Immunity clause hindering corruption war – Lawyers

CJN Justice Tanko Muhammad and Abubakar Malami, AGF

 Lawyers have expressed divergent views on the concept of the immunity clause, which has been identified as a major hindrance to the speedy determination of corruption cases in Nigeria. The immunity clause is a legal provision for protecting some categories of public officers from any civil or criminal proceedings during their time in office. 

How this provision became statically ingrained in the Nigerian legal system is surprising considering the high rate of impunity and abuse of rule of law by some political office holders. But legal historians say the concept originated from the English common law system, which Nigeria adopted from her colonial masters. Section 308 of the Nigerian Constitution 1999 made the elaborate provisions on immunity for public officers. It provides in sub-section (1) (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.”

“The section provides in sub-section (2) that 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.” There have been several instances where the immunity clause prevented civil and criminal cases from proceedings against some political officeholders. The cases of some governors have been suspended following their election as governors. Among them are Ahmadu Umar Fintiri (Adamawa), Bala Mohammed (Bauchi), who are facing criminal cases in court. However, the cases have been suspended owing to the governors now being covered by the immunity clause in Section 308 of the Nigerian Constitution. Fintiri, who was a former speaker of the state House of Assembly and acting governor, was facing a five-count charge bordering on bribery, and money laundering alongside Mayim Construction and Properties Ltd before Justice A.R. Mohammed of the Federal High Court, Abuja Division. He was alleged to have laundered state funds valued at N1.9bn through his Naira and Dollar bank accounts, and making payments for the purchase of landed properties in Abuja. He was alleged to have used N220m to acquire property during his time as acting governor for three months in 2014. The EFCC revisited the case of the former FCT Minister Bala Mohammed in April 2019 shortly before his inauguration as governor. The case was reassigned from Justice Abubakar Talba of the FCT High Court to Justice Yusuf Halilu of the same court. The EFCC alleged that Mohammed made a false statement that he acquired a house at No 2599 and 2600 Cadastral Zone AO4 Asokoro District Abuja and other houses in Abuja through mortgage facility from Aso Savings and Loan Bank Plc when he received them as gratification for performing his official duties. Before the 2019 allegations, the ex-minister was initially charged in December 2016 and May 10, 2017, on allegations of abuse of office, false declaration of assets and fraud to the tune of N864m. He was also accused of receiving N550m in bribes from Aso Savings and Loans Plc concerning properties in Abuja during his tenure in 2014. Also, petitions were sent against former governors who were still serving and the decision was that they can only be investigated not prosecuted pending the conclusion of their tenure. For instance, the EFCC was investigating former governor of Ekiti State, Ayo Fayose over allegations of collecting the sum of N1.3bn from the office of the National Security Adviser, Col Sambo Dasuki. He was only formally charged upon his handover in October 2018. Reacting, Prof Ernest Ojukwu (SAN) said the immunity clause is a temporary provision, which lapses at the end of the tenure of political office holders and they can face criminal and civil litigation for the infractions committed during their tenure. “The reason for the immunity provision is not to protect the individual but to protect the state governance from distractions such leaders may bring to governance if while in office they are subjected to criminal and civil proceedings,” he said. On his part, E.M.D. Umukoro Esq posits that the clause has its plus because it prevents unnecessary distractions for some political officeholders. “Unfortunately, the Nigerian politicians in their criminal ingenuity appear to see it as a protective cocoon and an avenue to loot the treasury dry using all manner of criminal creativity to cover their tracks,” he said. “As to the way it can be removed; it is only by amending the constitution. The process is for the National Assembly and the State Houses of Assembly to by 2/3 majority remove same and then is assented to.” Oluwatosin Ojaomo Esq said he has been advocating for the removal of the immunity clause from the constitution because it was inherited from the British who believe that the king can do no wrong. “My point remains that removal of the clause is not just enough because Nigeria has no constitution but military decree cloned in form of a constitution. The Nigerian people have no constitution made by them,” he said. “The immunity clause is a constitutional assault on the Nigerian people because immunity is a licence to impunity,” he added.