Afe for Vanguard

January 31, 2024

Executive immunity and good government (4), by Afe Babalola

Afe Babalola

In the previous publication on this topic, opinions in support of Executive immunity and vice versa were considered. It is obvious that the executive immunity has been exploited by chief executives to the detriment of the governed. In 2013, Ekweremadu stated that above $100 billion had been looted by immune executives, many of which have not been prosecuted till date. Sadly, Nigeria has lost a lot of economic wealth, social infrastructure, and human capital under the cover of executive immunity. The question I ask myself is: Can there be effective governance if the executive immunity is removed?

To answer this question, I want to consider the practice in Tanzania, the Philippines and the United States of America. 

Executive Immunity in Tanzania In Tanzania, the rights of individual citizens and the dignity and integrity of the office of the chief executive are recognised and protected. Firstly, Tanzania’s constitution provides in section 11 of the 1965 Constitution that the president can be sued in his personal capacity for civil actions subject to the following conditions:

1. the president must be given 30 days written notice of the intention to institute an action. This must be accompanied by a complaint which gives information about the nature of the proceedings, the cause of action, the name, description, and place of residence of the plaintiff. This must be served on the permanent secretary, principal, or private secretary to the president (not the president personally). It can also be sent by prepaid registered post to the permanent secretary at the state house. 

This first requirement must be complied with, otherwise, no legal process can be served or executed within the state house, or at the president’s other official residence. However, where the aggrieved individual has tried to comply with this first requirement, but is unable to, the court may intervene by compelling the officials to render all reasonable and necessary assistance to enable service of the writ. 

2. The matter must be instituted in the High Court and not in any other court. 

3. Where the action succeeds, the only relief that can be issued against the executive is a declaration. No other kind of order, judgement, decree, or relief can be given against the president while he is in office. This declaration must be honoured by the president. Where the declaration is not honoured within 90 days of the president’s vacation of office and on application of the said plaintiff, the court will convert the declaration into a positive relief (i.e. ordering a specific action, relief, or damages). 

Unlike what is practised in Nigeria, there is no bar on the right to compel the appearance of the president in court personally, or to produce any person or thing. This is a clear demonstration of equality before the law, while maintaining the dignity of the office of the chief executive. 

There is no equivalent provision for the governor in Tanzania. 

Executive Immunity in the Philippines

Executive immunity was rejected in the Philippines where corruption is alleged. On 4th April 4, 2001, Hoseph Ejericito Estrada was reported to the office of the Ombudsman (the Sandiganbayan), which handles criminal charges against incumbent and former state officials. Seven criminal charges were issued against Estrada, including bribery, misuse of public funds, unexplained wealth, abuse of authority and economic plundering (which was a criminal offence punishable by death). Estrada was arrested and charged to court. Estrada appealed against the arrest because of his immunity. The Supreme Court rejected his appeal, denied his immunity, and acceded to his arrest and subsequent trial. By this stance, the court proved that there are no barriers to justice. Also, in Soliven v Makaiser, the court held that the immunity granted in Philippines fall within the restrictive immunity. This is different from the absolute immunity practised in Nigeria.   

Executive Immunity in the United States of America

The approach to executive immunity in the United States of America is different from all the above. In Nixon v Fitgerald, it was decided that the president has absolute immunity in civil matters. However, he does not have absolute immunity for criminal matters. He can be charged for criminal offences committed during his term office, whether it is official or non-official. 

In Jones v Clinton, the court held that the president enjoys absolute immunity on for civil matters only. This immunity does not extend to criminal wrongs committed before or during their tenure in office. The Governor of Illinois of the United States, Rod Blagojevuch, when having a discussion on who may replace Obama in the Senate, said that the Senate seat is a valuable thing that you don’t just give away. He was arrested, charged, and convicted for wanting to sell the vacant seat in the Senate.   

The Reality of Nigeria’s Executive Immunity

It is obvious that the practice of absolute executive immunity, as practised in Nigeria, is obsolete for a progressive democracy. According to former President of Nigeria,  Olusegun Obasanjo: “It is stupidity to keep the clause. As soon as you are caught committing an offence while in office, you should be charged for the offence at once.” According to Alhaji Nuhu Ribadu, the former chairman of the Economic and Financial Crimes Commission, “unless we remove this immunity clause, it will be difficult to address the problem of corruption in Nigeria.”

The late Alhaji Musa Yar’Adua, while addressing the representatives of multi-national corporations under the ‘Partnership against Corruption Initiative’ said: “The next constitutional amendment will strip these public officials of the immunity and I am personally in support of that. Nobody in Nigeria deserves the right to be protected by law when looting public funds.” Chief Emeka Anyaoku, the former Secretary General of the Commonwealth, said that: “When immunity clause is removed, all forms of corruption will drastically reduce in Nigeria. Since the immunity clause comes from the top, the other people will follow suit. The president and the governors should not have any immunity from criminal offences. They should only have immunity for civil offences because constant lawsuits on civil offence will distort the day-to-day running of the country.”

Recommendations 

Taking into cognisance the experiences from the practice of executive immunity in Nigeria over the years, vis-à-vis the practice in other parts of the world, it is in the best interest of the people that we should not retain the immunity clause. In view of the above therefore, it is recommended as follows: 

1. The Ombudsman: there is an established institution in the Philippines charged with investigating and prosecuting executives for crimes committed before and/or during their tenure in office. Nigeria can emulate this practice. I suggest that this body should not be under any established body already in existence in Nigeria. The ombudsman in Nigeria should be comprised of senior lawyers who have distinguished themselves in the fight against corruption. This body should be given the mandate to investigate the immune executives while in office, and to prosecute them immediately they leave office, where they are found to have committed any crime while in office. If this body refuses to initiate the action, it can be compelled by an order of mandamus, which is the power to compel a public servant to do his or her statutory duty. This will prevent unresolved cases of executive corruption. 

2. Absolute immunity is becoming a thing of the past in progressive democracy. Where a chief executive commits a crime in office, he /she should be prosecuted, even while in office. This will have a dual effect of sanitising the office of the chief executives and making them answerable to the electorate who elected them to the office. This is an imitation of what had been practiced successfully in the Philippines and the United States, on the one hand, and in accord with the recommendation of Obasanjo and Anyaoku on the other. 

3. Pre-Election Screening: Candidates with pending criminal and/or civil matters in court, which puts their character to question ought to be investigated and restrained from taking responsible roles covered by immunity clause, until such matter comes to finality. This does more to sanitise the office of the chief executives, reducing the incidences of litigation in office.  

4. Corruption should be exempted from the cover of the immunity clause: Considering the peculiarity of Nigeria, corruption, fraud, embezzlements, and related offences which translates to an abuse of public offices, have been the pillars for the abuse of executive immunity. Hence, acts which amounts to an abuse of public offices should not be protected under executive immunity. There should therefore be a law to limit the executive immunity, making the abuse of public offices punishable immediately, whether the immune executive is still in office or otherwise.  

To be concluded

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