By Femi Falana
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 paper contends 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 term 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 realized that the defendants cannot appeal against the cases if they are decided in favour of the public officers.
Judicial immunity
By virtue of secion 6 of the Constition 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.
Legislative immunity
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 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 the 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 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 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 threreby 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.