Who should be immune from prosecution?

The Senate is seeking the removal of immunity from the vice president, governors, and deputy governors. The House of Representatives is also seeking the opposite for presiding officers of legislative institutions. ROBERT EGBE examines the National Assembly’s preoccupation with who should be immune from prosecution and why. 

 

Which category of public officials should be immune from prosecution while in office? Section 308 of the            1999 Constitution provides for immunity for only the president, vice president, governors and their deputies. But the Senate believes only the Commander-in-Chief is entitled to this privilege.

Last Thursday, the Upper Chamber carried out the second reading of a bill to amend the constitution for that purpose.

The bill, sponsored by Deputy Senate President Ovie Omo-Agege, is “A Bill for an Act to alter the provisions of the Constitution of the Federal Republic of Nigeria, 1999 to qualify criminal liability for certain public officers under Section 308”.

If it succeeds, the vice president, governors and their deputies will no longer enjoy immunity in criminal matters. The move is part of a larger attempt at a sweeping amendment of the constitution by the lawmakers.

The senators are not alone. The lower chamber is also seeking to amend Section 308, but in a different direction.

On February 25, members of the House of Representatives voted in favour of a bill seeking to provide immunity for presiding officers of the National Assembly.

The lower legislative chamber passed the constitutional amendment bill for second reading at plenary session. The bill is seeking an amendment to Section 308 of the Constitution which grants immunity from prosecution to the president, the vice president, governors and deputy governors while in office.

It prescribes immunity for senate president, deputy senate president, speaker and deputy speaker of the House of Representatives, speaker of House of Assembly and deputy speaker.

It was sponsored by Olusegun Odebunmi, representing Ogo-Oluwa/Surulere Federal Constituency, Oyo State.

 

Senate’s bill

The explanatory memorandum of the bill stated that: “This act provides for qualification of the immunity clause to exclude immunity for Public Officers referred to in Section 308 from criminal liability where the offence involves misappropriation of funds belonging to the Federal, State or Local Government and also the use of thugs to foment violence.”

Section 308 of the 1999 Constitution (as amended) reads: “(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –

“(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;

“(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

“(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:

“Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

“(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

“(3) This section applies to a person holding the office of President or Vice President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.”

The proposed bill provides that a president, vice president, governors and deputy governors shall lose their immunity if they are investigated by security and anti-graft agencies, including the courts.

The bill said in part that: “Section 308 of the Principal Act is altered by (a) Substituting for subsection (2), a new subsection “(2)” –

“(2) The provisions of subsection (1) of this section shall not apply –

“(a) to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party; and

“(b) to persons who hold the office of Vice-President, Governor or Deputy Governor, if it is determined either by the Economic Financial Crimes Commission, Independent Corrupt Practices Commission, Nigerian Police and State Security Service through a collaborative investigation that the said person is indicted by a court of competent jurisdiction for:

“(i) Financial misappropriation of funds belonging to the Federal, State or Local Government; or

“(ii) Sponsoring of thugs to perpetrate violence that cause injury or death of political opponent, a member of his family, agent or personal representative.”

 

House of Reps’ bill

The attempt to confer immunity on presiding officers of the national assembly is not new. In 2016, then Minority Leader of the House of Representatives, Hon. Leo Ogor, made the same proposal.

Ogor suggestion’s was made against the backdrop of the legal travails of former Senate President Bukola Saraki at the Code of Conduct Tribunal (CCT). He said: “As the President, a President is saddled with protecting the national interest, same for the governor.

“…This is also to make sure that in line with our criminal jurisprudence, if a man is found wanting, after his tenure, he will still face trial. This is the same provision that the President, VP, governors, down to deputy governors enjoy.

“For a man who presides over such a big institution as the National Assembly, it is only fair to give him protection.”

Those who supported Olusegun’s bill said it would help the legislative chamber in carrying out their functions.

Odebunmi said: “Extending immunity to the presiding officers of the national and state assemblies is not a means of shielding them from answering any question generated by their actions, or preventing members of the House from exercising their powers of choosing or changing their leaders when required as provided for by the laws; but a genuine way of protecting the most sacred institution in a democracy.”

Also speaking during plenary, Majority Leader Alhassan Ado-Doguwa said: “It should be passed for the simple reason that it provides protection for leaders of the legislature considering the important work of the legislature.”

Toby Okechukwu from Enugu State also spoke in favour of the bill, saying it would guard against the compromise of the legislative arm.

“We are all witnesses to how the presiding officers were subjected to trial. We should avoid such from happening again,” he said.

Nkem Abonta from Abia State said prosecution of any of the presiding officers could affect the performance of the lawmakers. He said: “The office of the speaker may be harassed in frivolous suit. My morale may be low because my speaker is being harassed.

“When Saraki was taken to court, we felt demoralised. He was freed at last, but calculate the embarrassment it caused the institution.”

 

Executive immunity from around the world

The argument for and against the immunity clause is not restricted to Nigeria.

There is often opposition in Kazakhstan, Kyrgyzstan, and Turkmenistan, where presidents enjoy absolute immunity for any acts committed during office, including after leaving office.

About 32 countries around the world have some form of constitutional or statutory provisions providing immunity for sitting or former heads or state. Some of them are:

Rwanda: Rwanda’s Constitution, as amended in 2015, has two unusual provisions relating to treason by the president.  One states that the president will “cease to hold office if he or she is definitively sentenced by the Supreme Court for treason or a serious and deliberate violation of the Constitution.”

A second provision states that a former president “cannot be prosecuted for treason or serious and deliberate violation of the Constitution when no legal proceedings in respect of that offence were brought against him or her while in office.”

Burundi: Art 117 of the Burundian Constitution: The President of the Republic is only criminally responsible for the acts accomplished in the exercise of his or her functions in cases of high treason.”

Central African Republic: The President of the Republic is liable for acts committed in the exercise of his office only in cases of high treason.

Chile: The President, who has completed the full term as president, will immediately acquire the status of Ex-President of the Republic.

He may not be tried or deprived of his freedom, except in the case of a flagrant crime, if the Court of Appeals of the respective jurisdiction, in plenary, has not previously authorized his accusation, declaring that there is cause for legal proceedings.

Côte d’Ivoire: The President of the Republic is only liable for acts done in the exercise of his/her office, and is only brought before the High Court of Justice, in cases of high treason.

Djibouti: The President of the Republic is only liable for acts done in the exercise of his office in cases of high treason.

Equitorial Guinea:  The President of the Republic is the Chief of State. The Chief of State is inviolable.

Fiji:  Absolute and unconditional immunity is irrevocably granted to the President; the Prime Minister and Cabinet Ministers; Republic of Fiji Military Forces; Fiji Police Force; Fiji Corrections Service; Judiciary; public service; and any public office,

Read Also: Time to drop immunity for government leaders

 

France: The President of the Republic shall incur no liability by reason of acts carried out in his official capacity,

Iceland: The President of the Republic may not be held accountable for executive acts.  The same applies to those who exercise presidential authority.  The President may not be prosecuted on a criminal charge except with the consent of Althingi [the Icelandic Parliament].

Lebanon: No responsibility attaches to the President of the Republic while discharging his duties except when he violates the Constitution or in the event of high treason.

Madagascar: The President of the Republic is only responsible for the acts accomplished and connected with the exercise of his functions in the case of high treason, of grave violation of, or of repeated violations of the Constitution, or of breach of his duties manifestly incompatible with the exercise of his mandate.

Mauritania: The President of the Republic is not liable for his acts undertaken in the exercise of his functions except in the case of high treason.  He cannot be charged except by a vote of the absolute majority of the two Assemblies and tried by the Supreme Court of Justice.

Namibia: After a President has vacated that office (a) no Court may entertain any action against him or her in any civil proceedings in respect of any act done in his or her official capacity as President;

Russia: The former President of the Russian Federation enjoys immunity.  He cannot be held criminally or administratively liable for acts committed by him during his term of office as the President of the Russian Federation, or be detained, arrested, searched, interrogated, or personally inspected.

The immunity of the former President of the Russian Federation extends to his residential and office premises, vehicles used by him, means of communication, his other documents, his luggage, and his correspondence.

The former President of the Russian Federation may be stripped of immunity in case a criminal investigation of a grave crime committed by him during his term of office is initiated, and the termination of immunity is approved by both houses of the national legislature.

 

Why immunity must be retained

Associate Professor and Head of Department, Public and International Law, College of Law, Afe Babalola University, Sesan Fabamise, believes immunity should be retained.

In his article, “Constitutional immunity clause and the fight against corruption in Nigeria”, he noted that the immunity granted by the 1999 Constitution is not absolute and that immunity merely suspends criminal liability.

“It is also important to note that the police or other agencies of government can investigate the public officers while they are still in office,” he said.

Fabamise recalled the case of former Ekiti State Governor whose account was frozen by the Economic and Financial Crimes Commission (EFCC).

He added:  “Protected officials are also not protected for acts outside the country, as the immunity has no extra-territorial application. It is only the President that enjoys protection under the international doctrine of Sovereign Immunity. Such immunity is not extended to the Governors of constituent states in a federation.”

He also noted if executive immunity is not retained, it could result in presidential abuse against governors.

He said: “In view of the events of the recent past where the DSS became the Agency of government fighting corruption, the argument that the immunity clause should be totally expunged from the Constitution cannot be supported.

“If executive immunity is removed, given the excessive control wielded by the President over prosecution machinery like the Police, EFCC, the ICPC, Code of Conduct Bureau, the DSS and other agencies, the Governors can suffer intense harassment from the President due to political differences that he may have with them.

“From all indications, therefore, the purpose and extent of the immunity clause is to allow an incumbent completely to have a free hand and mind in the performance of the duties and responsibilities assigned to the office, which he or she holds under the Constitution.

 

‘Immunity for all or immunity for none’

But Senior Advocate of Nigeria (SAN) Norrison Quakers is neither against removal of executive immunity or conferment of immunity on lawmakers.

Quakers observed that none of the three arms is superior to the others.

He said: “What is the essence of immunity for the president, vice president, the governor and his deputy? What is the reason? What we were taught was that during the president or governor’s tenure, when you have litigation, whether civil or criminal, they can’t be distracted. It might be a hindrance to their performance, so, for that reason the immunity clause was inserted.

“But if you have for the executive, but none for the legislature and judiciary, what is the essence of immunity then? The presidential system that we operate is unique.”

He said the leaders of the three arms of government should either have immunity or none of them should have.

Quakers said: “I think it’s a good idea. Let us have a level playing field. It’s either we create one where the three arms of government will have immunity and mind you, immunity is not in perpetuity, it only lasts while you are still in office. It does not stop you law enforcement agencies from investigating and trying you when your tenure ends. In Brazil, Lula was arrested and tried after his presidency ended.

“In a situation where the Chief Justice of the Federation was tried while he was still in office, the Senate President of the county was tried while he was still in office, so what stops us, if a person has been found culpable and to have committed some ‘criminal offence’ what stops enforcement agencies from going after him and trying him.

“But that’s another angle, because our system is not structured in a way that guarantees independence of government agencies. Allegiance is to the president and not to the constitution, that’s the problem. We promote personalities and not institutional independence.”

The silk also observed that the Senators’ move might be perceived by some as revenge for the