IMMUNITY: THE SCOPE AND EXTENT OF SECTION 308 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA - By Mr. Alex Aidaghese

Synopsis:

The much-derided Executive Immunity inherent in Section 308 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, is not applicable once the individual protected under the section ceases to function in an official capacity. Immunity, for all intents and purposes, is office-specific. It is neither perpetual nor inalienable. Therefore, in rendering our judgment on whether to amend or expunge the section from our constitution, we must take cognizance of the fact that not all Presidents, Vice Presidents, Governors, and Deputy Governors are corrupt. Executive Immunity enhances harmony in a democratic political system that would, no doubt, be eroded if our Presidents and Governors were exposed to the vagaries of our judicial system. Arrest and trial of those protected under the section would paralyze activities in the affected states or at the federal level, as the case may be. That was the rationale and legislative intent of section 308 of the 1999 Constitution - defined as the thinking of the drafters based on public policy considerations. On the question of whether the immunity follows a former Governor to the Senate or the House of Representatives, the answer is a capital NO. An ex-governor or ex-deputy who is presently a Senator or a member of the House of Representatives is subject to investigation, indictment, or prosecution to the full extent of the law for any fraudulent conduct authorized by him or executed at his behest while in office as Governor or Deputy Governor. In addition to that, the section does not protect or immunize serving members of the National Assembly from criminal or civil prosecution for unlawful conduct perpetrated while serving as a legislator. Section 308, as written and intended, does not extend to Legislative or Parliamentary Immunity, referred to as Speech and Debate protection. That is the most misunderstood aspect of the section. It does not cover members of the National Assembly. In sum, corruption, embezzlement of public funds, and squandering of riches in Nigeria are seemingly insurmountable, because of the unwholesome and unwritten collaborative resolve of those in the judiciary. A monumental national crisis compounded by the inability of those vested with law enforcement power (AG, Police, EFCC, and ICPC) to develop aggressive mechanisms focused intently on combating abuse of discretionary power (adjournments and injunctions) by judges, as well as, the procedural rigmarole (delay tactics) perfected by defence counsels. Injunctive relief or ex parte order is a discretionary (equitable) remedy - it is not a final judgment on merit. In Nigeria, both equitable reliefs are issued indiscriminately, irrespective of the position of the movant in the lawsuit. In other words, in Nigeria, injunctive reliefs and ex parte orders are defence mechanisms, openly canvassed by lawyers and, most often, granted by judges without evidence or proof of immediate and irreparable harm or injury to the defendant. Availing your client with the defense of interim or permanent injunction in a clear-cut case of embezzlement of public funds, without proof of immediate and irreparable harm to your client if the case continues, is overtly aiding and abetting malfeasance. The Immunity Clause or Section 308 does not apply to that. Therefore, the section should be left intact. The Prosecutor, EFCC, ICPC, and the Police Force must be bold, resolute, and creative in their search for real justice. Our approach to asset forfeiture and recovery of stolen public funds must be aggressive, purposeful, and non-discriminatory. I beg to move.

To Amend or Not to Amend:

At the just-concluded retreat organized by the Ad-Hoc Committee on Constitutional Reform in Port Harcourt in Rivers State, on May 27, 2012, section 308 of the 1999 Constitution that deals with immunity came up for discussion. And as expected, there were strident demands for its review, amendment, or total repeal.  

One, section 308 (1) of the 1999 Constitution of the Federal Republic of Nigeria, does not by any stretch of the imagination shield or immunize any serving member of the National Assembly from indictment or prosecution for any crime committed before and during his or her term of office.

The over-hyped immunity allegedly enjoyed by serving members of the National Assembly from criminal or civil prosecution for criminal wrongdoing or fraudulent engagement is complete fiction. Because, the protection, in the context in which it is perceived by Nigerians, is non-sequitur - it does not exist as such. Therefore, the brouhaha surrounding the alleged immunity enjoyed by "lawmakers" is grossly misplaced, and the assault on section 308 is unwarranted.

And two, the culture of Governors who have already completed their two terms in office as Gveornors, rigging and buying their way to the Senate or the Lower House for the purpose of evading civil or criminal prosecution for the crime committed as Governors is outright ludicrous. Because there is no immunity covering past misconduct. 

Simply put, immunity as it is under section 308 of the 1999 Constitution, as amended, is not about the person or the conduct. It is, explicitly speaking, about the office. In other words, the beneficiary of the immunity clause is subject to investigation at the cessation of the protected period as long as there is probable cause for indictment. 

Our law enforcement agencies (the Attorney General, ICPC, the Police, and EFCC) should wake up to their responsibilities. Section 308 does not shield any member of the National Assembly from civil or criminal prosecution. Period. This is not a matter of debate; it is a statement of fact. Executive immunity is unrelated to Speech and Debate related to Parliamentary Immunity. Also, it does not preclude law enforcement agencies from investigating those protected under the section, for instance, the President, Vice President, Governor, and Deputy Governor for involvement in unjust enrichment. I will address this part shortly in the addendum.

At this juncture, it is worth restating that Section 308 protects only serving President, Vice President, Governor, or Deputy Governor when they are in office. MEMBERS OF THE NATIONAL ASSEMBLY DO NOT ENJOY ANY IMMUNITY FROM CIVIL OR CRIMINAL PROSECUTION UNDER SECTION 308. THE ONLY IMMUNITY THEY ENJOY IS SIMILAR TO WHAT OBTAINS UNDER THE SPEECH AND DEBATE CLAUSE IN THE AMERICAN CONSTITUTION - THAT IS IMMUNITY BASED ON WHAT THEY SAY DURING DEBATES OR DELIBERATIONS IN THE HOUSE OR IN THE SENATE OR IN THE PREPARATION THEREOF. IT DOES NOT COVER THEIR UNJUST ENRICHMENT OR FRAUDULENT ACTIVITIES OUTSIDE OR INSIDE OF THE NATIONAL ASSEMBLY.

For ease of understanding, I would like to reproduce the entire section 308 of the 1999 Constitution verbatim. The Section provides:

(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.

Specifically, Sec 308 (3) reads: “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 Section applies to the “period during which the person holding such office is required to perform the functions of the office.” Not after. In other words, a Senator or a member of the House of Assembly is not that "person" defined under subsection 3 of 308. Therefore, the immunity clause does not by any stretch of the imagination shield any of them from prosecution for criminal wrongdoing that took place while they were in office as Governors or Deputy Governors.

The same is true of the President and Vice President if you have probable cause to indict them after leaving office, based on a prima facie case for unjust enrichment. That's it. It doesn't take rocket science to accomplish that, knowing full well the antecedents of thieving Nigerian Governors.

Rationale and Public Policy Arguments for the Retention of Section 308 of the 1999 Constitution:

In spite of everything, the immunity under section 308 of the 1999 Constitution is well-intended. The individuals protected under the section (President, Vice President, Governor, and Duty Governor) are not suitably placed to enjoy the luxury of time, defending lawsuits, whether frivolous or meritorious, while on active duty.

Our proclivity for filing lawsuits knows no bounds. Removal of that immunity clause from our constitution would in all probability end up jeopardizing our fragile constitutional democracy. Every Ademola, Usman, and Okechuku, as well as members of the opposition parties, would, through frivolous lawsuits and spurious petitions, incapacitate a sitting President or Governor, as the case may be, without regard to judicial ethics or the concerns of Nigerian voters. And in the process, take them off course from real and purposeful governance.

In essence, executive immunity enhances harmony in the political process that would, no doubt, be eroded, if Presidents and Governors are exposed to the vagaries of our judicial system. Adding to that, the arrest and trial of those protected under the section would paralyze activities in the affected states or at the federal level, as the case may be. That was the rationale and legislative intent of section 308 of the 1999 Constitution - defined as the thinking of the drafters based on public policy considerations.

There is no doubt that the benefits of the Immunity Clause outweigh the defects. The defects, if at all, are traceable to the inability of those empowered with law enforcement obligations to make our Constitution live up to its real purpose as the supreme law of the land.  To that extent, it requires diligent prosecution as expected of true fiduciaries (EFCC, the Police, ICPC, and the AG). It's all about interpretation ability, audacity, and genuine intent to fight and surmount the ills of corruption and unjust enrichment that irredeemably wrecked a supposedly great nation-state.

We should not act on the impulse of the moment and abrogate a constitutional framework that is imbued with the right ingredients to serve notable national goals - growing our democracy and simultaneously, ensuring stability in the political system.

Granted, our core leadership team is made up of some of the most unprincipled, shameless, and unrepentant opportunists you could ever find on the face of the earth; be that as it may, we cannot embark on a constitutional amendment campaign just to accommodate our idiosyncrasies and every unfortunate aberration. That's retrogressive political evolution. What would you do, if God willing, we are fortunate to have selfless and honest leaders at the helm of affairs? Amend the Constitution once again to align with the new reality? No. We can do better.

We must be proactive, creative, and sincere in our approach to the war against corruption and the pursuit of asset recovery and forfeiture. Those who are known to be corrupt should be apprehended, prosecuted, and made to forfeit their illegally acquired wealth to the state as soon as they cease to function under the protection of section 308. That is the best approach - trace and seize the funds or their bank accounts immediately. By taking that measure, you have automatically rendered them morally bankrupt and financially incapacitated. Without the stolen funds, they cannot fight the criminal justice system by hiring and deploying an arsenal of the best and brightest in the legal profession to impede prosecutorial flow. 

According to the FBI (Federal Bureau of Investigation), "Many criminals are motivated by greed and the acquisition of material goods. Therefore, the ability of the government to forfeit property connected with criminal activity can be an effective law enforcement tool by reducing the incentive for illegal conduct. Asset forfeiture takes the profit out of crime by helping to eliminate the ability of the offender to command resources necessary to continue illegal activities."

Today, there are thousands of fraudulent Nigerians out there on the street, including former Governors and former Deputy Governors, as well as former Presidents and former Vice Presidents, known to have fraudulently enriched themselves with public funds. They are living free and living large on our wealth, even though they are no longer under any protection of the immunity clause. Section 308 is office-specific. It is over at the end of the protected period. 

Therefore, the Section should be strengthened to serve the intended legislative purpose. Any dilution will erode its efficacy. Immunity and unjust enrichment are mutually exclusive. The rationale was to engender purposeful governance, to ensure uninterrupted governmental activities at the state and federal levels, consistent with fundamental principles of democracy and the rule of law. That is the thesis of this essay. The major constraint is the nonchalant culture prevalent within the judicial branch, which borders on procedural rigmarole - unnecessary adjournments and various injunctive orders, without reasonable excuse or a show of irreparable harm or injury to the defendant.

Moving Forward:

Fellow Nigerians, whatever we do, we must not lose sight of the underlying imperative, designed to engender consistency and robust democratic values in our troubled political system that Section 308 represents. Therefore, we must be bold about consolidating those democratic values, without regard to the race or the social status of the culprits before and during a trial. That is the first step to renewing Nigeria. It is about equal rights and justice.

Availing your client with the defence of interim or permanent injunction in a clear-cut case of embezzlement of public funds as perfected by our reputable and highly respected lawyers is overtly aiding and abetting malfeasance. In Nigeria, both equitable reliefs are issued indiscriminately irrespective of the position of the movant in the case. In other words, in Nigeria, Injunctive relief is a defence mechanism. 

And that, my friends, is our real problem; not Section 308. If your hands are clean, and you rightly believe that you are innocent as charged, then, be willing to stand trial and defend the allegation of unjust enrichment instituted against you. This is the time we should all stand up and demand curtailment in the grant of injunctions and other discretionary reliefs by our Judges. There is a threshold that the movant must meet to sustain any motion for injunctive relief. That, of course, is outside the scope of this essay.

As an addendum, I want to make it abundantly clear that I am not against capitalism, private ownership, or the private acquisition of wealth. However, I am unequivocally against over-leveraged capitalism and the prevailing culture of impunity and blatant abuse of political office by those vested with political power. To keep enriching yourself with public funds that you and your children cannot exhaust, buying cars you cannot drive, or landed property you barely use shows stupidity. It is not fair. It is not right. And it is morally repugnant. Therefore, it must stop for a resurgence of the true meaning of justice, equity, and the rule of law.

Thank you.

Mr. Alex Aidaghese, LL.M, MCSE June 04, 2012

Addendum:

Introduction to Judicial Activism

Making a Distinction between Criminal Wrong Doing and the Profits of Crime, Otherwise Known as Unjust Enrichment.

(By the way, what you are about to read is not part of the essay. It is merely an academic exercise for those who care. For a start, the likelihood of it happening in real life or in this generation in Nigeria is very remote).

The question is: Can we indict and prosecute a sitting President, Vice President, Governors, and Deputy Governors for fraudulent and unjust enrichment perpetrated while in office under the premise of "a nominal party" according to Sec 308(2)?

The answer is not absolute. But first, you must be ready to engage in the semantics war with the presiding judge and the defence counsel (the lawyer representing the defendant) concerning the definition or meaning of a nominal party.

We could, in all sincerity, institute a civil action to recover or recoup the fruits of crime or unjust enrichment, if we are, applying a preponderance of the evidence standard, able to prove that the owner of a specific property or bank account (e.g., President, Vice President, Governor or Deputy Governor) is only a nominal party - someone not directly involved in the case. But he or she is nevertheless connected to the case by his or her ownership of the property or bank account in question.

In other words, they are immune, but not their illegally or fraudulently acquired wealth. EFCC is within its power to seize and forfeit their properties and bank accounts to the State as long as we can prove that they are fruits of corrupt enrichment. Thus, it is probable to conclude that Sec 308 (2) does not shield or immune a sitting President, Vice President, Governor, or Deputy Governor from forfeiting to the Nigerian people, landed properties or Bank accounts fraudulently acquired if a civil action is instituted against such landed property and bank accounts.

Once again, Sec 308 (2) provides: “The provisions of subsection (1) of this section [that is the immunity] shall not apply to civil proceedings against a person [that is President, Vice President Governor and Deputy Governor] 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 [not directly connected].”  It is the same thing as arguing: since you are not directly connected (a nominal party), invariably your houses and bank accounts are not immune from seizure and forfeiture because the legal action is instituted against your property, and not you as a person.

To that extent, owners of a fraudulently acquired property or bank accounts - for example, President, Vice President, Governor, and Deputy Governor - cannot avail themselves of the defence of immunity under this section, if they are only indirectly or tangentially connected to the action - a nominal party. Thus, Subsection 308(2) provides cover for EFCC, ICPC, and AGF, if they want to go after the embezzled funds or landed properties of a serving President, Vice President, Governors, or Deputy Governor. Provided the action is in rem (property) and not in personam (the person).

I want to reiterate that the action is only after the fruits of crime and not the crime itself. Adding to that, the case is not against the perpetrators of the crime or fraud, but just against the fruits of corruption. If you want to call it prosecutorial activism, so be it. As I said earlier, you must be ready to do battle in the English Language about who "a nominal party" is. So it is not just establishing a prima facie case for unjust enrichment, but being able to prove by a preponderance of the evidence the extent of the disconnect between the perpetrator and the unfair enrichment (bank accounts and property) that would justify civil trial or forfeiture.

Finally, given that it is a civil trial, you do not need to prove anything beyond a reasonable doubt. Even if that is the standard (proof beyond a reasonable doubt), you do not need to crack your brain worrying if you can prove your case beyond a reasonable doubt, when trying to convict a Nigerian thief. The evidence is readily available. He is a stupid thief who rightly or wrongly believes that he cannot be condemned, even when caught in the act - he has a substantial accumulation of your money - our money - to hire the best of lawyers to pervert the justice system through ridiculous motions for adjournment or injunction.

(Be that as it may, it requires legal erudition and a willing court to be able to argue a motion based on the above premise. By the way, this is merely an intellectual voyage or a fishing expedition, because no Attorney General or IGP would in his right sense institute a case against a sitting President or Governor in Nigeria to recoup illegally acquired wealth).

Thanks once again for coming this far. June 2012.

Mr. Alex Aidaghese 

Blogger's Comment:

Celebrating a Rare Accomplishment, 

Posted, July 01, 2016. 

This essay is not a Term Paper; it is written with the understanding that every Nigerian, including those with a High School Diploma (Grammar School level), can read it and understand the arguments contained therein. What makes it so intriguing today is that at the time of its writing in June 2012, we did not anticipate the likelihood of it emerging as one of the most searched and the most-read pieces of legal analysis in the history of our involvement in social media. If you are still against the Immunity Clause, just pause and ask yourself, how come the very well-known "thieving Nigerians" who do not enjoy any modicum of Immunity are not apprehended, tried, or jailed. Ask yourself why ex-Governors who depleted their states' treasury and bogus Petroleum Marketers who deliberately and knowingly defrauded NNPC and PPPRA of the subsidy funds are still living large and living free on our wealth, despite the proof beyond reasonable doubt finding of culpability established by the Aigbojie Imoukhuede's Investigatory Pannell that was set up by President Jonathan. These are verifiable facts, and not legal or constitutional analyses by me. 

Writing this essay was not a daunting task. I was sure of my facts as well as the legal and constitutional issues implicated. However, organizing them coherently, editing and fishing for grammatical errors were enormously challenging. It took me months to coordinate the various sections for an easy read. 

The goal was to rebut the ignorance that was successfully perpetuated as the true meaning of the Immunity Clause by the news media and our political leaders, while the legal system remains helpless. 

One, the essay successfully put a stop to the celebrations of immunity in the wrong places in our political system - Ex-Governors, Deputy Governors, former Presidents, and former Vice Presidents as well as the members of the National Assembly are now aware that they do not enjoy immunity protection in our Constitution. If EFCC, ICPC, and the Attorney General of the Federation are not doing their job, that's a different matter entirely. 

And, two, the essay helps in identifying and defining the much-overlooked abuse of discretional power, and professional ethics at the Bench, and the Bar in Nigeria. Political leaders, columnists, and commentators didn't see them as the main issues. We did.  And we won the arguments. It's just about common sense.  
  
So, when in 2014, the Constitutional Review Committee set up by the National Assembly, voted unanimously for the retention of the section, it was, to me, a most welcoming development. Indeed so, because the Press Release issued by an influential Nigerian Bar Association Chapter following the vote for retention in the NASS, was a regurgitation of the arguments contained in the Rationale and Public Policy Arguments section of this very essay. Yes, it played a dominant role throughout the debate. 

We can now, at least agree on the main trouble with the Bar and the Bench in Nigeria. And on that, a consensus has emerged - indiscriminate and questionable granting of Interlocutory Orders, Injunctions, whether interim or perpetual by judges, and the deliberate delay tactics most often resorted to by influential lawyers via procedural rigmarole, cumulative evidence, and undecipherable legal mumbles-jumbles as argued by this author throughout the essay. 

May God Bless the Good People of Nigeria. 

Mr. Alex Aidaghese