SAMBEM PROJECT

IMMUNITY CLAUSE UNDER THE NIGERIAN 1999 CONSTITUTION;A CURSE OR A BLESSING?

immunity clause is not alien to the Nigerian history however, the foreign concept was formally enshrined in section 308 of the 1999 Constitution(as amended). Immunity clause under the Nigerian Constitution being a curse or a blessing is not only a current topic but equally controversial and intriguing. After several years of military rule, Nigeria has returned to a democratic rule since 29 May, 1999. However, the experience so far since Nigeria has returned to democratic rule shows that all has not been well with our democratic experience, especially as it affects the immunity of chief executives from judicial proceedings. Of interest to this writer was the statement made by General Muhammed Buhari (Rtd.) former Nigeria military Head of State and the Presidential candidate of a political party1 during the 2011 elections on March 1st 2011,he said: We will amend the Constitution to remove immunity from prosecution for elected officers in criminal cases. Preliminarily,the first question that comes to our mind is what is immunity in this context? According to Bola Ajibola (SAN),the answer to this question is simple; ‘it is nothing but another word for exemption’

In The Democracy Question and Election Management in Africa, Mato, Kabiru (ed.), pp223-237., 2010

This work critically examines the immunity clause within the Nigerian Constitution, which protects certain political officeholders from prosecution while in office. The study explores the legal framework surrounding the clause, analyzing its intent, scope, and judicial interpretations. It also addresses the political dimensions, focusing on how the clause has been exploited for personal and political gain, often undermining accountability and justice. By contrasting legal theory with political practice, the paper sheds light on the implications of the immunity clause for governance, rule of law, and the fight against corruption in Nigeria.

African Social Science and Humanities Journal, 2022

The Nigerian 1999 Constitution enshrined an outrageous and controversial clause known as the 'Immunity Clause' in Section 306 of the Constitution which provides maximum protection for the executive office holders at the Federal and State levels. Hence, the President, Vice President, Governors and their Deputies are immune from any investigation or sanction during their tenure in office even if they commit an offence or a breach of trust such as corruption. This study analysed critically the provision of the immunity clause and its effects on engendering corruption by the executive office holders in Nigeria. The study empirically examined top political office holders who hold executive offices from 1999 to 2020 that were under investigation for protected corrupt practices during their office days. The study utilised the secondary sources of data collection because the paper is a conceptual descriptive one. Sources such as books, journal articles, newspapers, reports and internet sources are utilised. Elite Theory was used to strengthen the literature in the work. The data collected were analysed and interpreted using content analysis where discussions and interpretations were made using the context of the existing knowledge for contribution. The work discovered that the presence of the immunity clause is preventing the fight against corruption from being actualised and it is helping in escalating corrupt practices. The work recommends among other suggestions that the clause should be removed and allow the executive office holders to face their actions even while in office to ensure transparency.

This research paper provides a comparative analysis of immunity clauses in Nigeria, the United State of America, and Australia. Immunity clauses are provisions in statutes or constitutions that exempt certain individuals or entities from legal liability. The paper examines the historical development, scope, and application of immunity clauses in each jurisdiction, highlighting the similarities and differences. The research reveals that while Nigeria's immunity clause for its potential to shield public officials from accountability, the US and Australia have more limited and nuanced approaches to immunity. It is a right peculiar to some individual or body, an exception from some general duty or burden, a personal benefit granted by law contrary to the general rule. It is recognized even by the International Court of Justice. Section 308 of the Constitution of Federal Republic of Nigeria 1999 (as amended) prohibits in clear terms, the commencement of civil and criminal proceedings against The President, Vice President, Governors and Deputy-Governors in their personal capacities; the Nigerian style of immunity is absolute in the sense that the beneficiaries of this constitutional immunity are excluded from both civil and criminal proceedings in personal capacities while in office. It is "Ratione Personnel". Immunity clause was accepted in the constitution for the purpose of protecting the dignity of the offices of those exempted, not the necessarily the individual office holder as such, so as to check a floodgate of law suits, some of which might be frivolous, that may impair government functions and cause unnecessary political distraction. It was meant to provide the incumbent a free hand and mind to perform the duties and responsibilities of his office without distractions from litigation. The "immunity Clause" has generated a serious national debate as to its retention or removal from our Constitution. This paper using the doctrinal approach, critiqued the provision of immunity clause in the Constitution, examines its pros and cons and recommends ways of curing the defect so as to promote the rule of law which is characterized by the doctrine of equality before the law under which every citizen of a country, no matter how highly placed is subject to the authority of the same law. It was recommended that the immunity clause should not be expunged from the Constitution but rather be qualified and retained. It should also not be extended to any other arm of government.

Some people are always cover their abuse of office and hide it under the immunity clause, and thus is common in Nigeria. Their believe is that the immunity clause in 1999 Constitution of Federal Republic of Nigeria is license for them to embezzle and misappropriate public funds. On the contrary Islamic law does not distinguish between the rulers and the ruled in the application of law. The believe of the law is that the law which applies to the lead is equally applies to the leaders there is no distinction between the two of them. Although, this did not mean that Islamic law did not give respect to the leader, rather, the leader should respect the law of the land. The leader according to Islamic law should be honest, upright, trustworthy and show exemplary leadership in the society.

2008

This paper examines Legislative immunity in practice in the Nigerian democracy with reference to other jurisdiction in the world, especially the lack of standards of ethical behaviour by legislators and clear parameters for prosecution of elected officials that are greater indicator of the abuse of immunity, than the legal scope of the immunity. The meaning, historical, types of the parliamentary immunities, the waiver of the immunity, possible shortcomings and institutional approaches to limiting immunity abuse, especially as it relates to corruption. From the onset is apposite like in study of concept to examine the meaning immunity and privilege.

Benin Journal of Public Law, 2019

Commentaries on the immunity provided for in section 308 of the 1999 Constitution of Nigeria have consistently disapproved of its retention in its current scope. The immunity which is for the executive only, protects against personal criminal or civil liability during term in office. While some writers call for its outright abrogation, others prefer a reduction in the scope of protection offered by limiting it to civil liability only. The calls for a reform to the immunity provision is anchored on the prevalence of abuse of office in the form of unjust enrichment and other sundry breaches of public trust by elected officials. In earlier publications on the subject, I argued that immunity is necessary for the three branches but should be limited to protection from personal liability while acting in official capacity which is what is contemplated by the extant law. I also disagreed with the immunity-corruption nexus canvassed by others. Due to its persistence in the commentaries, I investigate with the aid of time series whether there is a correlation between the scope of immunity and the level of corruption in a country. This task was carried out by observing the effect of the immunity provisions of Botswana, Madagascar, and Nigeria on public sector corruption using ten years Corruption Perception Index. The finding was that there was no correlation between scope of immunity and level of corruption in the three countries. Rather, country performance on the Democratic Index was found to be a more credible explanation for the remarkable differences in public sector corruption ranking.

International Journal of Law, 2019

Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), shields the President, the Vice-President, the Governor and the Deputy Governor from civil and criminal proceedings, arrest, imprisonment, and court processes. This constitutional provision is termed “immunity clause.” This paper argues that while immunity clause carries with it the legal effect of protecting these officials from litigations that could interfere with their public functions, it has been abused by most, if not all, beneficiaries who brazenly looted public coffers and, unashamedly shielded themselves under the constitutional cover of section 308. It further contends that executive corruption under the guise of immunity clause has not only impeded our nascent democracy but threatened national development. The paper recommends inter alia the amendment of section 308 of the Constitution of Nigeria.

2019

Immunity of International Organisations, Diplomats And Consular Agents From Local Suits under Nigerian Law is a long established principle of International Law which basically states that a representative of a sending state cannot be dragged to court of the receiving state. The basis of which is, amongst others, to accord the officials of the sending states the same privileges enjoyed by officers of the receiving state in the sending state. International law is replete with alternative theories attempting to justify the practice of diplomatic immunity, the most popular of which are personal representation, the theory of extraterritoriality and the theory of functional necessity. The aim of this paper is to attempt a comparative examination of the extent of immunity and privileges enjoyed by Diplomats, Consular Agents and International Organisations under the applicable law with particular reference to Nigerian jurisprudence. The paper is divided into four parts. Part one introduces the paper and discusses briefly, the theories of immunity; Part two discusses the two major approaches to immunities—Absolute Approach and Restrictive Approach. Part three discusses the Vienna Convention on Diplomatic and Consular Immunites. Part four criticizes the local law—Diplomatic Immunities and Privileges Act, 1962 through applicable cases.

The University of Zambia School of Law , 2019

This research assesses the changes brought about by the Constitution of Zambia, 1991, (as amended by Act No. 18 of 1996 and Act No. 2 of 2016) on the Presidential immunity clause and its effect on the accountability of the President to the people for their commissions and omissions. This research is necessitated by the knowledge gap as to whether the Presidential immunity clause in Zambia makes the President accountable as required by international standards. Therefore, this research considered whether the Presidential immunity clause as provided by the Constitution of Zambia, 1991, (as amended by Act No. 18 of 1996 and Act No. 2 of 2016) in Article 98 is in consonance with the international standard as set under the United Nations Convention against Corruption. It further considered whether the said Article 98 is good for governance and national development at large. It also examined the concept of accountability, and its nexus with the notion of Presidential immunity. This research relied on desk research as it sourced its data from primary sources of law by an analysis of Zambian legislation, judicial precedent, as well as international Conventions. With that said, the findings of this research were that first, the 2016 Constitution amendment providing for the immunity of the President in Zambia is not good for governance as the President is hardly accountable for acts and/or omissions because of the illusory procedure for the removal of their immunity. Secondly, it was found that the impact that the Presidential immunity clause has on accountability and transparency is below the international standard as set under the United Nations Convention against Corruption. Lastly, that the immunity provision as provided for in Article 98 of the Constitution of Zambia, 1991, (as amended by Act No. 18 of 1996 and Act No. 2 of 2016) is not good for the development of Constitutionalism in Zambia, as the Article has to a higher extent undermined the rule of law. The recommendations from the research are that first, Zambia should amend Article 98 of the 2016 Constitution and give the lifting of the Presidential immunity to independent bodies like the Anti-Corruption Commission and the Office of the Public Protector, as these are independent bodies, operating outside the three arms of the Government, aimed at fostering accountability. Secondly, Article 98 of the 2016 Constitution of Zambia should be amended to include a number of crimes constituting high treason, including corruption, from which the President shall not be immune. Thirdly, the Republic of Zambia should amend Article 98 of the 2016 Constitution of Zambia and remove the President’s immunity for acts committed in his personal capacity. Lastly, that Article 98 of the 2016 Constitution of Zambia should be amended to allow the automatic removal of the former President’s immunity from civil proceedings, once they leave office.