THE IMMUNITY CLAUSE AND PUBLIC OFFICE HOLDERS: ASSESSMENT OF THE FIGHT AGAINST CORRUPT PRACTICES IN NIGERIA FROM 2004 TILL DATE
This paper particularly identifies highlights and analyses the call for the removal of the “immunity clause”. The vocative case of the clamor for the removal of the provision, according to the proponents is that it indulges corrupt practices by the protected public office holders and arguably militate against efficiency and performance of the Anti-graft agencies thus countermand national anti-graft crusade.
TABLE OF CONTENTS
Table of content
Chapter One: Introduction
1.1 Background of the Study
1.2 Statement of the Problem
1.3 Research Hypotheses
1.4 The Objectives of the Study
1.5 Limitation of the Study
1.6 Definition of Terms
2.0 The History, Doctrinal Analysis of Immunity and Corruption
2.1 Historical Origin of Immunity
2.3 Economic Financial Crimes Commission (EFCC)
2.4 Origin of the EFCC
3.0 Limitation of the Immunity Clause
3.1 Official Capacity
3.2 Nominal Party
3.3 Electoral Petitions
3.4 Police Investigation
3.5 Impeachment Proceedings
4.0 A Critical Appraisal of the Immunity Clause Provision of The 1999 Nigerian Constitution
4.1 Meaning, Nature and Scope of Executive Powers under the 1999 Nigerian Constitution
4.2 Rationale and Scope of the Immunity Granted in Section 308 of the 1999 Constitution
4.2.1 Scope of the Immunity Clause
4.2.2 Rationale for the Immunity Clause
4.3 Immunity Clause and Rule of Law
4.3.1 Supremacy of Law
4.3.2 Equality Before the Law
4.3.3 Respect for Human Rights
4.4 Immunity Clause and Natural Justice
4.5 Immunity Clause and Judicial Review
5.0 Conclusion and Recommendation
Immunity clause provision is not new to Nigerian constitutional documents as it has been existence from inception. Most democratic societies today enjoy constitutional immunity. In this context, immunity can be seen as an exemption that precludes the act of instituting a suit against a person, it is a privilege advantage upon certain persons in the persons in the 1999 constitution.
In the light of this immunity conferred upon certain public office holders and with the high profile corrupt practices by these protected officials/public office holders, it has become a source of worry to the concerned citizenry, thereby bringing about arguments. This argument has given birth to different schools of thought.
The first school of thought is of the view that: Immunity clause is the reason for this massive and hi-tech corruption in the country. Especially by the leaders since, whatever happens in the society is mostly perceived as the reflection of the leadership of the country as they believe that the clause poses as a shield or refuge for corrupt practices.
The second school of thought believes that the immunity clause is necessary for every democratic society especially Nigeria. It should not be expunged, else it will bring about undue harassment, unwarranted litigations by political rivals. Instead of the removal of the clause, the legislation should wake up to its constitutional responsibility.
Additionally, it is not worthy, that the modern rules of executive immunity not only impinges upon many a legal maxim one of such being that which proclaims that “where there is a right, there is also a corresponding remedy” but also, undermine the principles of the rule of law. In spite of these considerations, however, the importance of an immune executive cannot be over-emphasized. The forthright and fearless chief executive is able to effectively discharge the functions of his office without fear or favor, affection or ill will and in a manner that sustains the honor and dignity of the state.
Exploration of these issues in the Nigerian context produces interesting insights. This paper therefore critically appraises the immunity clause provision of the 1999 Constitution as regards public office holders and the assessment of the fight against corrupt practices in Nigeria from 2004 to 2017 in the light of the foregoing issues and much more.
At the denouement is a suggestion for an effective operation and application of the immunity clause.
1.1 Background of the Study
This background of study include;
(a) To embark on a thorough analysis of the legal framework for the application of the immunity clause provision of the 1999 Constitution of Nigeria, with a view to identifying any aspect that may need reform or repeal.
(b) To carry out a critical survey of the operation of the immunity clause and to assess to fight against corrupt practices in Nigeria and accordingly suggest practical reformatory measures in line with current events and developments.
(c) To undertake a theoretical exposition of the nature and application of the immunity clause of the 1999 Constitution of Nigeria.
1.2 Statement of the Problem
The importance of this paper, visa-v12 the controversy surrounding the immunity clause provision of the 1999 Constitution can be hardly overemphasized. Specifically, the paper is significant because it attempts to answer the following;
i. Why one framer of the constitution put a clause that exempts certain government officials from legal encumbrances.
ii. Whether the immunity clause is responsible for the abysmal corrupt practices in the public services and the hindrances of the fight against corruption.
iii. Whether the immunity clause is responsible for the inefficiency and ineffectiveness of the Anti-graft Agencies in the fight against corrupt practices.
iv. Whether the immunity clause is such a bad provision, that is to say, whether, it is contrary to democratic principles.
v. Whether the provision was made only to protect public office holders as enshrined in the constitution in their personal capacity and not to enhance their work.
1.3 Research Hypothesis
The methodology adopted for this study consists party of an extensive literature review in Nigeria from 2004 to 2017; and of course the use of comparative materials from British, American, Indian, and Srilanka Jurisdictions. Also, books and review of literature on immunity by Nigerian academics and Judges. The Newspaper reports and paper presentations on corruption and other financial practices were also studied.
Additionally, the relevant constitutional provision regulating the operation of the immunity clause at all levels of our legal system has been examined thoroughly. Lastly, case laws bothering on the issue of immunity were considered.
1.4 The Objectives of the Study
The objective of this paper is limited to the immunity clause provision of the 1999 Constitution and the advent of financial crimes Antigraft Agencies in the corruption crusade and their assessment.
Geographically the scope of this paper is restricted to the states constituting the Nigerian Legal System.
However, references may be made to a foreign jurisdiction where necessary for purpose of comparative study.
1.5 Limitation of the Study
A number of factors contributed to the inadequate and low volume of data needed for the qualitative and quantitative exposition of this paper; these include; lack of adequate finance for acquisition and aspiration of research data, the inadequacy of research materials in the libraries consulted amongst others.
1.6 Definition of Terms
There are number of key concept contained in the topic of this paper that needs clarification. These include “Immunity,” “Constitution,” “Corruption”, and “Provision”. Since the study is concerned primarily with immunity and fight against corrupt practices (corruption). It is important to start with the analysis of the following.
In examining the term “Immunity” there is no clear definition in any piece of legislation or case law in Nigeria but resort will be made to dictionary and Juristic opinion.
Accordingly, the Black’s law Dictionary defines Immunity as, Any exemption from a duty, liability or service of process, especially such an exemption granted to a public officials. This definition is in tandem with the Opinion of Malemi, E. when he opined that; Immunity is the exemption of a person or body from legal proceedings liability.
Hence, if “Immunity” is an exemption, it follows therefore that an examination of the meaning of exemption as well as other related concepts like “Exemption,” “Privileged” and right is expedient. Thus, an exemption” has been defined as an objection pointing out a substantive defect in an opponent’s pleading, such as the insufficiency of claim or the court’s lack of subject matter or Jurisdiction, an objection to a pleading for want or substance.
A more instructive definition is that relating to statutory exemption” the later concept is defined as: A provision in a statute exempting certain persons or conducts from the statute’s operation. By the same token, a privilege is defined as;
A special legal right, exemption or immunity granted to a person or class of person; an exception to a duty.
The legal compendium which is a widely accepted and recognized authority in law, further adumbrate on the concept of “Privilege” when it is further stated that;
A priviledge grants someone the legal freedom to do or to do a given act. It immunizes conduct that under ordinary circumstances would subject the actor to liability.
Lastly, “a right” is defined as something that is due to a person by just claim, legal guarantee or moral principle. Or; a power, privilege or immunity secured to a person by law. From the foregoing, it can thus be seen that immunity in an exception, exemption, privilege, and (or) rights granted to certain public officers under the supreme law of the land. It operates to shield the beneficiaries from legal proceedings (whether civil or criminal) instituted or continued against them in their personal capacity.
In examining the term constitution for the purpose of this paper, two approaches will be adopted, namely juristic and judicial approach.
Juristically, a constitution has been defined as an instrument of Government made by the people establishing the structure of a country, regulating the powers and functions of government. The rights and duties of the individuals and providing remedies for unconstitutional act. The Black’s Law Dictionary defines it as;
1. The fundamental and organic law of a Nation or State that establishes the institution and apparatus of government defines the scope of governmental sovereign powers and guarantees individual rights and liberties.
2. The written instrument embodying this fundamental law together with any formal amendment.
Conversely, the term constitution has been judicially, defined in MISCELLANEOUS OFFENCE TRIBUNAL V. OKOROAFOR, KARIBI-WHITE,JSC held as follows;
The constitution of the country is the fundamental law, the fons et Origo fo all laws, the exercise of all powers and the source from which all laws, institution and persons derive their authority. This is consistent with the definition offered by the supreme court of Nigeria in PDPV INEC when the apex court defined a constitution as the organic law or grundnorm of the people. That while it seeks to provide the machinery of government, it also gives rights and imposes obligation on the people it is meant for.
A common feature of the foregoing definition is the emphasis on the supremacy of the constitution. Thus any law that is in conflict with any constitutional provision will be null and void to the extent of its inconsistency. The implication of the supreme doctrine was vividly captured by the supreme court of Nigeria in the case of AMINU.
The first fundamental legal principle barred all access to the court except win the permission of the crown. The second meant that even if the permission was given, claims based on tort will fail for failure or inability of justify them by attributing or imputing wrongs to the crown. The crown could never be compelled to answer interrogation, nor could discovery ever be ordered against it. It always had the right to with hold any documents or information from the courts on the ground that it was against public interest to have disclosed them.
Again, it is a well established principle of common law, that time does not run against the crown. This is practice meant that while the time ran against a subject with regard to any action, he intended to bring against the crown, time did not run against the crown and he could bring an action against a subject any time. Also the crown could always levy executive against any private citizen, the common law never allowed execution to be levied against the crown.
Finally, this personal immunity of kings or monarch applies now in a modified version to the presidents, vice Presidents, Governors and their deputies under Successive Nigerian Constitution, by the entrenchment of a clause in the constitution to protect them in their personal capacity during their tenure of office.
In keeping with many modern constitutions especially in developed countries, section 308 (1) of 1999 constitution as Amended provides immunity from legal action in a personal capacity for the president and vice president of the federation and the Governors and Deputy Governors and Deputy Governors of the respective States.
According to that Section:
1. Notwithstanding anything to the contrary in 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.
(b) A person to whom this section applies shall not be arrested or imprison 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.
In interpreting section 308(1) (a), a learned writer has opined that generally during their period in office criminal proceedings cannot be instituted or continued against them for acts done in their personal or official capacity. He further stated to the effect that civil proceeding cannot also be instituted or continued for acts done in a personal capacity.
Also, in FAWEHINMI V IGP, the Court of Appeal held inter alia that the simple and ordinary meaning of section 308(1) is that the persons to which the provisions apply should not be made to face civil or criminal proceedings in court. The word “proceedings” after or TANKO V THE STATE, when the Apex Court stated that, the constitution (The grundnorm) of this country, indeed the constitution of this country is supreme. It is by it that the validity of any law, rule or enactment for the governance of any part of the country will; be tested.
All in all, it can be thus be deduced from the foregoing that a constitution is an instrument of Government, under which Laws are made and is not merely an Act or Law. It is the general legal framework that defines, describes and limits exercise of powers, rights and obligations and the modes and limitation of the exercise thereof.
According to Black’s Law Dictionary a “Provision is”;
1. A clause in a statute or other legal instrument
2. A stipulation mode beforehand.
Therefore, for the purpose of this study a “Provision” is a clause or terminologies which are used in the paper that is perceived as likely to bring about confusion with be clarified in the contact in which they occur..