Blazing the Trail: Laying the Foundation for Criminal Justice Reforms in Nigeria

June 04, 2012.  

Culled from "IMMUNITY: THE SCOPE AND EXTENT OF SECTION 308 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA."

The much-derided Executive Immunity inherent in Section 308 of the 1999 Constitution of the Federal Republic of Nigeria is not applicable once the individual covered 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. 

In rendering our judgment on whether to amend or expunge the section from our constitution, we should 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 are 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 Governor to the Senate or the House of Representatives, the answer is a capital NO. An ex-Governor or Deputy who is presently a Senator or a member of the House of Representative 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. 

Besides, the section does not protect or immunize serving members of the National Assembly from criminal or civil prosecution for unlawful conduct while in an active capacity 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 and robust mechanisms focused intently on combating abuse of discretionary power (adjournments and injunctions) by judges, as well as, the procedural rigmarole (delay tactics) perfected by defense counsels. 

Injunctive relief or ex parte order is a discretionary (equitable) remedy - it is not a judgment on the merits concerning the substantive suit. 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 defense mechanisms, canvassed by lawyers and granted by judges without evidence or proof of immediate and irreparable harm or injury to the defendant - a  blatant perversion of the course of criminal justice.

It is logically apt to conclude at this juncture that as a lawyer, 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 situation continues is overtly aiding and abetting malfeasance. Immunity or section 308 has nothing to do with that. Therefore, the section should be left intact. We (the Prosecutor, EFCC, ICPC, and the Police Force) must be bold, resolute, and creative in our search for real justice. And our approach to asset forfeiture and recovery of stolen wealth/funds must be aggressive, purposeful, and nondiscriminatory. I beg to move.

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.

You steal, you steal! Period! Availing your client with the defense of interim or permanent injunction in a clear-cut case of embezzlement as perfected by our reputable and highly respected lawyers is overtly aiding and abetting malfeasance. Injunctive relief is a discretionary (equitable) remedy - it is not a judgment on the merits concerning the substantive case. A Preliminary Injunction or Temporary Restraining Order maintain the status quo pending the hearing or the outcome of an application to protect irreparable harm to the plaintiff or the defendant, as the case may be. A Permanent Injunction, on the other hand, is after the underlying issue is resolved. But 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 defense mechanism. 

He who comes into equity must come with clean hands, goes a legal maxim. Not exactly in Nigeria. Thus, the question beg to ask, what is so irreparable damage or harm about standing trial to defend an allegation of fraudulent conduct against you? 

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, instead of resorting to procedural mumble jumble to circumvent real justice. And that, my friends, is our real problem; not Section 308. This is the time we should all stand up and demand curtailment in the grant of injunctions and other discretionary reliefs by our Judges. It is now left to EFCC to train its lawyers on how to surmount any of such motions in our regular courts. Because 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 or private ownership or 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.

Analysis. 

We wrote this essay 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. 

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 piece of legal analysis in the history of our involvement in the social media. If you are still against the Immunity Clause, just pause and ask yourself, how come the very 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, in spite of 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 analysis by me. 

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 President, 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, 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.