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An Appraisal of the Functional Necessity of the Immunity Clause in the Political Governance of Nigeria

Published online by Cambridge University Press:  13 March 2015

GN Okeke  and
CE Okeke
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Abstract

Immunity is an exemption conferred on a person in order to protect him from litigation or persecution. The Constitution of the Federal Republic of Nigeria 1999 as amended accords immunity to the president, vice-president, governors and deputy governors only. The import of this constitutional conferment is that no civil or criminal proceedings should be instituted against them while in office. This singular feature of the immunity clause emphasizes the functional necessity of the immunity which the constitution canvasses for these political office holders. A trial relating to any crime committed by any of them can commence after their tenure in office expires. This raises the issues that evidence against them might have been destroyed, prosecution witnesses may die before the trial commences and changes in the law can enable them to evade justice.

Type
Research Article
Information
Journal of African Law , Volume 59 , Issue 1 , April 2015 , pp. 99 - 120
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Copyright
Copyright © SOAS, University of London 2015 

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References

1 See the 1999 Constitution, sec 308.

2 The iniquitous rule whereby the government was and is immune or not liable for tort or breach of contract committed by its servants is an English doctrine of great antiquity. See Oluyede, PConstitutional Law in Nigeria (1992, Evans Brothers Nigeria Publishers Limited)Google Scholar at 465.

3 The reason why the English doctrine of sovereign immunity came to be applied to the United States is one of the mysteries of legal evolution. See id at 467. In the context of the 1999 Constitution, sovereignty belongs to the people of Nigeria and, if there is anything like sovereign immunity, it should be applied in favour of the people.

4 The notion of immunity must also be distinguished from the notion of non-justiciability. See Dixon, M and McCorquodale, RCases and Materials in International Law (1999, Blackstone Press Limited)Google Scholar at 354. Immunity can be defined jurisprudentially as the corollary of a duty imposed upon the territorial state to refrain from exercising its jurisdiction over a foreign state. See ibid.

5 The principle of equality before the law is significantly reduced by the sustenance of immunity in a democratic system where the rule of law operates. The aspect of the functionality of the office holders as the basis for granting immunity to certain individuals as against others is highlighted in the Nigerian legal system at the expense of maintaining the machineries of social justice. It is a generally acceptable adage that justice delayed is justice denied.

6 It is important to note that functional immunity cuts across the three branches of government: the legislature, the executive and the judiciary. The immunity covered by the 1999 Constitution is intended for the executive branch of government. However, legislative immunity protects legislators from law suits with regard to anything they do or say during the proceedings of the house. In the same vein, judicial immunity protects judicial officers from litigation arising from whatever they say or do during court proceedings.

7 The delay of litigation, projected by the cloak of immunity on governors, deputy governors, the president or the vice-president, defeats a very important aspect of democracy, which is equality of persons, and runs counter to the adage that a stitch in time saves nine. Putting a wrong right at the wrong time sends a wrong signal that, although all men are equal, some are more equal than others.

8 (2005) 12 SCM 293 at 311.

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19 The 1999 Constitution, sec 308(2).

20 (1996) 6 NWLR (pt 660) 228.

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40 According to Marvin Frankel,“[t]here is dignity and security in the assurance that each of us - plain or beautiful, rich or poor, black or white, tall, curly, whatever is promised treatment as a bland, fungile ‘equal’ before the law.” See Frankel, MECriminal Sentences: Law Without Order (1972, Hill &Wang)Google Scholar at 11.

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47 Appadorai The Substance of Politics, above at note 36 at 279.

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50 (2001) 16 NWLR (pt 740) 670.

51 Above at note 17 at 24.

52 (2004) 7 NWLR (pt 871) 63 at 100.

53 (2002) FWLR (pt 96) 552; (2002) 7 NWLR (pt 767) 581 at 601.

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55 Oladesu “Should immunity clause be retained?”, above at note 48.

56 (2003) 8 NWLR (pt 822) 223.

57 Secs 24 and 25 of the Police Act, Cap P19 LFN 2004.

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62 See W Uwujaren and A Orimolade “How Dariye had his day” (29 November 2004) TELL (Nigeria) at 34.

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64 Alamieseyiegha v Yeiwa, above at note 53.

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66 See <http://www.thefreedictionary.com/no+respecter+of+persons> (last accessed 25 January 2013).

67 AA Owoade “The doctrine of the rule of law: A necessity to democratic governance”, available at: <http://www.unilorin.edu.ng/publications/owoade/The%20Doctrine%20of%20the%20Rule%20of%20Law.pdf> (last accessed 25 January 2013).

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69 Tinubu, above at note 50 at 714.

70 Fawehinmi, above at note 20 at 352. See also in Soliven v Makasiar 167 SCRA 393, 1988, where the Supreme Court of the Philippines held that the grant of executive immunity ensures that the exercise of presidential duties and functions is free from any hindrance or distraction, considering that the office of chief executive is a job which, aside from requiring all of the office-holder's time, also demands their undivided attention.

71 (2000) FWLR (pt 1) 164.

72 Culled from Ekwenze, AMNigerian Criminal Law Cases: A Synoptic Guide (2006, Snapp Press Ltd)Google Scholar at 703.

73 Ibid.

74 5 US 154 (1803).

75 520 US 681 (1997).

76 Facts culled from Arishe “Reconsidering executive immunity”, above at note 23.

77 F Ayanruoh “Absolute immunity for the executive is bad for Nigeria” (2 February 2009) Sahara Reporters, available at: <http://saharareporters.com/article/absolute-immunity-executive-bad-nigeria> (last accessed 25 January 2013).

78 Ibid.

79 See sec 45(1) of Interpretation Act (Cap 89) Laws of the Federation of Nigeria and Lagos 1959.

80 It should be noted that sec 2 of the Crown Proceedings Act, 1947, abolished the doctrine of sovereign immunity in Britain.

81 The 1979 Constitution, sec 6(6)(b).

82 The 1999 Constitution, sec 6(6)(b).

83 The 1979 Constitution, sec 267.

84 Oladesu “Should immunity clause be retained?”, above at note 48 at 27.

85 A Orabuchi “Bobbing respect for rule of law”, available at: <http://www.kwenu.com/publications/orabuchi/2006/10bobbing_respect.htm> (last accessed 11 January 2015).