Immunity Clause Under The Nigerian Constitution: Matters Arising By Binzak Azeez

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 purview among the legal
historians that sovereign immunity stemmed from the English common
law system.

This anachronous principle is established on rex non potest
peccare maxim (the king can do no king). 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 singlehandedly or by
proxy.

Nigeria is a creation of the 1914 Constitution fashioned out by
Lord Frederick Lugard, a British imperialist. Prior to the colonial
arrangement of the fragmented territories that sum up Nigeria, each
territory had its distinct unwritten constitution. English Law
(common law) was incorporated into the Nigeria’s political sphere
alongside the territorial unification arrangement. Subsequently,
the country witnessed constitutional developments which are
classified into two historical epochs; colonial and post – colonial
constitutional amendments. The constitutions promulgated by
colonialists include; Lord Frederick Lugard 1914-1922, Sir Clifford
1922-1946, Arthur Richard 1946-1951, Sir John Macpherson 1951-1954
and Oliver Lyttleton 1954 constitution which laid down the
transition template towards the 1960 independence constitution.

Nigeria attained her political liberty as a sovereign state
under the 1960 independence constitution. In this light, the second
phrase of her constitutional development began. There were vestiges
of colonial blueprints in the 1960 independence constitution.
Despite that the 1963 republican constitution granted full
political autonomy to the country, numerous colonially induced
master plans were retained and incorporated into the 1963
constitution likewise the subsequent constitutional amendments. The
colonialists maintained outright dominance with the legislation of
draconian and repressive laws such as Seditious Offences
Ordinance, Immunity Clause, etc. So far, the post independence
constitutional amendments have been shielding the Nigerian
political elite from proper accountability.

The constitutions enacted and promulgated by both the civilian
and military administrators respectively hampered the combative
tones of average Nigerians against unfavorable and tyrannical
policy of government.

The political institutions are being manipulated to safeguard
the colonial heritage of repression. Immunity clause among other
constitutional provisions that were incorporated into the
post-independence constitutions protects a category of Nigerian
political leaders from legal suits. A hodgepodge promotion of
institutionalized injustice, outright impunity and unbridled
corruption. The Crown Proceedings Act 1947 has embraced a cause of
action against the Crown in English common law. According to
section 2(1) of the Act(supra), “Subject to the provisions of this
Act, the Crown shall be subject to all those liabilities in tort to
which, if it were a private person of full age and capacity…” The
recognition of the Crown’s liability in torts promotes public
interest though the enforcement of the legal liability is limited.
Unfortunately, the Nigerian constitution which imported immunity
clause from the Crown (common law) has failed to place an
equilibrium between the clause and public interest.

The crime committed by various Nigerian governments since
independence is immeasurable. Both the military and civilian
governments have successfully organised extra judicial killings,
genocide, illegal importation of arms, sponsoring militant groups
and other grievous offenses against countless and defenseless
Nigerians without facing trials. Similarly, both governments shared
a common trait in flouting court orders and siphoning the country’s
resources. The democratic dispensation is infamous for organising
discreditable elections. Virtually every election is characterized
with violence, arson, massive rigging in favour of the incumbent
government or their anointed candidates. The state apparatus
becomes a repressive instrument against dissenting voices, the
public treasure turns to private assets and the nation with a
groaning and dying people.

The fundamental purpose of enshrining the immunity clause under
Section 308 of the 1999 constitution as amended, was elucidated by
the Supreme Court in the case of Bola Tinubu vs. IMB Securities Plc
(2001) “The immunity clause is meant to provide a shield for the
person of the President, Vice President, Governor or Deputy
Governor from frivolous or vexatious litigation in respect of
personal or criminal proceedings that would distract him from the
serious business of governance.” However, this purpose has been
manipulated to promote injustice, impunity and corruption.
Therefore, the clause should be reviewed to checkmate the spate of
anomalies being perpetrated under the guise of immunity clause.

In tandem with rising contemporary realities, the Nigerian
judicial system has been debased utterly. The floating of court
orders by the persons who are immune to legal suits is alarming.
Judicial institution must be protected for democracy and good
governance to thrive. Immunity clause at the detriment of judicial
contempt nullifies the sanctity of the rule of law. Moreover,
immunity clause is a sharp contrast against natural law and equity.
All are equal before the law and the law must be equal to
everyone.

No individual should be privileged or discriminated against all
extant laws. Also, “Justice delayed is justice denied.” An
injunction or a relief can be granted to prevent a travesty of
justice in some peculiar cases. While the law recognises an instant
relief in certain peculiar legal suits, justice is raped if the
defendant is protected from legal suits. Immunity clause greatly
abhors corruption. The immunes have turned the national treasury
into private pockets. Corruption hampers the country from progress.
The fight against looting is exigent and should not be selective or
obstructed under any excuse.

In conclusion, immunity clause is unethical for Nigerian
political system. All political leaders must be strictly held
accountable for their brazen actions to resuscitate the country
from wreckage. The National Assembly and the state Houses of
Assembly have failed woefully in exercising their constitutional
roles of curbing executive excess, rascality and gross misconducts.
It was posited in the case of Gani Fawehinmi v. IGP (2002) 8 SCM 77
that “although a governor enjoys immunity from arrest and
prosecution, he doesn’t enjoy immunity from investigation.”

It is evident that the Inspector General of Police (IGP), the
Economic and Financial
Crime Commission (EFCC) and the Independent Corrupt Practices
Commission (ICPC) which are empowered to investigate the persons
conferred with immunity clause take instructions from the Nigerian
president. The institutions have failed to make giant strides in
impartial investigations pending the time that the persons covered
by immunity lose the clause.

Binzak Azeez writes from the faculty of Law Obafemi Awolowo
University, (O.A.U) Ile Ife.

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