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A CRITIQUE OF THE IMMUNITY CLAUSE IN THE 1999 COSITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

Authored By: Ehinomen Musa-Agboneni

Ambrose Alli University

The essence of immunity clause was aptly noted by the Supreme Court in Abacha v Federal Republic of Nigeria[1].The provisions of Section 308 of the Constitution of the Federal Republic of Nigeria clearly states that no action shall be brought against the incumbent; the Governor, Deputy, President and Vice during the tenure of their office. Such actions are suspended regardless of their civil or criminal nature. Onoghen, ISC in same matter stated that the purpose of immunity clause is to allow the incumbent to operate free from harassment and distraction. This was the intendment of the immunity clause but in practice, it yields embezzlement and money laundry particularly of the executive arm of government. The continuous retention of the immunity clause is backed up by some school of thoughts that agree with the immunity conferred on the executive, they opined that it brings positive impact to the administration of the incumbent. Amongst these schools are; the protagonist school and the positivist school. Naturally, there are arguments against the retention of the immunity clause. These schools of thoughts argue that the immunity clause is just a shield for fraudulent activities on the part of the incumbent. These schools include; antagonist and moralist substantive school.

Arguments for the Retention of the Immunity Clause in the 1999 Constitution

Protagonist school

Some Nigerians are of the view that immunity clause ought to be retained if only to prevent anarchy and enhance peaceful environment for administration of the Federation and the State. For instance, late Beko Ransome Kuti, the foremost human right crusader argues that absence of immunity clause in the Constitution would be abused by political detractors of the concerned public office holder. Beko opined that he did not know anywhere in the world where immunity is not provided for a serving President and his deputy. This is arguable as Tanzania has tried and is still trying it. Such removal can only make the official accountable and obey the rule of law, instead of trying them after they have left office.

In like manner, Goddy Uwazurike posits that the immunity clause should remain as it serves the purpose of staving off possible indignities that may be thrown on the way of the affected public officers. He maintains that every dignity must be accorded these officers since they hold their office as trustees of the people; only immunity clause can ensure the dignity. In view of the seemingly negative Nigerian experience of the abuse of the immunity clause, members of the school conclude that the fact of few instances showcasing the abuse of immunity clauses is not sufficient ground to strip other public officials of the immunity granted them. Hence, constitutional immunity should prevail.

Positivist School

This school seems to support the protagonists position. To the positivist school, removing the immunity clause may create more problems rather than solving the ones already on ground. The reasons for the arguments of the positivists school may be summarized thus:

  1. The retention of the immunity clause will maintain of preserve the dignity of the office which was the main reason for the insertion of the immunity clause.
  2. To the positivists, immunity has helped to prevent incessant bye elections which would have arisen as a result of incessant elections which would be necessary to replace office holders who are removed from office if the immunity clause was removed.
  3. The immunity clause has to a large extent guaranteed the term of office of executive office holders, as criminal prosecutions against them would have led to convictions, thus creating vacuum in the office from time to time. Political opponents have been prevented from using litigations as instrument of pulling down incumbent officers and thus destabilizing the political system.
  4. The retention of immunity will avoid distraction of the office holder from doing what he was elected to do.[2]
  5. The existence of immunity clause in the Constitution can prevent an overzealous President or Governor from using Court proceedings to humiliate out of office his deputy to whom he has fallen out with. The positivist formalist school argues that the formal enactment of any statute regardless of its moral content determines its validity and commands the obedience of the people subject to it.[3] In advancing its case on the constitutional immunity debate, the proponents argue that the reason for the insertion of the clause is the need for the holders of certain political office not to be unnecessarily encumbered by a spate of litigation.

Arguments for the Removal of the Immunity Clause

The main issue associated with the immunity clause enshrined in the Constitution of the Federal Republic of Nigeria is nothing else but its irrebuttable status. The Constitution of the Federal Republic of Nigeria is the grundnorm of the country and by reason of that; its provisions are unchallengeable as stated in S 1(1) CFRN 1999:

“This Constitution is Supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.”

Regardless of the allegations against an incumbent, no charge or action can be brought before a court of law and no summons of any sort can be issued to bring such an official to court while he is still in power. The position of the law is very clear on this and consequently, the President, Governor, Vice President and Deputy Governor cannot be sued in their personal capacity while in office.The application of the immunity clause in the 1999 Constitution particularly in the Fourth Republic, has elicited varying responses from groups, institutions and individual members of the public. These responses have varied from the moderate to the radical.The National Judicial Commission (NIC) made a recommendation to the National Assembly Committee on the Review of the 1999 Constitution that  the clause be amended to confer immunity on concerned political office-holders on civil maters only, and not on criminal matters, as a way of mitigating its negative outcomes.

However, Professor C.S. Momoh (2005) believes that the clause is inconsistent with the ideal of democracy and should, therefore, be removed from the constitution. He advances three reasons for this view. First, he argues that the provision constitutes a rude and reckless assault on, and a violation of the independence and powers of the judiciary. He supports this argument with the aid of two trite points in law. First is that a constitutional provision in its right and proper place and content takes precedence on, and is superior to a contrary provision in a wrong and improper place and context. He argues that the judiciary has powers to adjudicate over any criminal and civil matters dealing with fundamental human rights. Thus, a governor who might have committed murder is not covered by the immunity clause. Furthermore, Professor Momoh noted that the immunity clause was not provided for under “The Executive” (Chapter VI), suggesting that it was mentioned only as an after-thought under “Miscellaneous” and therefore, is untenable.The second trite point in law, argues Momoh, is that equity holds sway between two equally formidable and contending provisions and positions. He submits that:

The ouster clause in Section 308 is a matter of criminality, immorality and jurisprudence is yet to record a case where criminality supersedes innocence and piety … equity ought never to support criminality over civility, morality, culturedness and civilization.

The third trite point in law on the basis of which the immunity clause becomes a nullity, according to Momoh, that the phrase “period of office” which the clause adopts is not synonymous with “tenure”, which properly refers to the term of a political chief executive. He therefore argues that the provision stands against the ground norm (introduction or preamble) to the constitution that seeks to promote good government and the welfare of all persons in Nigeria on the principles of freedom, equality and justice and to consolidate the unity of our people.Since the immunity clause constitutes detraction from the above objectives, it is evil, satanic, oppressive and aids the commission of crimes against the people, Momoh argued. He noted further that:If a governor commits a crime during his period of office, he is not performing the functions of his office, and so he is not covered under section 308(3). Indeed, such an action will be contrary to the oath that he swore to and the code of conduct contained in the Fifth Schedule to the Constitution.

He concluded that since “Section 308 excuses and immunizes damnable and criminal executive conduct and behaviour; … it is a constitutional vagabond and bastard, lawless area boy and legal miscreant, without any abode and without a home”. He therefore argued that it should be removed from the constitution.[4]

An Assessment of the Executive and Legislative Immunity under the 1999 Constitution

The argument of the opposing school of thought make valid, important and noteworthy points as why the immunity clause provided for by the 1999 Constitution should be removed. The various arguments already captured in this work brings about diverse views all with their merits and demerits. The first and most important observation is the ennoblement of the immunity clause giving it an untouchable power. The difficulty in amending the Nigerian Constitution under civil democratic rule is evident at least by the failed attempts made so far by the civilian administrations since 1999[5]. This is due to the complex nature of the Nigeria nation and the suspicion which characterizes the amendment of the Constitution[6]. It follows therefore that an amendment of the provision on executive immunity in the Constitution to meet the demands of the time may be met with stiff resistance mounted by its beneficiaries. It can be argued that the aim of any assessment or review of the immunity clause is not necessarily for the total and absolute removal bur rather, the opinion here is that executive immunity should be contained in an Act of the National Assembly and not the Constitution. This makes for easy amendment to suit changing circumstances in the nation’s political life. For this to be made possible, item 47 of the Second Schedule (Exclusive Legislative) List of the Constitution which is ‘Powers of the National Assembly, and the privileges and immunities of its members’ should be enlarge to include ‘immunities of the President and Vice President of the Federal Republic of Nigeria, and Governors and Deputy Governors’, thereby empowering the National Assembly to validly make a law on executive immunity. This power should be exclusive to the National Assembly and not shared with the State Houses of Assembly for the sake of uniformity. The benefit of such an amendment is that Ine immunity enjoyed by one organ of government only is not given a special status. If any organ government should enjoy constitutional immunity at all it should not be absolute. Absolute immunity as it is at the moment is not good for the development of democracy and good governance in the country, the argument that the immunity is only for the period of office or tenure, notwithstanding. The immunity that should be in a statute as we have proposed should be a qualified one in the realm of criminal prosecution.

Governance is based, among other things, on trust on the leader based on his perceived credibility (moral or political). Executive immunity, and indeed immunity for members or any of the organs of government, should stop at the point where the credibility to continue in office is in issue.

Future Prospects of the Immunity Clause

The importance of the immunity clause enshrined in the 1999 Constitution of the Federal Republic of Nigeria can never be overemphasized. The Constitution being the most superior body of laws applicable in Nigeria ensures that no other legislature can overturn the provisions contained in the Constitution in pursuance of Section 1of the1999 Constitution of the Federal Republic of Nigeria that provides thus:

  1. This Constitution is Supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
  2. The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
  3. If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, lo the extent of the inconsistency, be void.

However, the immunity clause enshrined in Sec 308 of the 1999 Constitution of the Federal Republic of Nigeria has overly been abused by those it covers giving it an overall negative impact on the country. The incumbents participate in all manner of corrupt practices that they cannot be tried for while in office. The Immunity Clause therefore loses its true essence and without meaning to helps in aiding and abating crimes.

Flowing from the above analysis, I humbly submit that section 308 of the Constitution of the Federal Republic of Nigeria, should not be expunged but be modified. I align myself with Constitutional Immunity retentionists but seek modifications that best suit the Nigerian situation.

On the way forward, I submit that there should be an amendment to the extant Section 308 to remove the notion of absolute immunity from the section. By the amendment, such political office holders covered by the section should be made answerable for the abuse of their office especially as it relates to wanton corrupt practices that has become the bane of national development and societal progress in Nigeria.

Reference(S):

[1] [2014]LPELR  SC 40 (2006)

[2] Kupoloyi, A, ‘Don’t Remove Immunity Clause’, Daily Indeoendent Trust Newsapaper, 21 Jan, (2009) 13 available at:  file:///C:/Users/user/Downloads/136302-Article%20Text-364959-1-10-20160530%20(3).pdf (Jun.7,2025, 2:33pm)

[3] “Balogun. O, ‘African leaders and Constitutional Immunity: The Moral Question’. (Paper presented at the interdisciplinary Conference on ‘Ethics and Africa’, co-sponsored by Jean Blumenfeld Center for Ethics, Georgia State University and philosophy department, University of Cape Town, South Africa, 29-31 May 2006)48. (Jun.7,2025, 2:48pm)

[4] Olaoye, E.O. “The Significance of the Immunity Clause for Democratic Consolidation in Nigeria” African Journal of Criminology and Justice Studies: AJCIS, Vol.6, #s1 &2 (November 2012) ISSN 1554-3897, p. 97-98 Available at: https://www.africaknowledgeproject.org/index.php/erald/article/view/2374 accessed Jun 9, 2025, 4:10pm)

[5] President Olushegun Obasanjo attempted a review of the 1999 Constitution without success, even though a proposal to that effect was made by the Committee he set up. Report of the Presidential Committee on the Review of the 1999 Constitution, August 2001. An attempt to review the Constitution in 2005 was a complete fiasco because of the alleged tenure elongation bid of the President. Current efforts at amending the Constitution for a better electoral system are going at a snail pace.

[6] For a discussion of the intrigues that go with constitution making in Nigeria see T. Mamman: “The Law and Politics of Constitution-Making in Nigeria”, 1862 – 1989: Issues, Interests and Compromises (Maiduguri,1995). See the account given by the Chairman of the 1988 Constituent Assembly which drafted the still born 1989 Constitution: A.N. Aniagolu: The Making of the 1989 Constitution of Nigeria (badan: Spectrum Books Ltd., 1993). The book provides an insight into the ethnic rancour and religious bitterness that came into play during the debate on the making of the 1989 constitution.

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