A Comparative Analysis Of Constitutional Immunity Clause

TABLE OF CONTENTS

COVER PAGE

TITLE PAGE

APPROVAL PAGE

DEDICATION

ACKNOWLEDGEMENT

ABSTRACT

CHAPTER ONE

INTRODUCTION

• BACKGROUND TO THE STUDY
• STATEMENT OF THE PROBLEM
• AIM AND OBJECTIVES OF THE STUDY
• SCOPE AND LIMITATION OF THE STUDY
• SIGNIFICANCE OF THE STUDY
• RESEARCH METHODOLOGY
• SYNOPSIS OF CHAPTERS

CHAPTER TWO

LITERATURE REVIEW

• CONCEPTUAL, THEORETICAL FRAMEWORKS AND LITERATURE REVIEW
• DEFINITION OF IMMUNITY CLAUSE
• HISTORICAL DEVELOPMENT OF CONSTITUTIONAL IMMUNITY CLAUSE IN NIGERIA AND SOUTH AFRICA

2.2.1 HISTORICAL DEVELOPMENT OF CONSTITUTIONAL IMMUNITY CLAUSE IN NIGERIA.

2.2.2 HISTORICAL DEVELOPMENT OF CONSTITUTIONAL IMMUNITY CLAUSE IN SOUTH AFRICA

2.3 TYPES OF IMMUNITY

2.3.1 THE ROLE OF IMMUNITY CLAUSE IN NIGERIA AND SOUTH AFRICA

2.4 FUNCTIONAL PURPOSE OF IMMUNITY IN INTERNATIONAL RELATION

2.4.1 GENERAL CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATION

2.4.2 GENERAL CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE ORGANIZATION OF AFRICAN UNITY

2.4.3 CHALLENGES OF IMMUNITY CLAUSE ON INTERNATIONAL LAWS

2.5 THE LEGAL IMPLICATIONS OF IMMUNITY CLAUSE

2.6 IMMUNITY CLAUSE AND ITS ABUSE

2.7 REVIEW ON EXECUTIVE IMMUNITY

CHAPTER THREE

CRITICAL EXAMINATION OF IMMUNITY CLAUSE UNDER THE NIGERIAN AND SOUTH AFRICAN CONSTITUTION

3.1.1 JUDICIAL DECISIONS UNDER IMMUNITY CLAUSE IN NIGERIA

3.1.2 JUDICIAL DECISIONS UNDER IMMUNITY CLAUSE IN SOUTH AFRICA

3.2 THE RATIONALE BEHIND IMMUNITY CLAUSE AND ITS INCLUSION IN THE CONSTITUTION

3.3 IMMUNITY CLAUSE AND RULE OF LAW

3.3.1 SUPREMACY OF LAW

3.3.2 EQUALITY BEFORE THE LAW

3.3.3 RESPECT OF HUMAN RIGHTS

3.4 IMMUNITY CLAUSE AND NATURAL JUSTICE

CHAPTER FOUR

4.0     COMPARATIVE ANALYSIS OF THE IMMUNITY CLAUSES IN NIGERIA AND SOUTH AFRICA

4.1.1 ANALYSIS OF THE IMMUNITY CLAUSE IN NIGERIA

4.1.2 ANALYSIS OF THE IMMUNITY CLAUSE IN SOUTH AFRICA

4.2 EFFECTS OF IMMUNITY CLAUSE ON DEMOCRACY AND DEMOCRATIC CONSOLIDATIONS IN NIGERIA AND SOUTH AFRICA

4.3 PROBLEMS, IMPLICATIONS AND CHALLENGES OF EXECUTIVE IMMUNITY CLAUSE IN THE CONSTITUTION

4.3.1 PROBLEMS, IMPLICATIONS AND CHALLENGES OF EXECUTIVE IMMUNITY CLAUSE IN THE NIGERIAN CONSTITUTION

4.3.2 PROBLEMS, IMPLICATIONS AND CHALLENGES OF EXECUTIVE IMMUNITY CLAUSE IN THE SOUTH AFRICAN CONSTITUTION

4.4 CRITICAL EXAMINATION OF IMMUNITY CLAUSE AS AN ENGINEER OF CORRUPTION

CHAPTER FIVE

• SUMMARY, CONCLUSION AND RECOMMENDATIONS
  • SUMMARY OF FINDINGS
  • CONCLUSION
  • RECOMMENDATION

CHAPTER ONE

1.0                         GENERAL INTRODUCTION

1.1 BACKGROUND TO THE STUDY

After several years of military rule, Nigeria has returned to a democratic rule since 29 May, 1999. However, the experience so far since Nigeria has returned to democratic rule shows that all has not been well with our democratic experience, especially as it affects the immunity of chief executives from judicial proceedings.

Nigeria being a commonwealth nation inherited the English common law and doctrine of sovereign immunity from Britain. Immunity is an antique concept which takes roots in the ancient feudal structure of England which later became a common law principle[1]. The royal and legal phraseology that the king can do no wrong (Rex non potest peccare) is of historical antiquity. Though, the doctrine as it is understood today is one of the vestiges and accoutrement of colonialism in this part of the continent. Under the doctrine, it is presumed that the king can do no wrong, he lacks legal capacity of doing wrong, and kings must not and was not allowed or entitled to do wrong.[2] Though, if the king did wrong, he just could not be sued as H. Street said:

…so the king,at the apex of the feudal pyramid and subject to the jurisdiction ofno other court was not suable.[3] Thus, two fundamental legal principles of great antiquity-one procedural and the other substantive, accounted for sovereign immunity which made direct action or justification of certain claims against the crown impossible:

The feudal rule that no lord of the manor could be sued in his own court meant that the king being the great overlord of all and the peak of the English legal system, could not be suing his own court or in the court of any of his vassals. Added to this procedural difficulty was principle of substantive law that ‘the king can do no wrong’ which meant that no act or omission of the sovereign was open to impeachment or condemnation on the ground that it was wrong fulor tortuous.[4]Subject or vassals with any claim against the king in the 13^th century presented them to the king informally, whereupon the king might refer them to his Court by endorsing it with mark ‘Fiat justitia’.[5] This was through a procedure known as Petition of Right introduced during the reign of Edward 1. Any subject prejudiced by a royal refusal to consider his petition was without remedy. Petition of Right was limited to recovery of land and proprietaryaction while other heads of action were left unremedied. Petition of Right could also not lie in torts; this is based on Brocton’s proposition, that ‘the king can do no wrong’.

[6] Commenting on this,Cockburn C.Jobserved[7] as follows: …a petition of right in respect of a wrong in legal sense of the term shows no right to legal redress against the sovereign for the maxim that king can do no wrong applies to person as well as political wrongs….Petition of right lasted till only the 14^th century. Since the 15^thcentury, petition of right had fallen into disuse due to procedural difficulties. It was superseded by the real actions, ‘traverse and monstrans de droits.’[8] Petition of right revived in 19^th century as ‘monstrans de troits’ was superseded and went into disuse. However, on the 13^th February 1947, Viscount Jowitt, introduced to the House of Lords a government sponsored crown proceedings bill which was endorsed into law on 13^th July,1947 and came into force on 1^st January 1948, this is otherwise known as Crown Proceeding Act(CPA)1947. This Act abolished the petition of right procedure and as well makes crown not only liable in contract but also in torts.Thus, the historical myth surrounding the crown was totally removed. Coming back home, immunity in government is not strange even to our people in Southwest of Nigeria. Before the advent of colonization, in the 18^th and 19^th centuries, our kings governed us in our communities. These kings reigned and ruled absolutely and executively, as they have rights over life and death of their subjects. Hence, they are being described as ‘kabiyesi’, meaning no one dare query the acts and deeds of kings. In those days, they were known to commit all forms of criminal atrocities and diabolical acts, but no one dare query them because of their ‘divine rights’ and immunity in governance, even unto death.

These are the kind of powers and immunities which traditional rulers enjoy in the past but in this modern era, they have been deprived of such prerogatives and immunities and anyone caught in the despicable act either practicing directly or covertly will be prosecuted if found guilty, might even be given death sentences. An example is the Osun State monarch who is presently standing trial for alleged rape of a corps member.[9]

It is from this historical background (especially the colonization experience) thatwe have the immunity clause which protects the President,Governors and their deputies under section 308 of the 1999 Constitution. It must however be recalled that the 1999 Constitution was not the first to make provision for immunity of the President and the Governor in this country. The 1963 republican Constitution[10] made similar provisions. In the 1979 Constitution[11] also similar provision was made for immunity, even the still born 1989 Constitution had the immunity clause.[12] In fact,under the 1979 Constitution, in the case of Chief (Mrs.) Funmilayo Ransome Kuti v Attorney General of the Federation,[13] the Supreme Court dismissed the appeal filed by the plaintiff on the basis of the maxim ‘rex non potest precarre’ (the King can do no wrong).

However, this study were carried out to compare the practice of immunity clause in Nigeria and South Africa.

1.2 STATEMENT OF THE PROBLEM

Immunity clause as enshrined under section 308 of the 1999 Constitution of the Federal Republic of Nigeria has generated protracted controversies for and against its inclusion in the rubrics of Nigerian constitutional laws and this is been considered as the major cause widespread of corruption by Nigerian leaders. It has been criticized as an enablement of high-level corruption and a colossal waste of the nation’s common wealth by those in whose hands it is entrusted, because it shields them from justice and promotes the culture of impunity. Since the onset of the fourth republic in 1999, no fewer than twenty-three former governors have been arrested or prosecuted for corruption. Of this number, only six have been sentenced to various terms of imprisonment within and outside Nigeria. This number, however, is abysmal in comparison to the 17 former governors facing different degrees of criminal charges in Nigerian courts and those still under investigation by the Economic and Financial Crimes Commission.[14] Indeed, the immunity clause has become an albatross to Nigeria’s democracy and other countries (such as South Africa) economic growth and development. This has led to various calls for removal of this clause from the Constitution to give room for better accountability and responsibility in governance, especially against the fact that other countries have slowly but steadily moved away from shielding their political representatives from criminal prosecution for corruption and misappropriation of public fund.[15] This study compares the practice of immunity clause in Nigeria and south Africa.

1.3 AIM AND OBJECTIVES OF THE STUDY

The main aim of this work is to carry out a comparative analysis of constitutional immunity clause practiced in Nigeria and South Africa. The study seeks to achieve the following objectives:

1. To examine the concept of immunity clause as it covers countries constitution.
2. To contribute to the contemporary legal problems on immunity of the chief executives that are presently unfolding in our democratic experience.

• To access information on how immunity clause is practice in Nigeria and South Africa.

1.4 SCOPE AND LIMITATIONS OF STUDY

The project work seeks to concentrate on the abuse of immunity clause by politicians in Nigeria. This project work will discuss more on executive immunity. The relevant laws of Nigeria particularly the present 1999 Constitution of the Federal Republic of Nigeria will be examined alongside with the 1979, 1989 and 1963 Constitutions of Nigeria, which will comparatively analysed with constitutions practice of immunity clause of south Afirca, so as to serve as a comparative study to the Nigerian experience.

1.5 SIGNIFICANCE OF THE STUDY

This study will serve as an avenue for providing the incumbent a free hand and mind to perform the duties and responsibilities of his office without distraction from litigation. The immunity is essentially for the protection of the dignity of the office and not for the individual office holder as such. This study will provide the reader as well as the student with the knowledge on how immunity clause is performed both in Nigeria and South Africa.

With this study, legal problems can best be solved by getting the problems discussed. If those concerned with law can come out and express their opinion on a legal problem, solution to that problem will not be farfetched. It is with this view in mind that this writer decides to embark on this study and it is hoped that by the end of this write up, the writer would have been able to give a useful suggestions as to how the problem of immunity of chief executives in Nigeria can best be tackled

1.6 RESEARCH METHODOLOGY

This work shall invoke the use of doctrinal research methodology. This is comprised of primary sources such as Constitution, Statutes and judicial authorities as well as secondary sources such as articles, journal, publications, legal framework both local and international, as well as the opinion of text writers and jurists. The primary sources of law to be consulted include, but not limited to; statutes like the Constitution of Nigeria 1979, 1989 and 1999. In the same vein, the work also made reference to primary sources of Nigerian and South Africa Constitution and secondary sources such Journals on immunity clause through which the modern scholars adopted in arriving at comparative analysis of the two countries.

1.7 SYNOPSIS OF CHAPTERS

The work is organized as follows: chapter one discuses the introductory part of the work,   chapter two presents the literature review of the study,  chapter three describes the critical examination of immunity clause under the Nigerian and South African constitution, chapter four discusses the comparative analysis of the immunity clauses in Nigeria and South Africa, chapter five summarizes the research outcomes and the recommendations.

[1] Malemi E, The Nigerian Constitutional Law(Princeton Publishing co. Lagos 2006) 446-458.

[2] Ibid

[3] Street H, Government Liability: A Comparative Study (Cambridge University Press New York, 1953) 42.

[4] Ewelukwa D.I.O, ‘Proceedings by and against the State in Nigeria’ (1973)11 Nigeria Bar Journal.10 at 11.

[5] This means: ‘Let Justice be done’.

[6] Taiwo E.A, ‘A Critical Appraisal of the Officers Protection Act’ (An unpublished L.L.M dissertation submitted to the Faculty of Law, Obafemi Awolowo University, Ile-Ife. March, 1998)16.

[7] Feather vReg (18656) Best& S,257 at 295-296.

[8] Feather vReg (18656) Best& S,257 at 295-296.

[9] Oba A. A, The Alowa of Ilowa before a Magistrate Court in Osun State; The Punch Newspaper, (Nigeria 8 April  2011).2.

[10] Section 161(1).

[11] Section 267(1)(a).

[12] Section 320

[13] (1985)6 S.C. 246.

[14] Akinpelu, Y. (2020). Orji Kalu Resumes at Senate after Release from Prison. Premium Times (June 09, 2020) Retrieved October 5, 2020, from https://www.premiumtimesng.com/news/topnews/396826-orji-kalu- resumes-at-senate-after-release-from-prison-.html

[15] Austin, J. (1995). Austin: The Province of Jurisprudence Determined. In W. Rumble (Ed.), Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9780511521546

CHAPTER FIVE

5.1 SUMMARY OF FINDINGS

In spite of its good intentions, the application of the constitutional provision on immunity for certain categories of elected public officers in Nigeria arguably has more negative than positive implications for democracy and democratic consolidation. It is particularly identified with lack of transparency, embezzlement, lack of accountability and other forms of abuse of power that detract from the beauty and essence of democracy.

The implications of the above for democratic consolidation in Nigeria are quite threatening. That a sitting governor or president cannot be prosecuted for crimes committed against the state simply puts such individuals above the law. It would be a means of breeding criminals in power. On the other hand, considering the super-competitive nature of Nigerian politics and the knack of losing parties in Nigerian elections to attempt to shoot down the administration of the winning party, it is necessary to give minimum protection to sitting governments by re-considering the circumstances, terms and conditions under which the immunity clause should apply. This is the need to strike a delicate, yet workable, stabilizing balance on the one hand, between granting unqualified, open-ended and potentially insidious protection to political office-holders to commit crimes against the state and the people with impunity and, on the other, exposing government to the destabilizing machinations of bad losers at elections, who may wish to truncate the smooth process of governance whenever they fail to win elections.

It is the contention of this paper that striking this delicate balance is a major means of ensuring democratic consolidation in Nigeria. Re-inventing the immunity clause in this creative way has several potential advantages. First, it will check the excesses and profligacy of political office holders. Second, it will protect government against frivolous and destabilizing machinations of political opponents in order to ensure governmental stability and advance development. Third, it is a means of safeguarding the interests, freedoms and liberties of the citizenry against a government bent on taking vengeance on its perceived ‘enemies’.

Although there have been calls for the total removal of the immunity clause from the constitution, a review of the provisions to take care of its loopholes that political office holders have exploited to commit political and financial crimes against the Nigerian people and State in the past will be in order. This is in agreement with the recommendation of the National Judicial Council to the Sub-Committee on Review of the 1999 Constitution for the amendment of the clause to cover only civil matters, and not criminal ones. This is important for us to be able to combine accountability with performance in government so that democracy can be consolidated in Nigeria and the people can actually reap the dividends of their hard-earned democracy[1]. Having considered how immunity clause is treated in Nigeria and some other jurisdictions of the world, we are now put in an objective position to judge whether immunity clause is a curse or a blessing in Nigerian governance, considering the fact that the degree of immunity varies from one country to the other.

5.2 RECOMMENDATIONS

Adding my contribution to what eminent Nigerians has contributed, it will be very proper to bear in mind the recommendation of the National Judicial Council in a Memorandum to the sub-committee on Supplementary and General Provisions of the Joint National Assembly Committee of the 1999 Constitution which has been quoted in the course of this work.182 The Council however recommends that:[2] In view of all the following, the committee is of the opinion that the immunity granted under Section 308 be reviewed with a view to closing avenues of abuse. I am in agreement with the recommendations of the National Judicial Council. It has however been suggested that a qualified immunity which covers the official acts of the office holders only should be allowed in the constitution. According to a writer: [3] It is obvious that section 308 is a provision too broad for the purpose for which it is meant. It is in effect an excessive protection of the president and governors as what is sought to be achieved through the section can better be achieved if the immunity is limited to the official transactions of the persons named in the section to the exclusion of every other transaction, they may get involved in. such qualified immunity offers a double barrel blessing. the first is that it would reduce the arbitrariness of such officials, and second, it would roll away the stone from the iniquitous tomb to which section 308 has confined people’s fundamental right to sue when their rights have been trampled upon by any of the persons named in the section…it is time for the legislature to amend the immunity provision of the constitution to make it applicable only when the official acts of the persons named in the section come into question.

While agreeing with the above recommendations, it is necessary to give my own recommendation on the debate. The various arguments already captured in this paper have their demerits and merits. It is however observed that an amendment of the provision of executive immunity in the Constitution to meet the demands of the time maybe met with stiff resistance mounted by its beneficiaries and those in support for the retention of the clause. Thus, a middle course must be reached.

The support here is not the total abrogation of the clause, 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 circumstance 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 provides for ‘powers of the National Assembly, and Privileges and Immunities of the Members’ should be enlarged 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 the immunity enjoyed by one organ of government only is not given a special status. If any organ of government should enjoy constitutional immunity at all, it should not be the executive for two reasons;

First, the executive is the domineering organ in the Nigerian governmental structure as a result of prolonged military rule.185Secondly, a break from the concept of monarchical sovereignty under colonialism and the position under the petition of rights laws should ordinarily require that no special immunity status is granted to the executive. An amendment as proposed would curb excessive rigidity in terms of preservation of executive immunity so that possible amendment to meet changing circumstance is made possible, while at the same time, impreciseness is avoided.

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, notwithstanding. The immunity that should be in a Statute as I have proposed should be a qualified one in the realm of criminal prosecutions just like

Tanzania, India and Cyprus mentioned above. It is however suggested that executive immunity should stop where the credibility to continue is in issue these offences include: Economic/ Financial Crimes, Corrupt Practices, Forgery, Rape and Homicide. These are offences that Nigerians loathe. It is the view here that just as any one aspiring to public office in Nigeria should not have been tried and convicted of any of these crimes, so also any one alleged to have committed these offences should not be allowed to remain in office under the guise of immunity. Furthermore, any Governor, or even the President and their deputies who are alleged to have committed any of these crimes would suffer from moral/political credibility crises. At such times, the business of governance is hardly concentrated upon.

In order to curb frivolous allegations, these offences must be those alleged to have been committed during their tenure in office or committed in order to attain the office.

Financial crimes, Homicide and offences mentioned above committed before office and which were not in furtherance of the attainment of the political office should be prosecuted at the end of the tenure of the executive office holder.

Another aspect to look at is whether the National Assembly’s capacity to legislate on executive immunity through item 47 does not leave the executive at the mercy of the legislature? This problem can be solved by providing a procedure for operation and amendment of the law made pursuant in the item, just like we have procedures in section 143 and188 of the constitution for removal of President and Governors. This is to check errant legislators.

How will the executive office holder be made to answer for his alleged heinous crimes? Will the Attorney General be fair to the State in handling such prosecution? In the law of the National Assembly on executive immunity proposed in this paper[4], all those procedures would be outlined, just like that of India. The suggestion here is that upon the completion of investigation by the relevant agency sequel to an allegation of the commission of any of these crimes, the evidence gathered should be brought before a High Court Judge by an independent counsel just like that of the United State who would access the evidence to know whether a prima facie case has been established against the office holder enjoying immunity, thus necessitating a full trial. The essence of establishing a prima facie case is to further forestall frivolous prosecution. Where the judge rules in the affirmative, then the office holder goes on vacation to stand trial.

5.3 CONCLUSION

The legislative intent for providing constitutional immunity clauses in most commonwealth jurisdictions is to protect the dignity and integrity of the holder of an elective office. This intention is particularly more fundamental and essential in Nigeria given the fledgling and emerging nature of the nation’s democratic institutions. Removing the immunity clause could open a floodgate of frivolous litigations against elected officers especially from “professional litigants” with the sole aim and objective of distracting the officer from the very serious business of governance.

The investigation of the activities of the incumbent office holders should continue as it does not conflict with the provisions of the section and they can be made to answer to these investigations as soon as they leave office. However, constitutional immunity should not be extended to the legislative arm of government because such immunity does not avail the third arm of government – the judiciary. More importantly, all the members of the legislature are equal upon being elected. The leaders become primus inter pares upon election to leadership positions and can be removed anytime and substituted by another member without or with minimal disruption to legislative business.

Furthermore, the process of removal from office of protected officers as provided for in the Constitution should be used in proven cases of breach of trust, corruption or mismanagement. The officer concerned can be made to face charges as soon as they are lawfully removed from office as the immunity will abate immediately.

[1] New Age, 2005:1; Momoh, 2005

[2] The Punch Newspaper,(Nigeria 16 April 2004)36.

[3] Punch Newspaper, (Nigeria, 28 February 2011)1.

[4] Achike O, ‘Groundwork of Military Law and Military Rule in Nigeria’(Fourth dimension

publishers, Enugu 1980) 0n how military rule made the executive more domineering of the three

tiers.