Afe for Vanguard

January 17, 2024

Executive immunity and good government (2), by Afe Babalola

Afe Babalola

Introduction 

Lord Denning, a highly celebrated judge in England and the Commonwealth, once said in the case of Carrier v Union of Post Office Worker and I quote: “be ye ever so high, the law is above you”. 

However, it seems that there is a class of people who are above the law. Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (subsequently referred to as CFRN) provides that the President, Vice President, Governor or Deputy Governor (immune-executive) cannot be sued to, or tried before any court in Nigeria in his or her personal capacity. This applies to any proceeding, be it criminal or civil. Also, the immunity only subsists during the term of office of such immune-executive. 

The fact that the immunity clause is in the Constitution, the highest law in Nigeria, makes the clause unchallengeable and immutable. In Kalu v EFCC, where there was a court order restraining the EFCC from effecting the arrest of Orji Kalu, the sitting Governor of Abia State, the EFCC flouted this court directive and prosecuted the Orji Kalu. The Attorney General of the Federation, AGF, entered a nolle prosequi (which is the power to take over or discontinue any trial before any court in Nigeria) in protection of the rule of law. Orji Kalu enjoyed the intervention of the AGF because he was an immune-executive. 

Under this part of the publication, I will discuss the extent of the protection granted by the executive immunity as presented in section 308 of the CFRN.  

The extent of executive immunity in Nigeria

Executive Immunity is a shield for the presidents, governors and their deputies, regardless of the justification or the justice in the case. It is an absolute prohibition to the courts in favour the immune-executives. 

The immune-executive also has no right to waive the immunity. This is because the immunity is not to the person holding the office, but to the office s/he represents. In Tinubu IMB Securities Plc, the Court of Appeal held that no question of waiver of the relevant immunity by the incumbent officer will be entertained by any court. Likewise in the case of Industrial Commercial Service Ltd v. Balton B.V., the Court of Appeal stated that even where the incumbent fails to rely on the immunity clause, the court will still decline jurisdiction to entertain the case.  

The Court of Appeal further stated in Tinubu IMB Securities Plc that the immune-executive could not even pursue an appeal during his or her period in office. To allow such appeal is tantamount to continuing a proceeding; hence, a contravention to section 308(1)(a) of the CFRN. 

However, this protection is not absolute for the following reasons:

1.     Executive immunity is limited to the tenure of the immune-executive in office: some scholars on this topic alleged that the executive immunity implies that the immune executive cannot be tried on any issue whatsoever, not only during their terms of office, but for every issue in respect of what happened during their term of office. Respectfully, this is not true. 

Section 308(1)(a-c) expressly stated that the immune executive will enjoy such protection for as long as s/he is in the office of President, Vice President, Governor or deputy Governor. Once such a person leaves these offices, the person becomes liable for all civil and/or criminal actions for all wrong s/he may have committed before or during his or her executive position. In Abacha v FRN, the court held that the executive immunity does not extend beyond the tenure in office of the officials mentioned therein. At the end of their tenures, the law can take its full course. This was also the decision of the court in Hassan v Babangida Alis & Ors, and Global Excellence Communication Ltd v Duke. 

2.     The Immune Executive can be investigated for crimes: Section 308(1) specifically stated that the immune-executive cannot be tried in any court, arrested, or imprisoned either in court or elsewhere. Also, the attendance of the immune executive cannot be compelled in court. However, there is nothing in this section that precludes investigations (civil and/or criminal) to be carried out against the immune executive. In Fawehinmi v I.G.P., the Court of Appeal held that section 308 is not a bar on Police investigations. The Court illustrated thus: 

”Suppose it is alleged that a Governor, …  used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept it in a bank or used it to acquire wealth. Now, if the Police became aware, could it be suggested in an open and democratic society like ours that they would be precluded in section 308 from investigating…? The Police clearly have a duty under section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available. The evidence may be useful for impeachment purpose…for prosecution of the said Governor after he has left office”

Hence the immune executive can be investigated for alleged crimes or civil wrongs, provided that they are not questioned, arrested, detained, imprisoned, or asked to make any statement in connection with or in furtherance of the investigation. Afterall, an investigation is not in itself a criminal proceeding. The findings of the investigating body can therefore be used as a ground for impeachment, or used to prosecute the immune-executive after the expiration of his or her tenure in office. 

Whereas many authors on this topic had interpreted the judgement of the Court of Appeal to restrict the right to investigate to the Police alone, this is not the case. Rather, any security agency charged with the obligation to investigate, such as the EFCC or the ICPC, are also accommodated under this exception, provided that the immune executive is in no way invited into the investigation.  

3.     The immunity contained in section 308 does not extend to acts done by the immune-executive outside Nigeria. This was why the former Governor of Bayelsa State, Governor Diepreye Solomon Alamieyeseigha, was arrested in Britain for money laundering, even while he was still the Governor of Bayelsa state. 

4.     The Immune Clause does not protect official acts: Section 308(2) allows the immune-executive to be a party to civil or criminal proceedings, but on two conditions. Firstly, the matter must be instituted in the official capacity of the immune-executive. Secondly, the immune-executive must merely be a nominal party. A nominal party is a person that is joined to a proceeding merely because technical rules of pleading require their presence on record. Such a person is only in the proceeding by name. 

This exception was applied in the case of Shugaba v. Federal Ministry of Internal Affairs & Ors., where the court held that the President could be sued in his official capacity. In President of Nigeria v the Governor of Kano State, the Federal Court of Appeal held in relation to the immune-executive that no action can be maintained in any capacity other than in an official one.

To be concluded

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