Dunmade Onibokun – Scope of Immunity Clause on Nigerian Public Officers
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| President Muhammadu Buhari |
By
virtue of the Nigerian 1999 Constitution, certain public officers are granted
immunity. This post will be analyzing the relevant provision of the constitution
providing for immunity and taking a look at the extent of the cover provided by
the immunity clause.
virtue of the Nigerian 1999 Constitution, certain public officers are granted
immunity. This post will be analyzing the relevant provision of the constitution
providing for immunity and taking a look at the extent of the cover provided by
the immunity clause.
The
8th edition of the Black’s Law dictionary defines immunity as ‘any
exemption from a duty, liability or service of process; especially such
exemption granted to a public official. L.B Curzon’s, A Dictionary of Law, further
defines immunity as a “freedom or exemption from some obligation or penalty.
8th edition of the Black’s Law dictionary defines immunity as ‘any
exemption from a duty, liability or service of process; especially such
exemption granted to a public official. L.B Curzon’s, A Dictionary of Law, further
defines immunity as a “freedom or exemption from some obligation or penalty.
The
relevant provision of the constitution which provides for immunity for public
officers is Section 308, of the 1999 Constitution, Laws of the Federal
Republic of Nigeria (2004). The law provides that –
relevant provision of the constitution which provides for immunity for public
officers is Section 308, of the 1999 Constitution, Laws of the Federal
Republic of Nigeria (2004). The law provides that –
308. (1) Notwithstanding anything to the contrary in
this Constitution, but subject to subsection (2) of this section –
this Constitution, but subject to subsection (2) of this section –
(a) no civil
or criminal proceedings shall be instituted or continued against a person to
whom this section applies during his period of office;
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 in pursuance of the process of any court or otherwise; and
to whom this section applies shall not be arrested or imprisoned during that
period either in 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:
the appearance of a person to whom this section applies, shall be applied for
or issued:
Provided that in ascertaining whether any
period of limitation has expired for the purposes of any proceedings against a
person to whom this section applies, no account shall be taken of his period of
office.
period of limitation has expired for the purposes of any proceedings against a
person to whom this section applies, no account shall be taken of his period of
office.
(2) The
provisions of subsection (1) of this section shall not apply to civil
proceedings against a person to whom this section applies in his official
capacity or to civil or criminal proceedings in which such a person is only a
nominal party.
provisions of subsection (1) of this section shall not apply to civil
proceedings against a person to whom this section applies in his official
capacity or to civil or criminal proceedings in which such a person is only a
nominal party.
(3) This
section applies to a person holding the office of President or Vice-President,
Governor or Deputy Governor; and the reference in this section to “period
of office” is a reference to the period during which the person holding
such office is required to perform the functions of the office.
section applies to a person holding the office of President or Vice-President,
Governor or Deputy Governor; and the reference in this section to “period
of office” is a reference to the period during which the person holding
such office is required to perform the functions of the office.
From
the provisions of Subsection 3 of the above statute, it is clear that the only
persons granted immunity in the Constitution include; the President,
Vice-President, Governor and Deputy Governor.
the provisions of Subsection 3 of the above statute, it is clear that the only
persons granted immunity in the Constitution include; the President,
Vice-President, Governor and Deputy Governor.
Also
from Sub -section 1 of the law, it also states clearly that the above mentioned
people cannot be arrested, charged to court and no court has the power to compel
their appearance during the period in which they hold this office. Except, it’s
a civil proceedings, in which the public official is a party due to his
official capacity. In essence, neither the Police, EFCC nor any other security
agency in the country can arrest any of these public officials.
from Sub -section 1 of the law, it also states clearly that the above mentioned
people cannot be arrested, charged to court and no court has the power to compel
their appearance during the period in which they hold this office. Except, it’s
a civil proceedings, in which the public official is a party due to his
official capacity. In essence, neither the Police, EFCC nor any other security
agency in the country can arrest any of these public officials.
This
provision has caused a lot of debate, with some calling for the removal of the
shield upon which these public officials are covered by virtue of a
Constitutional review deleting the immunity clause. A strong reason they say is
because no one should be above the law. It
should however be noted that the reason behind imputing the immunity clause in
the first place was the protection of public interest wherein the interest of
the nation in the preservation of its highest offices outweigh the inconvenience
to the individual for the temporary postponement of prosecution and to save
such public office holder from harassment while the person is in office.
provision has caused a lot of debate, with some calling for the removal of the
shield upon which these public officials are covered by virtue of a
Constitutional review deleting the immunity clause. A strong reason they say is
because no one should be above the law. It
should however be noted that the reason behind imputing the immunity clause in
the first place was the protection of public interest wherein the interest of
the nation in the preservation of its highest offices outweigh the inconvenience
to the individual for the temporary postponement of prosecution and to save
such public office holder from harassment while the person is in office.
What however is the scope
of the immunity?
of the immunity?
Questions
have arisen from different quarters as to whether the immunity cause protects
the public officer from investigation? It should be noted that this is not the
case.
have arisen from different quarters as to whether the immunity cause protects
the public officer from investigation? It should be noted that this is not the
case.
In
the case of Fawehinmi V. Inspector
General of Police and 2 Ors (2002) 7 NWLR (Pt. 767) 606, the question
was whether the immunity clause protects a Governor (against whom allegations
of criminal conduct was made) from investigation by the police. The Supreme
Court held in the case that neither the law nor the Constitution protects any
person from being investigated by the Police. The outcome of the investigation
however would not crystalize into a criminal prosecution while the public
officer still holds office. Uwaifo JSC further stated “that a person protected
under Section 308 of the 1999 Constitution, going by its provisions, can be
investigated by the police is, in my view beyond dispute.” The essence of the above
judicial pronouncements is that though a public office holder covered by
Section 308 of the Constitution may be investigated by government security agencies,
they may not be prosecuted until after the expiration of their official tenure.
the case of Fawehinmi V. Inspector
General of Police and 2 Ors (2002) 7 NWLR (Pt. 767) 606, the question
was whether the immunity clause protects a Governor (against whom allegations
of criminal conduct was made) from investigation by the police. The Supreme
Court held in the case that neither the law nor the Constitution protects any
person from being investigated by the Police. The outcome of the investigation
however would not crystalize into a criminal prosecution while the public
officer still holds office. Uwaifo JSC further stated “that a person protected
under Section 308 of the 1999 Constitution, going by its provisions, can be
investigated by the police is, in my view beyond dispute.” The essence of the above
judicial pronouncements is that though a public office holder covered by
Section 308 of the Constitution may be investigated by government security agencies,
they may not be prosecuted until after the expiration of their official tenure.
It is also worthy of note that by virtue of the Diplomatic
Immunities And Privileges Act, every foreign envoy and every foreign consular officer, the members of the
families of those persons, the members of their official or domestic staff, and
the members of the families of their official staff, are accorded immunity from suit and legal process
in Nigeria.
Dunmade
Onibokun Esq.
Onibokun Esq.
Principal Partner
Adedunmade Onibokun & Co.