Opinion: Immunity Clause under the Nigerian Constitution: Matters Arising by Binzak Azeez

The doctrine of sovereign immunity is of immemorial antiquity. The exact origin of the concept has been a nebulous long-term debate. Nevertheless, it is a prominent purview among the legal historians that sovereign immunity stemmed from the English common law system. This anachronous principle is established on rex non potest peccare maxim (the king can do no king). The body solely responsible for law-making and adjudication was the king or his representatives. The king was the most superior being and therefore exempted from legal proceedings, obligations and liability which might occur while discharging some onuses singlehandedly or by proxy.

Nigeria is a creation of the 1914 Constitution fashioned out by Lord Frederick Lugard, a British imperialist. Prior to the colonial arrangement of the fragmented territories that sum up Nigeria, each territory had its distinct unwritten constitution. English Law (common law) was incorporated into the Nigeria's political sphere alongside the territorial unification arrangement. Subsequently, the country witnessed constitutional developments which are classified into two historical epochs; colonial and post - colonial constitutional amendments. The constitutions promulgated by the colonialists include; Lord Frederick Lugard 1914-1922, Sir Clifford 1922-1946, Arthur Richard 1946-1951, Sir John Macpherson 1951-1954 and Oliver Lyttleton 1954 constitution which laid down the transition template towards the 1960 independence constitution.

Nigeria attained her political liberty as a sovereign state under the 1960 independence constitution. In this light, the second phrase of her constitutional development began. There were vestiges of colonial blueprints in the 1960 independence constitution. Despite that the 1963 republican constitution granted full political autonomy to the country, numerous colonially induced master plans were retained and incorporated into the 1963 constitution likewise the subsequent constitutional amendments. The colonialists maintained outright dominance with the legislation of draconian and repressive laws such as Seditious Offences Ordinance, Immunity Clause, etc. So far, the post independence constitutional amendments have been shielding the Nigerian political elite from proper accountability. The constitutions enacted and promulgated by both the civilian and military administrators respectively hampered the combative tones of average Nigerians against unfavorable and tyrannical policy of government.

The political institutions are being manipulated to safeguard the colonial heritage of repression.  Immunity clause among other constitutional provisions that were incorporated into the post-independence constitutions protects a category of Nigerian political leaders from legal suits. A hodgepodge promotion of institutionalized injustice, outright impunity and unbridled corruption. The Crown Proceedings Act 1947 has embraced a cause of action against the Crown in English common law. According to section 2(1) of the Act(supra),  "Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity..." The recognition of the Crown's liability in torts promotes public interest though the enforcement of the legal liability is limited. Unfortunately, the Nigerian constitution which imported immunity clause from the Crown (common law) has failed to place an equilibrium between the clause and public interest.

The crime committed by various Nigerian governments since independence is immeasurable. Both the military and civilian governments have successfully organised extra judicial killings, genocide, illegal importation of arms, sponsoring militant groups and other grievous offenses against countless and defenseless Nigerians without facing trials. Similarly, both governments shared a common trait in flouting court orders and siphoning the country's resources. The democratic dispensation is infamous for organising discreditable elections. Virtually every election is characterized with violence, arson, massive rigging in favour of the incumbent government or their anointed candidates. The state apparatus becomes a repressive instrument against dissenting voices, the public treasure turns to private assets and the nation with a groaning and dying people.

The fundamental purpose of enshrining the immunity clause under Section 308 of the 1999 constitution as amended, was elucidated by the Supreme Court in the case of Bola Tinubu vs. IMB Securities Plc (2001)  "The immunity clause is meant to provide a shield for the person of the President, Vice President, Governor or Deputy Governor from frivolous or vexatious litigation in respect of personal or criminal proceedings that would distract him from the serious business of governance." However, this purpose has been manipulated to promote injustice, impunity and corruption. Therefore, the clause should be reviewed to checkmate the spate of anomalies being perpetrated under the guise of immunity clause.

In tandem with rising contemporary realities, the Nigerian judicial system has been debased utterly. The floating of court orders by the persons who are immune to legal suits is alarming. Judicial institution must be protected for democracy and good governance to thrive. Immunity clause at the detriment of judicial contempt nullifies the sanctity of the rule of law. Moreover, immunity clause is a sharp contrast against natural law and equity. All are equal before the law and the law must be equal to everyone. No individual should be privileged or discriminated against all extant laws. Also, "Justice delayed is justice denied." An injunction or a relief can be granted to prevent a travesty of justice in some peculiar cases. While the law recognises an instant relief in certain peculiar legal suits, justice is raped if the defendant is protected from legal suits. Immunity clause greatly abhors corruption. The immunes have turned the national treasury into private pockets. Corruption hampers the country from progress. The fight against looting is exigent and should not be selective or obstructed under any excuse.

In conclusion, immunity clause is unethical for Nigerian political system. All political leaders must be strictly held accountable for their brazen actions to resuscitate the country from wreckage. The National Assembly and the state Houses of Assembly have failed woefully in exercising their constitutional roles of curbing executive excess, rascality and gross misconducts. It was posited in the case of Gani Fawehinmi v. IGP (2002) 8 SCM 77 that "although a governor enjoys immunity from arrest and prosecution, he doesn't enjoy immunity from investigation." It is evident that the Inspector General of Police (IGP), the Economic and Financial Crime Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC) which are empowered to investigate the persons conferred with immunity clause take instructions from the Nigerian president. The institutions  have failed to make giant strides in impartial investigations pending the time that the persons covered by immunity lose the clause.


Binzak Azeez writes from the faculty of Law Obafemi Awolowo University, (O.A.U) Ile Ife.