By Hameed Ajibola Jimoh Esq.
![image](/2020/10/lawreport.jpg")
![image](/2021/05/lawp.jpg")
There have been several occasions where the executive arm of
government at either the Federal or the State Government level
(including some of their established law enforcement and security
agencies or officers in their respective civil service) disobeyed
court’s orders and little or nothing has always or almost been done
to bring such persons to order under the law, especially on
contempt of court due to the cover or immunity of the executive arm
of government conferred by section 308 of the 1999
Constitution of the Federal Republic of Nigeria (as amended)-herein
after referred to as the Constitution- against any
prosecution while in office which has since been abused by this
executive arm of government with due respect. This constitutional
amendment period in my humble view (which is a period where the
amendment of the 1999 Constitution wholly is ongoing) would serve
the opportunity of an exemption of contempt of court from
executive’s immunity as conferred by the section 308 of
the Constitution (supra), hence, this topic as a
recommendation to improve and promote the rule of law and
justice.
![image](/2021/01/payne-alex.jpg")
The ‘Executive’ referred to here in
this paper refers to one of the three arms of government as
established by the doctrine of separations of powers, the two other
arms being ‘the legislature’ and
‘the judiciary’ respectively. The
creation of the ‘executive’ has been made
by section 5 of the Constitution.
The above section 5 having created the ‘Executive’
arm of government, in my humble submission, same
covers ‘the President of the Federation’, ‘the Government of the
Federation’ and all other appointees of these two Chief Executive
Officers and other officers in the public service of the Federation
and of the States of the Federation. There and then, the issue of
‘executive disobedience of court’s
orders’ by either of the Chief Executive Officers and
especially some law enforcement and security agencies of government
(and in some other instances by some officers in the civil service
or public service) acting under the control of these Chief
Executive Officers has always been to the debase on the
‘independence of the judiciary’,
especially in regard to the obedience to the summons of a court of
law and or the decision and or orders made by a court of law
against and or affecting any of these government’s agencies. This
‘executive disobedience’ either being infuriated by the possession
of firearm and ammunition and other arsenal of the State to the
oppression, intimidation and or cohesion of the judiciary and its
independence is in my humble view indeed an affront on the
principle of democracy. I have observed that it has always been
very difficult if not nearly impossible for a court of law to
enforce its powers on either the President or the Governor of a
State if same disobeys its orders and this is made impossible by
the concept of ‘immunity’ as a
restrictive clause against the court and or any person to punish
those executives for contempt. The said section 308 of
the Constitution provides thus: ‘(1)
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 in 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 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. (2) 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. (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
“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.’
I am of the recommendation that for there to be an effective
‘independence of the judiciary’, the
provisions of section 308 of the
Constitution which provides for the immunity of the
executive arm of government must be amended to ‘exempt
punishment for contempt of court’ from the
restrictions so that the government does not need to wait for the
executive concerned to conclude his term(s) in public office before
he could be punished for contempt of court even if for an
imprisonment of at least a 24 hours would be served on such
executive officer disobeying the order made by a court of law
without such order having been set aside by a competent court of
law empowered to do so. If this contempt of court is exempted from
the restrictions and or immunity clause, then, the executive in my
humble view, would have no option than to always obey the order of
court. It might be argued that if the executive has been made to
face trial, no one would have been able to administer the executive
office. I respectfully beg to differ on this likely opposing
argument. My argument and submission are because, there is a deputy
to deputise for the elected office holder while in such a case
where both the chief executive officer and his deputy are found
suspected to be culpable, then, there are provisions in the
constitution on what should happen in a situation where there is
incapacity of these executives which can also save the situation of
punishment for contempt. See for instance section 146
(1) and (2) of the Constitution which provides thus ‘(1) The
Vice-President shall hold the office of President if the office of
President becomes vacant by reason of death or resignation,
impeachment, permanent incapacity or the removal of the President
from office for any other reason in accordance with section 143 or
144 of this Constitution. (2) Where any vacancy occurs in the
circumstances mentioned in subsection (1) of this section during a
period when the office of Vice-President is also vacant, the
President of Senate shall hold the office of President for a period
of not more than three months, during which there shall be an
election of a new President, who shall hold office for the
unexpired term of office of the last holder of the
office.’ The good news is that Nigeria is
likely not to have any case of such executive disobedience of
court’s orders that would have warranted punishment for contempt of
court because none of the executives would like to be jailed and be
embarrassed in the public glair! On the usurpation of judicial
powers by the executive arm of government, the court of law has
held as follows in the case of ABBA v. JAMB & ANOR
(2014) LPELR-24205(CA). “Judicial powers
under Section 6 of the 1999 Constitution are not vested in private
persons, administrative tribunals or other authorities. The
Constitution is clear as to who should perform judicial acts. And
since it is the exclusive function of the Judiciary to exercise
judicial function, any member of the executive or of an
administrative body who interferes with those functions must be
prepared to face the consequences of such interloping conduct by
way of an action by a person aggrieved.”.
Finally, I therefore humbly recommend that
‘Executive Immunity’ should not cover
judicial punishment for contempt of court. So, the legislature (at
both the National Assembly and the Houses of Assemblies of States)
has roles to play in the amendment of the constitutional provisions
in section 308 on immunity of the
executives, especially since the amendment of the
1999 Constitution’s process is still ongoing, this is indeed the
right time to effect this recommendation.
Email: hameed_ajibola@yahoo.com[1]
By Hameed Ajibola Jimoh Esq.
There have been several occasions where the executive arm of
government at either the Federal or the State Government level
(including some of their established law enforcement and security
agencies or officers in their respective civil service) disobeyed
court’s orders and little or nothing has always or almost been done
to bring such persons to order under the law, especially on
contempt of court due to the cover or immunity of the executive arm
of government conferred by section 308 of the 1999
Constitution of the Federal Republic of Nigeria (as amended)-herein
after referred to as the Constitution- against any
prosecution while in office which has since been abused by this
executive arm of government with due respect. This constitutional
amendment period in my humble view (which is a period where the
amendment of the 1999 Constitution wholly is ongoing) would serve
the opportunity of an exemption of contempt of court from
executive’s immunity as conferred by the section 308 of
the Constitution (supra), hence, this topic as a
recommendation to improve and promote the rule of law and
justice.
The ‘Executive’ referred to here in
this paper refers to one of the three arms of government as
established by the doctrine of separations of powers, the two other
arms being ‘the legislature’ and
‘the judiciary’ respectively. The
creation of the ‘executive’ has been made
by section 5 of the Constitution.
The above section 5 having created the ‘Executive’
arm of government, in my humble submission, same
covers ‘the President of the Federation’, ‘the Government of the
Federation’ and all other appointees of these two Chief Executive
Officers and other officers in the public service of the Federation
and of the States of the Federation. There and then, the issue of
‘executive disobedience of court’s
orders’ by either of the Chief Executive Officers and
especially some law enforcement and security agencies of government
(and in some other instances by some officers in the civil service
or public service) acting under the control of these Chief
Executive Officers has always been to the debase on the
‘independence of the judiciary’,
especially in regard to the obedience to the summons of a court of
law and or the decision and or orders made by a court of law
against and or affecting any of these government’s agencies. This
‘executive disobedience’ either being infuriated by the possession
of firearm and ammunition and other arsenal of the State to the
oppression, intimidation and or cohesion of the judiciary and its
independence is in my humble view indeed an affront on the
principle of democracy. I have observed that it has always been
very difficult if not nearly impossible for a court of law to
enforce its powers on either the President or the Governor of a
State if same disobeys its orders and this is made impossible by
the concept of ‘immunity’ as a
restrictive clause against the court and or any person to punish
those executives for contempt. The said section 308 of
the Constitution provides thus: ‘(1)
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 in 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 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. (2) 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. (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
“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.’
I am of the recommendation that for there to be an effective
‘independence of the judiciary’, the
provisions of section 308 of the
Constitution which provides for the immunity of the
executive arm of government must be amended to ‘exempt
punishment for contempt of court’ from the
restrictions so that the government does not need to wait for the
executive concerned to conclude his term(s) in public office before
he could be punished for contempt of court even if for an
imprisonment of at least a 24 hours would be served on such
executive officer disobeying the order made by a court of law
without such order having been set aside by a competent court of
law empowered to do so. If this contempt of court is exempted from
the restrictions and or immunity clause, then, the executive in my
humble view, would have no option than to always obey the order of
court. It might be argued that if the executive has been made to
face trial, no one would have been able to administer the executive
office. I respectfully beg to differ on this likely opposing
argument. My argument and submission are because, there is a deputy
to deputise for the elected office holder while in such a case
where both the chief executive officer and his deputy are found
suspected to be culpable, then, there are provisions in the
constitution on what should happen in a situation where there is
incapacity of these executives which can also save the situation of
punishment for contempt. See for instance section 146
(1) and (2) of the Constitution which provides thus ‘(1) The
Vice-President shall hold the office of President if the office of
President becomes vacant by reason of death or resignation,
impeachment, permanent incapacity or the removal of the President
from office for any other reason in accordance with section 143 or
144 of this Constitution. (2) Where any vacancy occurs in the
circumstances mentioned in subsection (1) of this section during a
period when the office of Vice-President is also vacant, the
President of Senate shall hold the office of President for a period
of not more than three months, during which there shall be an
election of a new President, who shall hold office for the
unexpired term of office of the last holder of the
office.’ The good news is that Nigeria is
likely not to have any case of such executive disobedience of
court’s orders that would have warranted punishment for contempt of
court because none of the executives would like to be jailed and be
embarrassed in the public glair! On the usurpation of judicial
powers by the executive arm of government, the court of law has
held as follows in the case of ABBA v. JAMB & ANOR
(2014) LPELR-24205(CA). “Judicial powers
under Section 6 of the 1999 Constitution are not vested in private
persons, administrative tribunals or other authorities. The
Constitution is clear as to who should perform judicial acts. And
since it is the exclusive function of the Judiciary to exercise
judicial function, any member of the executive or of an
administrative body who interferes with those functions must be
prepared to face the consequences of such interloping conduct by
way of an action by a person aggrieved.”.
Finally, I therefore humbly recommend that
‘Executive Immunity’ should not cover
judicial punishment for contempt of court. So, the legislature (at
both the National Assembly and the Houses of Assemblies of States)
has roles to play in the amendment of the constitutional provisions
in section 308 on immunity of the
executives, especially since the amendment of the
1999 Constitution’s process is still ongoing, this is indeed the
right time to effect this recommendation.
Email: hameed_ajibola@yahoo.com[1]