IMMUNITY CLAUSE OF SECTION 308 OF THE NIGERIAN CONSTITUTION

Edited by: Asy"kobi

Meaning and limits of section 308

The provisions of section 308 of the Constitution came up for interpretation in the case of Abacha vs. Fawehinmi, wherein his lordship, Uwaifo, J.S.C., held thus:

The immunity provided for does not apply to the person in question in his official capacity or to a civil or criminal proceeding in which such a person is only a nominal party. The immunity is to protect such a person from the harassment of his person while in office for his action done in his private capacity before or during his tenure in office. In fact in the present case, the suit is against the “Head of State and Commander-in-Chief of the Armed Forces (General Sani Abacha) ” and it is in respect of his alleged action in his official capacity. The immunity provided for in the Constitution does not arise and does not apply.

Also, in Rotimi vs. MacGregor, the then Military Governor of Western State, 1st appellant herein, was sued personally over a parcel of land. The Supreme Court held that by virtue of a similar provision in the 1963 Constitution, the action was incompetent.

The provisions of section 308 also came up for interpretation in Fawehinmi vs. I.G.P., where the Court of Appeal held as follows:

The simple and ordinary meaning of section 308(1) is that the person(s) to which the provisions apply should not be made to face civil or criminal proceedings in court. The word “proceedings” after “civil or criminal” makes it clear and incontrovertible that what was intended was proceedings in court or tribunal and not police investigations. Section 308 does not shield or protect any of the persons named therein from police investigation. But such investigation should be done as not to infract on the provisions of section 308. The word “otherwise” in section 308(1)(b) is to cater for and cover situations not specifically provided for under the paragraph but which may result in the arrest or imprisonment of the person concerned.

In affirming this decision, the Supreme Court,held further that police investigation of the immune person cannot be equated with criminal proceedings, because criminal proceedings are commenced when an accused person is arraigned before a court, or at least, when an information or a charge has been filed against him in court. It also held that police investigations could be carried out upon a criminal allegation against a Governor “so long as the police do not encounter him in the course of their investigation.” Uwaifo, J.S.C., who read the lead judgment of the Court, held on page 1386 rather rhetorically thus:

Suppose it is alleged that a Governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented or damaged part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept in a particular bank or used it to acquire property. Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be precluded in section 308 from investigating….? The police clearly have a duty under section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available…. 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 the pretext that a Governor cannot be investigated is a disservice to the society.

The Court of Appeal, in Ali vs. Albishir, held that a careful examination of the entire provisions of section 308(1) and (2) of the 1999 Constitution suggests that the intendment of the framers of the Constitution was to provide a shield for the person of the President, Vice President, Governor or Deputy Governor from frivolous or vexatious litigation in respect of personal or criminal proceedings that would distract him from the serious business of governance. Quoting copiously from previous decisions, his lordship, Kekere-Ekun, J.C.A., as he then was, held on page 1710 thus:

In my respectful view, it is clear from the rationale for section 308 as explained by the learned jurists above, that the immunity provided for therein is to protect the incumbent from civil or criminal proceedings being instituted “against” him in his personal capacity while in office.

Thus, in G.E.C. Limited vs. Duke, the Supreme Court held that while the persons named in subsection (3) cannot be proceeded against, they can sue in their personal capacities even during their tenure of office, to enforce their rights, notwithstanding the provisions of section 308.

Exceptions to section 308

The provisions of section 308 are restricted to the persons named therein and do not cover members of their families. Thus, it has been held that the immunity granted under this provision is restricted to the persons named therein and cannot be extended to cover their children; and further that even though it covers such named persons, the cover is not extended to when they leave office but is limited to when they are in office.

The second exception or limitation is that the immunity lasts only during the tenure of the protected official and cannot be extended even by a second thereafter. In Alamieyeseigha vs. Teiwa, the 2nd and 3rd respondents had, through a motion ex parte sought and were granted leave of court to compel the 4th respondent (the Chief of Air Staff) to dismiss the appellant (who had now become the Executive Governor of Bayelsa State) from service for the offence of cheating in an examination at the Command and Staff College, Jaji, in 1991. Leave was also granted them to have the matter reported to the Inspector-General of Police and the Attorney-General of the Federation for prosecution of the appellant. Thereafter, an originating motion was served together with the enrolled order granting leave, on the Chief of Air Staff who refused to show up in court. Consequently, the substantive motion was also granted as prayed. Meanwhile, the appellant who was directly affected by all the orders made by the learned trial Judge was not made a party to the action and was also not served with any process relating thereto. Immediately he got wind of the developments, he applied by way of motion to have the orders set aside. The learned trial Judge refused the application. Appellant thereafter sought for and was granted leave to appeal to the Court of Appeal as a person interested. After a thorough consideration of section 308 of the Constitution, the Court of Appeal allowed his appeal. It held that as long the appellant held the office of Executive Governor of Bayelsa State, he was completely insulated against prosecution, civil or criminal, and that a breach of section 308 in any form renders any such process or proceedings null, void and of no moment. Also, that failure to put the appellant on notice in a matter that was injurious to him not only breached section 36 of the 1999 Constitution, but also section 308 thereof. Further that the immunity granted under section 308 cannot be waived. This is because the immunity granted by the section does not belong to the person concerned, but to the State he represents. However, that the moment the person concerned leaves office, he ceases to enjoy the immunity.

The Supreme Court, in tandem with existing decisions on the issue, also rolled out at least two exceptions or limitations to this rule in the case of Hassan vs. Aliyu, as follows:

Section 308 is a complete bar to civil and or criminal suits against the named officials during their tenure of office. The provision clearly suspends the right of action or the right to judicial relief. In other words, the right of action is put in the limbo until the expiration of the tenure of office of the affected official, which right of action is revived as soon as that tenure expires.

The immunity donated by section 308 does not apply to actions instituted against the protected officials in their official capacities or where they are only nominal parties. The protection is also not available when they are sued in election petitions challenging their election into office.

Also, in Manuwa vs. NJC, the Court of Appeal held, relying on the decision of the Supreme Court in Tinubu vs. I.M.B. Securities Plc, supra, at page 690, that where a person is sued in his official capacity, the immunity granted under section 308(1) will not avail him.

The limitation in section 308 does not also apply to an election petition or a suit challenging the protected official’s election into office. Thus, in Obih vs. Mbakwe,the Supreme Court held that a similar section under the 1979 Constitution did not shield a Governor from being sued by his opponent over an election petition. In following this decision, the Court of Appeal, in Alliance for Democracy vs. Fayose, held that the immunity enjoyed by a Governor under that section applied to ordinary civil and criminal proceedings and not to election petitions wherein the election of the Governor is being challenged.

The rule that section 308 of the Constitution does not apply when the election into office of any of the named officials is being challenged was rightly and correctly extended by the Court of Appeal in Enyadike vs. Omehia,to cover when such named official is sworn in, since the challenge is against his election into office.

Conclusion: Section 308 is good legislation in Nigeria

In conclusion, it is hereby submitted that section 308 is a good piece of legislation, given the circumstances of Nigerian politics. One should not lose sight of the tribal, ethnic, religious, egoistic and sentimental manner politics is practiced in Nigeria, hence section 308 is an insightful shield against such anti-public tendencies that have crept into Nigeria’s political landscape.

Also, as found by superior courts of record above, without section 308, the protected officials will be unduly harassed, persecuted and consequently distracted from performing their official duties. Arguments that this constitutional shield should be lifted so that bad elected officials could be dealt with fly in the face of other constitutional safeguards, including but not limited to the right of the electorate not to vote for them or the right of the legislature to have them impeached from office.

Finally, as also shown above, the immunity granted by the section does not extend to the period they have left office. We have many former State Governors standing trial today for crimes they had allegedly committed whilst still in office. It is on record that Governor Lucky Igbinedion, former Governor of Edo State, was convicted for crimes he had committed while he was in office. Even in respect to civil wrongs they would have committed while in office, superior courts of record in Nigeria, as shown above, have held that right of action against their persons is only suspended till they leave office. This then means that time will not start running in order for statutes of limitation to apply until after such officials leave office.