In order to ensure the smooth running of the government, the Constitution has conferred immunity on the heads of the executive. A couple of laws have equally granted immunity to members of the judiciary and the parliament. However, the proposal of the Senate to confer absolute immunity on the heads of all legislative houses in the country and the recent freezing of the bank account of Mr. Ayo Fayose, Governor of Ekiti State by the Economic and Financial Crimes Commission (EFCC) have re-opened the debate on the propriety of retaining the immunity clause in the Constitution.
This piece was written by Femi Falana (SAN). The views and opinions expressed here are those of the author and do not necessarily reflect the official policy or position of 360Nobs.com.
We contend here that no public officer is entitled to absolute immunity as the beneficiaries of the immunity clause may be sued in their official capacity or made nominal parties in criminal proceedings. They may also be sued to defend their elections, either in court or election petition tribunals or charged with crimes against humanity and genocidal acts before the International Criminal Court at The Hague. In conclusion, the Nigerian people are called upon to demand for the abolition of immunity in the struggle for public accountability and transparency.
Genesis of Sovereign Immunity
The doctrine of sovereign immunity is of antiquity. It is basically founded on the anachronistic legal principle of rex non potest peccare (the king can commit no wrong). As the king enjoyed absolute immunity, he could neither be impeded in his own courts nor subject to any foreign jurisdiction. Maneleus of Sparta confirmed that the king was above the law of the Realm, when he said “when a king takes spoils, he robs no one; when a king kills, he commits no murder, he only fulfils justice.”
Under the feudal system of government the king was equated with the State. Hence Louis XIV of France once declared “I am the State”. Although the absolutist powers of the king were swept away by the Glorious Revolution in England, the immunity of the Crown was left intact. Thus, by virtue of the Crown Proceedings Act, the king was totally absolved of vicarious liability with respect to the tortious acts of his agents or servants. See Roper V. Public Works Commissioner (1905) I.K.B. 45. The Crown Proceedings Ordinance, the Petition of Rights Ordinance, the Public Officers Protection Ordinance etc which embodied the essentials of state immunity were imposed on Nigeria by the British colonial regime. Consequently, Nigerians were unable to sue the British government for the massive violations of their rights and the criminal diversion of the wealth of the country under colonial rule.
Even though the Crown Proceedings Act was abolished in England in 1947, its ghost continued to haunt Nigeria several decades after independence. For instance, the law was invoked to cover up the atrocities perpetrated by the armed soldiers who destroyed the Ransome-Kuti family house at Idi Oro, Lagos on February 18, 1977. Thus, in Chief (Mrs) Olufunmilayo Ransome Kuti Vs. Attorney-General of the Federation (1985) 2 NWLR (PT 6) 211 at 236-237, the Supreme Court held that the federal government was not vicariously liable for the arson and willful damage to property carried out by its armed agents. But the apex court took advantage of the case to declare that Section 6 of the Constitution has abolished the anachronism of state immunity.
Apart from the Crown Proceeding Act, which was annulled in the Ransome-Kuti’s case, a number of other laws which preserved state immunity have either been declared illegal or whittled down by Nigerian Courts. But in spite of the abolition of state immunity, the Constitution has conferred immunity on the heads of the executive arm of government during their terms of office. Under the defunct military dictatorship, the absolute immunity of military dictators was preserved in the supremacy decrees. Specifically, the Constitution was suspended while the jurisdiction of the courts was ousted with respect to anything done or purported to have been done by the military dictators.
In Femi Falana & Ors v General Ibrahim Babangida the plaintiffs sued the defendant to justify the unilateral dissolution of the Armed Forces Ruling Council, the ruling body under the military junta at the material time. In striking out the case for want of locus standi the trial judge, the late Ligali Ayorinde C.J. described the military president as the “kabiyesi” of the country as he was not accountable to anyone or institution in the country. But the judge failed to appreciate that the “kabiyesi” in the Oyo empire could be removed if he was found to have committed grave crimes against the people.
The Purpose of Immunity for Public Officers
The sole justification for immunity is that the heads of state and government should enjoy absolute immunity to enable them to perform official duties without distractions. In other words, such public officers should not be harassed or distracted in the performance of their duties by fear of civil or criminal litigation. By virtue of Section 308 (1) of the 1999 Constitution “no civil or criminal proceedings shall be instituted or continued against the President, Vice President, Governors and Deputy Governors during their period of office.” The implication of the immunity clause is that any of the persons to whom the section applies shall not be arrested or imprisoned either in pursuance of the process of any court or otherwise and no process of any court requiring or compelling the appearance of the person shall be applied for or issued.
However, the provision of the immunity clause shall not apply to civil proceedings against the public officer in his/her official capacity or to civil or criminal proceedings in which such a person is only a nominal party. Cases filed before the assumption of office of public officers covered by the immunity clause are stayed to await the expiration of their tenure. See the cases of Col. Oluwole Rotimi Vs. Macregor (1974) NSCC 542; Bola Tinubu Vs. I.M.B. Securities Ltd. (2001) 11 WRN 27; (2001) 16 NWLR (PT 740) 670 and Media Technique Nig. Ltd. Vs. Lam Adesina (2004) 44 WRN 19. Paradoxically, public officers protected by the immunity clause are not precluded from instituting civil proceedings during their terms of office.
In Olabisi Onabanjo Vs. Concord Press of Nigeria (1981) 2 NCLR 349, the defendant challenged the libel suit filed by the plaintiff on the ground that he was excluded from being sued during his term of office as the governor of Ogun State. In dismissing the preliminary objection, Kolawole J. (as he then was) held that even through a governor could be sued he was not precluded from instituting and maintaining an action in Court. See also the case of Aper Aku Vs. Plateau Publishing Company Ltd. (1985) 6 NCLR 338 and Chief D.S.P. Alamieyeseigha Vs. Teiwa & Ors. (2001) 33 WRN 144.
With respect, it is submitted that if those covered by the immunity clause can institute libel suits or enforce other rights, it is unjust to prevent other persons from suing them while in office. As there is equality before the law, it is grossly unjust to allow public officers covered by the immunity clause to institute civil suits when their opponents are precluded from suing them by issuing or serving court processes on them. The injustice in the discriminatory practice becomes apparent when it is realised that the defendants cannot appeal against the cases if they are decided in favour of the public officers.
By virtue of Section 6 of the Constitution, the judicial powers of the State are veted in judges. Such powers shall be exercised by judges without fear of favour. The law establishing each of courts provides that judges shall not be held liable for any act done in the discharge of their duties. In other words judges cannot be subject to civil or criminal proceedings on account of negligence or errors made in the course of discharging their functions. Litigants who are dissatisfied with the decisions of judges have the right to appeals to higher courts for redress. However, the National Judicial Council is empowered to investigate allegations of misconduct against judges and recommend appropriate sanctions to the appointing authorities.
In order to deal with allegations of judicial corruption, judges who were found to have engaged in misconduct have been removed from the bench. According to the Chief Justice of Nigeria, the Honourable Justice Mahmud Mohammed, not less than 54 judges have been compulsorily retired or dismissed from office from 1999-2016. Two Senior Advocates of Nigeria who are alleged to have bribed three judges are currently standing trial at the Lagos high court. Since it takes two to tango, the judges who allegedly received the bribes from both senior lawyers should not be spared from criminal prosecution.
The Legislative Powers and Privileges Act has conferred limited immunity, powers and privileges on the members of the National Assembly in the performance of their legislative duties. Specifically, they are immune from civil or criminal proceedings in respect of deliberations and comments made by them in the course of proceedings in the parliament. In view of the controversy which has trailed the arraignment of the leaders of the Senate, it is pertinent to point out that the privileges and immunity conferred on the legislators cannot shield them from prosecution for criminal offences. Indeed, under section 25 (1) of the Act, any person who causes to be printed a copy of any Act or law, report, paper, minutes or votes or proceedings of a legislative house shall be guilty of an offence and shall be liable on conviction to a fine of two hundred naira or imprisonment or 12 months imprisonment or to both such fine and imprisonment.
Furthermore, no prosecution shall be instituted for any offence committed under the Act except by the Attorney-General of the Federation (AGF) upon information given to him by the President of the Senate or the Speaker of the House of Representatives. With respect to the alleged forgery of the Senate Rules, which occurred sometime last year, the Senate President did not report the matter to the AGF. Since the Senate President failed to perform his statutory duty in the circumstance, the AGF decided to file to charge the four defendants with conspiracy and forgery under the Penal Code applicable in the Federal Capital Territory.
Although Nigerian legislators have not been conferred with absolute immunity, the Senate believes that its leaders are above the law of the land. Hence, the Chairman of the Code of Conduct Tribunal was recently summoned to justify the trial of the Senate President, Dr. Bukola Saraki on the allegation of false declaration of assets. Although the Senate withdrew the illegal summons based on negative public reaction, it has invited the Attorney-General of the Federation to appear before the senators to explain the rationale for filing criminal charges against the senate president, deputy senate president and two legislative staff. Since the Senate is prohibited by its own rules from debating any matter which is sub judice, the decision of the Attorney-General, Mr. Abubakar Malami (SAN), to treat the summons with disdain cannot be faulted.
It ought to be pointed out that not even the court can question the Attorney-General in the exercise of his powers to charge any criminal suspect to court pursuant to Section 174 of the Constitution. In The State v Ilori & Ors (1983) 1 SCBLR 94, the Supreme Court held that the powers of the Attorney-General are a matter for his quasi-judicial discretion and one within his complete province as he possesses “the constitutional powers in full and the responsibility for any decision thereupon rests solely on him.” The apex court proceeded to state that “a person who has suffered from the unjust exercise of his powers by an unscrupulous Attorney-general is not without remedy; for he can invoke other proceedings against the Attorney-General. But certainly, his remedy is not to ask the court to question or review the exercise of the powers of the Attorney-General.” Since the Senate lacks the vires to summon the Attorney-General to partake of a debate on a matter that is sub judice, the illegal summons should be formally withdrawn without any further delay.
Instead of writing protest letters to regional and international organisations, as well as embassies of countries which operate under the rule of law with emphasis on equality of citizens before the law, the defendants are advised to follow the principle laid down by the Supreme Court in the case of The State v Ilori & Ors (supra). More importantly, to prevent the political manipulation of the Attorney-General by the Executive, the National Assembly may wish to take advantage of the planned constitutional review to ensure that Section 174 of the Constitution is amended to separate the office of the Attorney-General from that of the Minister of Justice.
Immunity and Electoral Disputes
In order to actualise the equality of the rights of all contestants in a presidential or governorship elections, it has been held by the Supreme Court that immunity cannot be invoked in election petitions. Otherwise, public officers to whom immunity applies may take advantage of their positions to rig elections and thereby sabotage the democratic process. The rationale for suspending the operation of the immunity clause during the hearing of election petition was explained by the late Justice Kayode Eso in Obih Vs. Mbakwe (1984) All NLR 134 at 148 when he said, “With respect, to extend the immunity to cover the governors from being legally challenged when seeking a second term will spell injustice.”
Similarly, in Turaki v. Dalhaltu (2003) 38 WRN 54 at 168, the Court of Appeal (per Oguntade JCA (as he then was) held that “If a Governor were to be considered immune from court proceedings, that would create the position where a sitting Governor would be able to flout election laws and regulations to the detriment of other person contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution, which in its tenor provides for a free and fair election.” See Amaechi v INEC (2008) 5 N.W.L.R (Pt 1080) 227; Baido v INEC (2008) 12 N.W.L.R (Pt 1101) 379.
In the case of the Alliance for Democracy v. Peter Ayodele Fayose (No 1) (2004) 26 WRN 34, the respondent challenged the issuance of a subpoena on him on the ground that Section 308 has conferred immunity on him as a governor. While dismissing the objection, the Court of Appeal (per Muri Okunola JCA) held: “… the immunity provided by the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is put in abeyance when his election is being disputed before an Election Tribunal as to make him amenable to being compelled by a subpoena to tender document(s) or give evidence before the Election Tribunal.”
In recent time, there are election related proceedings that have been filed against heads of government despite the immunity clause in Section 308 of the Constitution. It is on record that majority of the governors were respondents in several election petitions arising from the 2015 general elections. Although the elections petitions have been concluded, a pre-election in which President Buhari was a defendant has just been discontinued by the plaintiff while the case against the governor of Cross River State has been dismissed on the ground that the allegation of falsification of age was not proved beyond reasonable doubt. Two pre-election cases are still pending against Governor Bagudu of Kebbi State and Governor Okezie Ikpeazu of Abia state.
Immunity and Criminal Investigations
Two weeks ago, the EFCC traced N1.2 billion criminally diverted from the Office of the National Security Adviser to a Zenith bank account belonging to the Ekiti State governor, Mr. Ayo Fayose. As soon as he learnt that the account was under investigation, Mr. Fayose invaded one of the branches of the bank at Ado Ekiti with armed gendarmes and demanded for the withdrawal for the balance of N500 million in the account. To prevent the governor from transferring the fund, the EFCC froze it and later obtained an ex parte order of interim seizure. In challenging the action of the EFCC, the governor said that his immunity had been violated. Convinced that he had been betrayed by the bank, Mr. Fayose said that the money was actually donated by the bank to his campaign. As I have argued elsewhere the action of the EFCC cannot be impugned having regard to the combined effect of Sections 28 and 34 of the EFCC Act, as well as Section 308 of the Constitution.
However, assuming without conceding that the bulk of the fund spent on his campaign was donated by Zenith Bank Plc, the governor has unwittingly justified the investigation and freezing of his account by the EFCC. He has also confirmed that the humongous sum of money was transported from Abuja to Akure in contravention of the Money Laundering Act. By his utterances, Mr. Fayose is simply saying that the management of Zenith Bank stole depositors’ money and laundered it to fund his political campaign, contrary to Section 90 of the Electoral Act, 2010 as amended. On the basis of his own confessional statement, Governor Fayose and the management of the bank are liable to be prosecuted for electoral fraud, money laundering and criminal diversion of depositors’ fund to the tune of N1.2 billion. Therefore, whether it is public money stolen via the office of the NSA or depositors’ fund through the bank, the decision of the EFCC to freeze Mr. Fayose’s account is perfectly in order.
In Gani Fawehinmi vs. Inspector General of Police (2002) 23 WRN 1, the Supreme Court held that although public officers covered by the immunity clause cannot be arrested or prosecuted, they are not excluded from investigation for corruption and other criminal offences. It was the view of Uwaifo JSC, “The evidence may be useful for impeachment purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under pretext that a Governor cannot be investigated is a disservice to the society.”
Curiously, the interpretation of the immunity clause was limited to Section 308 (1) of the Constitution. It is doubtful if the Supreme Court would have maintained the same stand if its attention had been drawn to Section 308 (2) thereof where it is expressly provided that a public officer protected by the immunity clause can be subjected to “criminal proceedings in which such a person is only a nominal party”. This means, in effect, that a public officer who enjoys immunity can be made a defendant in a nominal capacity in criminal proceedings. In FRN v Dariye (2011) 13 N.W.L.R (Pt 1265) 521, the Court of Appeal dismissed the charges against the appellant, a sitting governor at the material time on the ground that he was made a principal party in the criminal case. According to Tur J.C.A:
“Learned counsel to the appellant ought to have seen the impracticability, futility and absurdity of instituting criminal proceedings against Chief Joshua Chibi Dariye either as the Governor of Plateau State or in his name since he is not a nominal party under section 308 (2) of the Constitution but the principal offender alleged to have conspired with the other co-accused persons to commit the offences.”
Investigation of Corrupt Practices Involving Heads of Government by Independent Counsel
By virtue of Section 52 of the ICPC Act, the Chief Justice of Nigeria is empowered to appoint an Independent Counsel, who shall be a legal practitioner of not less than 15 years standing, to investigate any allegation of corruption against the President, Vice President, Governor or Deputy Governor. At the end of such investigation, the Independent Counsel is required to make a report of the findings available to the National Assembly or the House of Assembly of a State as the case may be for the impeachment of the indicted officer.
When Justice M.A. Akanbi was the ICPC Chairman, he caused the Commission to submit about 20 applications to the Chief Justice of Nigeria seeking for the appointment of Independent Counsel to investigate allegations of corruption against some sitting governors. None of the applications was granted on the ground that there was no budget for the office of the independent counsel! Instead of applying for an order of mandamus to compel the Chief Justice to carry out his statutory functions under the ICPC Act, the case files were reportedly withdrawn by the ICPC. Thus, Section 52 of the ICPC Act has not been tested for the past 16 years.
Plea of Immunity By State Governments
Recently, the Attorney-General of the Federation (AGF) requested the EFCC to investigate a complaint alleging the criminal diversion of N11 billion from the coffers of the Rivers State government. In a letter addressed to the AGF which has since been advertised in some national dailies, the Rivers Attorney-General challenged the competence of the AGF to direct the EFCC to investigate the allegation of the missing fund. Without missing words, the AGF was asked to leave the suspected looters alone as the money alleged to have been criminally diverted is owned by the Rivers State government. In support of his strange submissions, the Rivers State AG cited a couple of cases decided by the federal and state high courts.
With respect, the decisions relied upon by the Rivers State AG do not represent the correct state of the law with respect to public accountability in Nigeria. Incidentally, the Rivers State government was one of the defendants in the case of AG, Ondo State v AGF wherein the Supreme Court had held that “generally speaking, power to prosecute for an offence is not determined by the ownership of the property allegedly stolen or misappropriated and that the determining factors are: (i) Who can exercise prosecutorial powers, (ii) The nature of the offence and, (iii) Where the offence was committed – the venue. In Dariye v FRN (2015) 10 N.W.L.R. (Pt 1467) 325, the Supreme Court reiterated the principle when it held that “the owner of the subject matter of the charges is immaterial. What is material is that a Federal enactment has been violated.”
It view of the fact that the EFCC has been asked by the AGF to investigate the alleged violation of relevant federal enactments with respect to stolen funds belonging to the Rivers State government, it is hoped that the state AG will advise the suspects involved to cooperate with the anti-graft agency in the circumstance. Having regard to the categorical pronouncements of the apex court in the AG, Ondo State v AGF (supra) and FRN v Fariye (supra), the ownership of the alleged missing sum of N11 billion is of no moment.
Waiver of Immunity
Realising that the war against corruption could not be meaningfully prosecuted as long as some public officers were immune from prosecution, President Obasanjo campaigned for the abolition of immunity for heads of government. In 2001, he waived his immunity and appeared before the Oputa Commission in response to the petition of Dr. Beko Ransome Kuti. The allegation was that it was the military regime headed by him which had authorised the violent destruction of Fela Anikulapo-Kuti’s residence on February 18, 1977.
However, the other ex-military dictators refused to appear at the panel of inquiry. In fact, one of them successfully challenged the summons served on him in Fawehinmi v Babangida. In setting aside the summons, the Supreme Court held that the Commission could not compel the attendance of any witness and that the Federal Government had no power to set up a commission of enquiry outside the Federal Capital Territory.
Limitation of Immunity Under International Law
It is submitted that the immunity conferred on state governors by the Constitution is not applicable outside the territory of Nigeria as only the President is entitled to sovereign immunity under customary international law. The case of R. (on the application of Alamieyeseigha) v Crown Prosecution Service  EWHC 2704 (Admin) is relevant in this regard. In September 2005, following investigations by the Proceeds of Corruption Unit of the Metropolitan Police in the United Kingdom and the Economic and Financial Crimes Commission (EFCC), Chief D.S.P Alamieyeseigha was arrested in London, questioned and charged with three counts of money laundering.
A worldwide criminal restraint order was obtained by the Crown Prosecution Service over his assets. He then sought to quash the decision to prosecute him in London on the grounds that, as a result of his position as governor and Chief Executive of the State of Bayelsa, he was entitled to state immunity in criminal proceedings brought in the United Kingdom. The argument was rejected by the trial judge who held that as a governor of state which is a constituent part of Nigeria, the applicant was not entitled to sovereign immunity in respect of criminal proceedings brought in the United Kingdom.
In FRN v Joshua Dariye (2007) S.R (D) 179, the plaintiff filed a forfeiture proceeding against the defendant in a British court in February 2007. The defendant who was then a governor in Nigeria applied for a stay of proceedings or transfer of the case to Nigeria on ground of forum conveniens. The objection was dismissed. During the proceedings, the defendant failed to provide an adequate explanation for the source of his funds and the court ordered that his assets be returned to Nigeria. The court dealt separately with the defendant’s property and his bank accounts.
However, the Rome Statute to which Nigeria is a signatory does not recognise the immunity of presidents and state governors. Therefore, if a warrant is issued for the arrest of any of the Nigerian leaders for genocidal acts or crimes against humanity, the immunity conferred on the public officer by the Constitution cannot be successfully invoked to shield him/her from trial before the International Criminal Court. When President Omar Bashir of Sudan was in Nigeria last year to attend an international conference, a human rights body filed an action at the Federal High Court seeking to compel the Federal Government to arrest the guest and hand him over to the Special Prosecutor of the ICC for genocide over the massacre of over 300,000 people in Darfur, Sudan in 2005. As soon as he got wind of the suit, the visiting Sudanese President hurriedly left Nigeria.
In the Minister of Justice and Constitutional Development & Ors v The South Africa Litigation Centre & Ors (Unreported Case no 867/15), President Al Bashir arrived in South Africa to attend the African Assembly on June 13, 2015. As the government took no steps to arrest him, the respondent, the South African Litigation Centre (SALC), brought an urgent application on Sunday June 14, 2015, in the Gauteng Division of the High Court, Pretoria seeking orders declaring the failure to take steps to arrest him illegal. The order issued by the court, which directed the Jacob Zuma government to arrest him was flouted as President Bashir’s plane was allowed to fly out of the country.
Upon hearing the substantive matter, the trial judge condemned the government of South Africa violating its obligations under the Rome Statute as it pertains to the arrest of President Al Bashir. Dissatisfied with the ruling, the government challenged it on appeal. In dismissing the appeal, the Supreme Court Appeal of South Africa held that “The conduct of the Respondents in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in South Africa on 13 June 2015 … was unlawful.”
Notwithstanding the absolute immunity conferred on heads of government, they may be sued in their official capacity or made nominal parties in criminal proceedings. In order to promote accountability and transparency in government and deepen the democratic process, the courts have whittled down the absoluteness of immunity enjoyed by heads of government with respect to electoral disputes and criminal investigations. In the circumstance, the Chief Justice of Nigeria, the police and the anti-graft agencies should carry out their statutory duties by ensuring that allegations of corrupt practices involving heads of government are probed while the reports are either submitted to the appropriate legislative houses or kept for the prosecution of the indicted heads of government upon the expiration of their terms of office.
No doubt, the rising wave of executive lawlessness in the polity, including the rapacious looting of the treasury by some heads of government has led to an upsurge in the popular demand for the abolition or removal of the immunity clause from the Constitution. This disturbing situation was well captured by Tur JCA in FRN v Dariye (supra) when he said:
“Experience has shown that the immunity clause in the Constitution has
been abused by many Governors and Deputy Governors and Nigerians
have been clamouring for its removal from the Constitution. That has
been the yearnings of those who want to rid the country of corruption
by persons thrust with the responsibility of executing governmental
affairs of the Federation or the States.”
Femi Falana, a Senior Advocate of Nigeria (SAN), writes from Lagos.
The views and opinions expressed here are those of the author and do not necessarily reflect the official policy or position of 360Nobs.com.