By Muhammad Yasir Abubakar (Kainuwa)
1.0 INTRODUCTION
Rule of Law is the law that rules and it has many other principles under it; supremacy of the law and equality before the law amongst many others. Over the years, rule of law has been a subject of agitations, controversies and divergent opinions – what it is and how it should be. The aim of this article is give a general overview of the concept of Executive Immunity in Nigeria and how it limits the applicability of the Rule of law in practice. Although, a cardinal principle of Rule of Law is Equality before the law, it may not always be the case in a modern Democracy, as some individuals enjoy some certain privileges which ordinarily a common man may not enjoy.
Additionally, the concept of Rule of Law being advocated for by various countries of the world, in a bid to implement same, may not fully apply as espoused by the ancient philosophers, but as espoused by modern philosophers due to certain changes and circumstances which have gradually evolved with time.
2.0 EXECUTIVE IMMUNITY
By virtue of section 5 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Executive Powers in the Country are conferred on the President and Vice President at the Federal level and on the Governor and Deputy Governor at the State level while section 308 provides for the scope of the concept of Immunity conferred on the aforementioned citizens as far as Nigeria is concerned
A perusal of the provisions of Section 308 of the Constitution will show that the scope of this immunity clause applies to anybody holding the office of President, Vice President, Governor and Deputy Governor for the period of their tenure in office – the period of their stay in office is a period within which they hold the office in the respective capacities aforementioned. It follows therefore that the immunity clause will not shield the aforementioned persons who have left office. Worthy of note also, is that Immunity clause does not extend to Local Government Chairmen, Ministers, Commissioners or Traditional rulers. It should also be noted that the immunity guaranteed under this section is personal and not official. Meaning that, they can only be sued as President and or Governor respectively and only on matters relating to their actions as Public Office Holders and not in their own name.
The section absolutely prohibits the institution of or in any event of prior suit, the continuation of civil or criminal proceedings against the President, Governors and their Vice or Deputies respectively. Thus, all Nigerian Courts are therefore bound to take judicial notice of this provision even when not pleaded. The effect of Section 308 on proceedings against the aforementioned persons render such proceedings whether civil or criminal, null, void and of no effect. In Industrial & Commercial Serving Nigeria Ltd V. Balton BV, it was held that once one of the parties to the suit belongs to the category of office holders mentioned under Section 308(3), the suit must be struck out and this is the appropriate order the Court should make in such circumstance. Also, in R V. Madan, it was held that immunity need not be expressly pleaded, and that its existence alone renders the exercise of jurisdiction null and void. Thus, the Court is robbed of its jurisdiction where the party to the suit enjoys immunity. It is therefore no surprise that a High Court sitting in Kaduna state struck out an action once instituted by the Economic and Financial Crimes Commission (EFCC) against Former Governor Joshua Dariye of Plateau State on his assumption of office.
Moreover, the Court in A.G. Federation V. Abubakar also construed the meaning of the word “notwithstanding” which was used in opening the section. It held that when the word “notwithstanding” is used in a section of a statute, it is meant to exclude an impending effect of any other provision of that statute or other subordinate legislations so that the said section may fulfill itself. It follows therefore that, as used in section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said section. Thus, the above authority makes Section 308 absolute and not undermined by any statute.
The immunity clause as earlier stated is purposely provided to protect the aforementioned persons from any civil or criminal proceedings that might be instituted against them while serving in their respective capacities.
The question that however arises at this juncture is that in the event of a suit instituted prior to their assumption of office, whether a person can pursue an appeal against a President or Governor while still serving in their respective capacities.
The poser above has received judicial blessings by the Court in the case of Tinubu V. I.M.B Securities Plc, where it held that the combined effect of paragraphs (a) and (c) of subsection (1) of section 308 constitutes a total prohibition to the proceedings and any step taken to proceed with the Appeal pending, will amount to a nullity. This entails that where such a circumstance exists, the Court can suo motu raise the issue of the validity of such Appeal. Consequently therefore, a person to whom section 308 applies cannot while in office, pursue an Appeal before an Appellate Court.
It should be added however, that nothing stops a Governor or President from initiating a suit to obtain remedy from wrongs done to him. This principle was laid down as early as 1981 in Chief Victor Onabanjo V. Concord Press of Nigeria, the Plaintiff, the Governor of Ogun state in his personal capacity sued the Defendant, publishers of Concord Newspapers for Libel, and the High Court held that since the Governor was not expressly incapacitated by any provision of the Constitution, he could sue in his private and personal capacity. This decision has been cited with approval in Duke V. Global Excel Communications Limited. This case commenced at the High Court of Rivers State. The Respondent who at the material time, was the Executive Governor of Cross River State, instituted an action against the Appellants for an alleged libelous publication in the Global Excellence Magazine. Upon service of the writ, a conditional appearance was entered on behalf of the Appellants who also filed a Notice of Preliminary Objection based on the provisions of section 308 of the Constitution, challenging the jurisdiction of the Court to entertain the suit as constituted. The main ground of objection was that in line with the immunity clause enshrined in the Constitution and enjoyed by the Plaintiff under section 308, he too could not institute, maintain, or continue with any legal proceedings, including the present one in any court of law. Swayed by this submission, the trial court held inter alia that a serving Governor could not sue or be sued in his personal capacity while still in office. On Appeal, the Court of Appeal by a majority decision allowed the Respondent’s Appeal by holding that although a serving Governor cannot be sued, he can sue in his personal capacity while in office. On a further Appeal to the Supreme Court, the decision of the Court of Appeal was upheld.
This position of law has been criticized by many jurists and writers for not being a true reflection of the principle of Rule of Law. A tacit point raised by a writer is that if a person who enjoys Executive Immunity decides to institute a civil action in a private capacity and the defendant’s counter claim against him, should the office holder still be accorded immunity against such a counter claim? The writer opined that the answer should be negative as the office holder has unwittingly stripped himself of the constitutional protection. It is difficult to say what interpretation the Courts would give in such a situation. A counter claim by its very nature is regarded as a separate and independent action that may proceed irrespective of the dismissal, stay or discontinuance of the plaintiff’s action.
This being the effect of a counter claim, the Courts may be reluctant to sustain a counter claim against the beneficiary of executive immunity. Also, in A.G. Federation V. Abubakar (supra), The issue was whether having regard to the provisions of section 142(1) and (2) and Section 308 of the Constitution, the Plaintiff being a serving Vice President of Nigeria can have any civil or criminal proceedings including that which is commenced by filing a charge before the Code of Conduct Bureau established in the Fifth Schedule of the Constitution, instituted against him during the tenure of his office. The Court held that this category of people can sue but cannot be sued in their personal capacity during their tenure in office in order to enable them concentrate on the business of governance and shield them from unnecessary distractions (emphasis mine).
It is interesting to note that apart from the immunity clause shielding this category of persons from prosecution; it also prevents them from compellation to give evidence before the Court. Section 175 of the Evidence Act provides that all persons are competent to testify unless the court considers them incapable of understanding questions put to them or of giving rational answers by reason of tender years, extreme old age or disease of the body or mind. Consequently, the President, Governors and their Deputies are all competent witnesses. They are however by virtue of Section 308(1) (c) of the Constitution not compellable witnesses. No Court or even the National Assembly (in some circumstances) can issue a subpoena of whatever form, requesting the Executive either at the Federal or State levels to testify, tender documents or give Oral Evidence. Again, a person to whom Section 308 applies cannot waive such privilege.
3.0 CONCLUSION
The legislative intent for providing immunity clauses in most commonwealth jurisdictions is to protect the dignity and integrity of the holder of an Elective Office. This intention is particularly more fundamental and essential in Nigeria given the fledgling and emerging nature of the nation’s democratic institutions. Removing the immunity clause could open a floodgate of frivolous litigation against elected officers especially from “professional litigants” with the sole aim and objective of distracting the officer from the very serious business of governance.
The investigation of the activities of the incumbent office holders should continue as it does not conflict with the provisions of the section and they can be made to answer to these investigations as soon as they leave office.
This writer is of the candid opinion that the doctrine of immunity is in order in Nigeria and the rationale provided is also valid. However, it is also the writer’s opinion that Limitations should be provided in a separate Legislation, on the Doctrine of immunity to make for its easy amendment to suit the changing political realities of Nigeria considering the cumbersome procedure of amending the provisions of the Constitution. Afterwards, measures should be put in place to curb other limitations of Rule of Law in Practice to wit: Corruption, Illiteracy, Bad Leadership and Lack of Patriotism; and put proper measures in place to enforce the said legislation and the doctrine as a whole. The writer is confident that if these limitations are eradicated and limitations put in place against this doctrine, Rule of Law will enjoy smooth applicability in practice, especially in Nigeria.
4.0 REFERENCES
B.O. Nwabueze, Presidentialism in Commonwealth Africa
Ojo, Constitutional Law and Military Rule in Nigeria
Akande J., Introduction to Nigerian Constitution
Ese Malemi, The Nigerian Constitutional Law
A. Yakubu, Constitutional Law in Nigeria
Bradley A.W., Administrative Law 3rd Edition
C. Okanny, Administrative Law in Nigeria
Sesan Fabamise, Constitutional Immunity Clause and the Fight against Corruption in Nigeria
Nwogu Mary-Imelda Obianuju, The Rule of Law in Governance in Nigeria
O. Igwenyi, Modern Constitutional Law
Mohammed Mustapha Akanbi, Ph.D & Ajepe Taiwo Shehu, Rule of Law in Nigeria
https://bscolarly.com/limitations-of-rule-of-law-5-factors-that-limits-rule-of-law
Muhammad Yasir Abubakar is a fourth year Law Student of Faculty of Law | Bayero University | Kano. He is a Senior Advocate of Bayero University Kano (SABUK), an ardent Reader, Sterling Advocate, Researcher and Writer.
He has special interests in Advocacy, Constitutional Law, Corporate Law Practice and Alternative Dispute Resolution (ADR) amongst others.
He can be reached via E-mail: [email protected], Phone/WhatsApp Number: +2348144020560
