Governor of a State and other office holders contained in subsection (3) of the section cannot be sued in their personal or private capacities, the Constitution was silent on whether or not an incumbent executive office holder can sue in his personal capacity. Based on the decision of the court in the case, the absolute immunity of the executive office holders appears to have been provided to protect them from court actions and or criminal litigations from others particularly during their stay in offices.
In the course of implementation of the immunity clause, corrupt practices and economie and financial crimes, have been committed by the exccutive class. Por example, in 2005, a Governor of Bayelsa State, Chief Diepreye Alamiescgha allegedly looted the coffers of his state with sums of cash Including USD 1, 043, 55. 79 and 556, 455, 893.34 through some of his family members. He could not be brought to justice because of his immunity under the Constitution." In a similar vein, Chief Joshua Dariye, the then Governor of Plateau State was reportedly apprehended in London in 2004 when over £2 million was found in his bank account and 20 million found on him." He too could not be sued for money laundering and corrupt practices in accordance with the law for the reason of the immunity clause. Similarly, when the former Attorney General and Minister of Justice, Chief Bola Ige, was murdered by some unknown persons, and the allegation for committing the offence was directed on the former Governor of Osun State and his Deputy, Chief Bisi Akande and Dr. Iyiola Omisore, they could not be arraigned in court on the allegation." The reason for the disability of the court to hear the allegations against them is the immunity clause as provided in the Constitution.
Thus, the Governor of a state and all others identified in the section are seen to have been above the law at least when they are in office. The recklessness of these officers may have been aggravated by the knowledge that they are no longer subjected to the rule of the land the moment they were elected.
EXCEPTIONS TO EXECUTIVE IMMUNITY UNDER THE NIGERIAN CONSTITUTION.
Section 308 recognises some exceptions to the blanket immunity granted the executive holders in Nigeria. First, where the incumbent holder is only a nominal party, or the suits in court are against official acts. Constitution states clearly that the immunity clause shall not cover a civil action against the President, Vice-President, President, Governor or Deputy Governor in his official capacity or to civil or criminal cases when he is a nominal party.* The implication of this is that the section does not immune an office holder against acts, torts or crimes committed in his official capacity for which his office will be appropriately brought to justice.
The section merely protects the office holder in his personal capacity to answer to those claims and charges. In addition, the section does not provide a cover for the office holder when he is a nominal or supposed party only.
It is contended that the purpose of immunity in the Constitution is to shield the office holder from embarrassment, harassment and distraction which may impair his public office performance were he to be exposed to litigations in his personal capacity and this is necessary if he is to accomplish his mandate.
Another exception is that of election petitioners. The executive immunity does not include election petition proceedings. It may be argued that the rationale for this is because election petitions are "sue generis" and totally divorced from civil actions as contemplated by Section 308.
The non-inclusion of election petitions in the immunity clause of the executive in Nigeria has helped the nascent democracy in many ways. For example, it has helped greatly in establishing the democratic institutions, reducing violence on the part of the opponents and ensure justice to all parties concerned.
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