Guest Columnist: 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 legislature. 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.
My position is 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. Nigerian people are called upon to demand 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. Menelaus 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. 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. 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 wilful damage to property carried out by its armed agents. But the highest court took advantage of the case to declare that Section Six 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,” (he who cannot be questioned) 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. Such cases include 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 realised that the defendants cannot appeal against the cases if they are decided in favour of the public officers.
Immunity and Criminal Investigations
Recently, the EFCC traced N1.2 billion allegedly diverted from the Office of the National Security Adviser to a Zenith bank account belonging to the Ekiti state governor, Mr Ayo Fayose. As soon as he learnt that the account was under investigation Mr. Fayose made attempt to withdraw the balance of N500 million in the account. To prevent the governor from transferring the fund the EFCC froze it and later obtained an ex parte order of interim seizure. In challenging the action of the EFCC the governor said that his immunity had been violated. Convinced that he had been betrayed by the bank Mr. Fayose said that the money was actually donated by the bank to his campaign. As I have argued elsewhere the action of the EFCC cannot be impugned having regard to the combined effect of sections 28 and 34 of the EFCC Act as well as section 308 of the Constitution.
However, assuming without conceding that the bulk of the fund spent on his campaign was donated by Zenith Bank Plc, the governor has unwittingly justified the investigation and freezing of his account by the EFCC. He has also confirmed that the humongous sum of money was transported from Abuja to Akure in contravention of the Money Laundering Act. By his utterances, Mr. Fayose is simply saying that the management of Zenith bank stole depositors’ money and laundered it to fund his political campaign contrary to Section 90 of the Electoral Act, 2010 as amended. On the basis of his own confessional statement, Governor Fayose and the management of the bank are liable to be prosecuted for electoral fraud, money laundering and criminal diversion of depositors’ fund to the tune of N1.2 billion. Therefore, whether it is public money stolen via the office of the NSA or depositors’ fund through the bank the decision of the EFCC to freeze Mr. Fayose’s account is perfectly in order.
In Gani Fawehinmi vs. Inspector General of Police (2002) 23 WRN 1 the Supreme Court held that although public officers covered by the immunity clause cannot be arrested or prosecuted they are not excluded from investigation for corruption and other criminal offences. It was the view of Uwaifo JSC “The evidence may be useful for impeachment purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under pretext that a Governor cannot be investigated is a disservice to the society.”
Curiously, the interpretation of the immunity clause was limited to section 308 (1) of the Constitution. It is doubtful if the Supreme Court would have maintained the same stand if its attention had been drawn to Section 308 (2) thereof where it is expressly provided that a public officer protected by the immunity clause can be subjected to “criminal proceedings in which such a person is only a nominal party”. This means, in effect, that a public officer who enjoys immunity can be made a defendant in a nominal capacity in criminal proceedings. In FRN v Dariye (2011) 13 N.W.L.R (Pt 1265) 521, the Court of Appeal dismissed the charges against the appellant, a sitting governor at the material time on the ground that he was made a principal party in the criminal case. According to Tur J.C.A:
“Learned counsel to the appellant ought to have seen the impracticability, futility and absurdity of instituting criminal proceedings against Chief Joshua Chibi Dariye either as the Governor of Plateau State or in his name since he is not a nominal party under section 308 (2) of the Constitution but the principal offender alleged to have conspired with the other co-accused persons to commit the offences.”
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 to 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.