- By Onogwu Muhammed
One of the most pressing debates in Nigeria today revolves around the continued retention or removal of the immunity clause enshrined in Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Scholars and political analysts have long advocated for its removal, arguing that it contradicts the government’s commitment to eradicating corruption and misappropriation of public funds. Others have defended its retention, while another group has suggested extending it to cover the leadership of the National Assembly and state Houses of Assembly.
In line with these discussions, the House of Representatives recently introduced a constitutional amendment bill proposing the removal of immunity for the vice president, governors, and their deputies.
The bill successfully passed its second reading in the lower chamber of the National Assembly. However, it was quickly rescinded, signalling the deep divisions surrounding this contentious issue.
From the legal and constitutional perspectives, immunity refers to an exemption from duties, penalties, or liabilities that ordinarily apply to other citizens.
According to Black’s Law Dictionary, immunity encompasses various categories, including absolute, congressional, constitutional, diplomatic, and discretionary immunity.
Section 308 of the Nigerian Constitution grants immunity from legal proceedings to certain public officeholders, specifically the president, vice president, governors, and deputy governors.
This form of immunity has historical roots in the concept of “sovereign immunity,” which originated in the era of absolute monarchs under the belief that “the king can do no wrong.”
The rationale behind this provision is to allow incumbents to discharge their official duties without the distraction of litigation. However, this immunity does not prevent criminal investigations while the officeholder remains in power.
Despite these legal justifications, there have been numerous instances where officials shielded by immunity have engaged in corruption and abuse of power with impunity.
This has led many to question whether the clause still serves its intended purpose or if it merely provides cover for wrongdoing.
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Unlike the case in Nigeria, the immunity clause is not explicitly enshrined in the Constitution of the United States of America.
However, as a well-established principle under common law, the courts have recognized various forms of executive immunity, particularly for the president. While the U.S. president does not enjoy blanket immunity from all legal actions, he is granted absolute immunity from civil liability for official acts performed in the course of his duties.
A notable example of this principle in practice is the landmark case of Nixon v. Fitzgerald.
The case originated in November 1968, when Ernest Fitzgerald, an Air Force management analyst, testified before a congressional subcommittee, revealing that certain aerospace developmental projects would lead to a cost increase of over $2 billion. His testimony exposed financial mismanagement and inefficiencies within the U.S. military-industrial complex. Following his testimony, Fitzgerald was dismissed from his position in January 1970 during what the Pentagon described as a cost-saving reorganization.
Believing that his termination was a direct act of retaliation for his public disclosure of military cost overruns, Fitzgerald sued President Richard Nixon, along with several of Nixon’s administration officials, alleging violations of his First Amendment and statutory rights.
In its ruling, the United States Supreme Court, through a lead judgment delivered by Justice Lewis Powell, held that the president is entitled to absolute immunity from civil damage actions for all acts performed within the “outer perimeter” of his official authority.
The court reasoned that the president’s responsibilities include broad discretionary powers, such as overseeing military affairs and making personnel decisions within the armed forces. Given this authority, Nixon was deemed immune from liability for Fitzgerald’s dismissal, even if the act had been carried out with malicious intent or in an unlawful manner.
This case illustrates the principle of qualified executive immunity as practiced in the United States.
While the president enjoys absolute immunity from civil liability for acts performed in an official capacity, this protection does not extend to all aspects of presidential conduct. For instance, a sitting president is not immune from criminal investigations or lawsuits concerning actions taken outside the scope of official duties. Thus, unlike Nigeria’s constitutional provision, which grants broad immunity to certain officeholders, executive immunity in the United States is subject to judicial interpretation and is more narrowly applied.
By the provision of section 308 of the Nigerian constitution, the person holding the office does not even have the right to waive the immunity because any such waiver is ineffective as the immunity is not that of the person holding the office but of that particular office he represents during the tenure of the office.
A fundamental legal issue arises from the proposal to remove immunity for the vice president, governors and deputy governors while retaining it for the president will simply occasioned legislative bias and constitutional abnormalities.
This proposition contradicts the constitutional framework governing the nomination of candidates for executive offices.
Sections 142(1) and 187(1) of the 1999 Constitution establish that a candidate for president or governor must nominate a running mate from the same political party as a prerequisite for a valid nomination. The Supreme Court has repeatedly affirmed that this electoral conjugal between candidates and their running mates are inseparable, indissoluble and legally binding.
A plethora of Supreme Court decisions has conclusively settled the legal question regarding the conjugal nature of the relationship between the candidates and their running mates in an election.
The Court has affirmed that this union is indissoluble, inseparable, and watertight, akin to the phrase “till death do us part” marital vows. Once a candidate and a running mate enter the electoral process together, their fates are permanently intertwined.
This principle was firmly established in Senator Duoye Diri & Ors v. Biobarakuma Degi-Eremienyo & Ors. In this case, the first respondent, Biobarakuma Degi-Eremienyo, who was the running mate to David Lyon, was found to have submitted false information regarding his name. The Supreme Court, in its judgment, handed down an irrecoverable and unforgettable punishment not only on the running mate but also on David Lyon, the gubernatorial candidate of the APC who had won the election.
The ruling underscored the fact that a deputy governor’s ticket is inseparable from that of the governor. Since Degi-Eremienyo was disqualified, both he and Lyon were deemed,, ab initio ineligible to have contested the election in the first place.
The legal rationale behind this decision is deeply rooted in the principle established in McFoy v. UAC, which states that “nothing can be built on nothing and be expected to stand.” Since Degi-Eremienyo was ineligible, the entire ticket was deemed invalid from the outset, as one leg of the structure was faulty.
Against this backdrop, the recent legislative proposal seeking to remove immunity from the office of the vice president, governors, and their deputies while exclusively reserving the protection of Section 308 for the president is not only legally defective but also fundamentally flawed in intent.
The bill was clearly proposed mala fide, reflecting a lack of legislative understanding of the nomination process for these offices. By failing to recognize the joint nature of candidacy for these executive positions, the proposal ignored well-established judicial precedents affirming the principle that a candidate and their running mate share the same legal destiny.
In conclusion, any attempt to strip governors, deputy governors, or the vice president of constitutional immunity while retaining it exclusively for the president defies logic and legal principles. The Supreme Court has repeatedly reinforced that executive tickets are indivisible, and any legislative action that disregards this reality is bound to be legally unsustainable and unenforceable.
•Muhammed, ANIPR writes from Abuja
