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 [2005] 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 world-wide 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 the President and state governors. Therefore, if a warrant is issued for the arrest of any of the Nigerian leader 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 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 14 June 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.”

CONCLUSION

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 the 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 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.”

This year alone the Economic and Financial Crimes Commission has secured over 200 convictions in respect of cyber crimes, 419, fraud, stealing and other cases. By the standard of any legal system that is a record achievement. But the public perception is that the EFCC is not succeeding because the fat cats have remained largely untouchable. The anti-graft agencies have to devise new methods of fighting the menace of corruption.

2. The criminal justice system is successfully manipulated to frustrate trials. Once a big man or woman is admitted to bail the defence counsel engages in dilatory tactics to wear out the court and the prosecutor. As far as I am concerned, the EFCC has to go back to the drawing board. When the EFCC started under Mallam Nuhu Ribadu it was able to frustrate the rich. Unfortunately, the EFCC was taken over by powerful criminal suspects in connivance with a former Attorney-General of the Federation. Under the pretext of fighting corruption under the rule of law they castrated the EFCC. Mr. Lamorde is just trying to rebuild the organization. It is going to take some time because the damage is enormous. To arrest the frustration of cases the EFCC has to go back to section 40 of the EFCC Act which has abolished stay of proceedings even though the right of appeal is preserved. There is no civilized country in the world where a criminal trial can be stayed to await an appeal. Until recently, it was not part of our criminal justice system. So, we have to restore the sanity of the system in the overall interest of the society.

4. The Goodluck Jonathan Administration is a continuation of the Umaru Yaradua Administration. To that extent, not much has changed in the fight against corruption. However, I don’t blame any regime for not fighting corruption. For me there are adequate opportunities within the system to expose and shame corrupt people. A few individuals and NGOs are taking advantage of openings in the system to expose corruption. SERAP and others have just lost the move to get the CBN to account for the mismanagement and diversion of the $12.4 billion the Ibrahim Babangida junta. We are appealing against the judgment of the Federal High Court. The CNPP is seeking an order of mandamus to compel the EFCC and ICPC to prosecute President Olusegun Obasanjo for massive corruption. LEPAD has obtained an order to compel the National Assembly to disclose the salaries and allowances of legislators.

5. The Network Against Corruption has demanded for the removal of some corrupt miniters on account of corruption. The Coalition Against Corruption Leaders has joined issues with the Federal and State Government over corrupt practices. On its own part the Jonathan Administration set up some probe panels which have exposed the unprecedented sleaze in government. It is left for Nigerians to put the reports of such panels to maximum use. Many individuals and organizations are making requests for information under the FOI. The Code of Conduct Bureau has been sued for refusing to make available the assets of President Jonathan. Both Chambers of the National Assembly have taken up the challenge of exposing corruption. In the process legislators who soil their own hands are being pursued. The EFCC has taken many persons and companies to court over the fuel subsidy scam.

6. Frankly speaking, most governments in the world are corrupt. It is the business of the media and other civil society organizations to expose corruption in government. Before the creation of the ICPC and EFCC corruption was fought in Nigeria by a few patriotic individuals aided by the press. We have to go back to that glorious era in the collective interest of the society. Unlike what obtained under the Obasanjo regime when the government ordered the killing of innocent people President Jonathan will not go out of his way to order armed soldiers to destroy any community. But then, as the Commander-in-Chief of the Armed Forces he has to check the excesses of the JTFs and restrain them from killing innocent people in the fight against terrorism. The extra judicial killing of suspects and other innocent people by the police is on the rise. This has to stop. The parade of suspects by the police, NDLEA, SSS etc has to stop. The society has to fight the increasing wave of rape. The discriminatory treatment of women has to be tackled. The Jonathan Administration has inaugurated the National Human Rights Commission. I expect a major intervention of that body in the area of human rights violations. The new council is made up of men and women of ideas, courage and commitment. There are other institutionalized mechanism for protecting human rights abuse. The Legal Aid Council, Office of the Public Defender, Mediation Centres, Public Petition Committees in the legislative houses, public complaints commission etc. Nigerians should be mobilized to seek redress in these institutions whenever human rights are violated.

7. The Yaradua regime paid lip service to the rule of law. Apart from compliance with a few court orders, just a few, it was business as usual. The Appropriation Act was not fully complied as the EFCC was taken over by corrupt elements. Impunity was the order of the day. And when the President took ill the Attorney-General and a few other ministers ruled the country by fraud. A supplementary budget was even forged by the power mongers. The Jonathan Administration has not shown a greater fidelity to the rule of law. In specific cases some heads of MDAs have been called to order by the office of the Attorney-General. But institutions like the NNPC and CBN have ignored requests made under the FOI. The Appropriation Act is treated with contempt by the government.

8. Both the bar and the bench in Nigeria have failed to realize the enormity of the crisis of injustice. Hence reports of committees set up by the ex-CJN and the NJC on the Judiciary have not been taken seriously. In fact, the judiciary has been much more serious than the NBA in terms of judicial reforms. Senior lawyers have become too complacent because they are reaping bountifully from the decadence of the system. When we had an independent bar Nigerian lawyers once went on boycott of courts to protest disobedience to one court order. That was under a military dictatorship. But today disobedience of court orders is the order of the day. And the NBA is indifferent to the growing culture of anarchy in the land.

9. The Committee was made up of retired Chief Justices and former Presidents of the Bar. No consultation can be greater than that. Regrettably, the NBA is losing its relevance as far as judicial reforms are concerned. By the way, why should the NBA wait for the consultation of the CJN? The bar has to be pro-active and take its own independent decisions and not turn itself into an appendage of the CJN or an extension of the NJC. Unlike the CJN and NJC the NBA is a non state actor.

Being the paper presented by Femi Falana at the 60th birthday anniversary of Professor Julius Ihonbere, Secretary to the Edo state government at Benin City, Edo State on Saturday, July 2, 2016.