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Duhaime’s Law Dictionary defines immunity as an exemption that a person enjoys from the normal operation of the law such as a legal duty or liability, either criminal or civil. Black’s Law Dictionary 7th ed., on the other hand, defines immunity as any exemption from a duty, liability, or service of process; esp., such an exemption granted to a public official. In Nigeria, such operation of law is enshrined in Section 308 of the 1999 Constitution as amended. It states in Section 308(1)(a) that 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 for or issued;…(3) This section applies to a person holding the office of President or Vice – President, Governor or Deputy Governor ….
There has been arguments from different quarters on the desirability or otherwise of this provision in our constitution. To some, it should be deleted and all the beneficiaries stripped of their immunities. To others, it should be partially lifted to shield the beneficiaries only from civil procedures rendering them liable to criminal proceedings. To some others, it should be retained.
Let us note preliminarily that from the face of Section 308(1)(a), the immunity is not permanent, it is temporary, which lasts only during the period of office of the beneficiary. This means that once the person completes his tenure, the immunity lapses and he becomes liable for his actions. Also the statue of limitation does not run during his period in office. This means that the consequences of whatever he does during his office will not lapse even if there is statutory time limit to the action. Whatever he does will hunt him after his tenure. See Section 308(2).
The immunity is not absolute, it is merely restrictive. By the combined effects of Sections 143 and 188, the constitution has mandated the Legislature to try the Executive for any act of misconduct even during his period in office and if found wanting, remove him from office and render him immediately liable to his actions. We recall that Governor Diepreye Alamieyeseigha was impeached by the Bayelsa House of Assembly and was immediately arrested, tried and convicted for offences while in office, before the expiration of his tenure. The immunity, therefore, merely restricts the number of persons that can try the executive while in office.
We note that the president of the country enjoys immunity from prosecution even if the constitution is silent on it. This is because he is the Commander-in-Chief of the Armed Forces and no member of the force can effect his arrest while in office even if he offends the law. You can only impeach him or overthrow him. A case in hand is the Mueller’s Report in US which found President Trump liable of possible obstruction of justice, but couldn’t indict him because he is a sitting president even when the American Constitution is silent over the issue of immunity. So, the only persons who are protected from criminal proceedings by the express provisions of immunity in the Constitution are the Vice President, Governors and their Deputies.
In a developing nation, the benefits of the immunity clause cannot be overemphasized. First, it is a provision put in place to enable a president or governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and the difficulty which may arise if he is being constantly pursued and harassed with court processes of a civil or criminal nature while in office. The Supreme Court even stated in the case of Amaechi vs INEC (2008) 5 NWLR (PT. 1080) 227 that the provision is designed to protect the dignity of the office. Can you imagine if a governor is allowed to face civil actions from an average of about four million persons in his state or the president from 200 million persons in this litigation-prone country. Can you imagine if a sitting governor is charged to court on criminal charges by the Federal Government, which by virtue of the law, is required to sit daily and criminal procedure requires personal attendance of the accused till judgement is delivered. Which time and dignity will he have to work?
For the advocates of the removal of the immunity clause, have you considered that the executive appoints the Attorney General, who has the monopoly to decide who to try and who to discontinue his trial? Do you really think any Attorney General can prosecute his boss while in office even if he does not have immunity? Don’t you think the executive will use state resources to conduct his cases, both civil and criminal, while in office if he doesn’t have immunity and who loses? Of course, the people will lose because it is their resources that will be used to conduct the cases. But if he is sued or prosecuted after leaving office, he will fight for his freedom with his own resources because he doesn’t have access to state resources anymore.
The most frightening prospect of removing the immunity clause is the possibility of a president, who might use the opportunity to remove his vice or a governor of a state through spurious criminal proceedings. For the avoidance of doubt, it has happened before in our democratic experience even with immunity for these classes of people and we must learn from it. During President Obasanjo’s regime, when his Vice President, Atiku Abubakar disagreed with him as to who will succeed him and joined another party, the president unilaterally declared the office of the vice president vacant for daring to contest for the Presidency. The court restored him. The president went further to constitute a panel to indict his vice for corruption. The court came to his rescue by holding that it is only a court of law constituted in a manner to guarantee its independence and impartiality that can convict a person and deny him the right to contest. Because of his immunity, the president couldn’t go further to the court to secure his conviction and stop him from running.
Were it not for the immunity, all the president needed to do was to instruct the Attorney General to charge his vice to court and source for a convenient court to convict him speedily and stop him from running. You can imagine the instability this would have caused to our fledgling democracy. Considering the political clout of the former vice president then and how young our democracy was, about seven years, the instability was able to truncate our democracy. Some governors, but for the immunity, would have suffered the same fate of removal from office during that era because of their principled confrontation of the Federal Government with the attendant political instability on the nation.
It is obvious that immunity to these persons is a shield for our democratic stability not a permanent protection of them from prosecution. We must work towards preserving it in our constitution and persuade our Legislature to remove from office any president, vice, governor or deputy, who has become incurably bad, incompetent or corrupt in office so he can face the consequences of his actions even before the expiration of his tenure.
