Complexities Of Constitution Without Immunity Clause

culled from Independent, November 26, 2005 

The ongoing anti-graft war, the prattling all over the place especially in the media about transparency, accountability and probity on the part of elected political office-holders in the country, have indeed all contributed to the renewed clarion call from many quarters for the outright removal of the part of the Constitution conferring immunity on some public officeholders. Then, the recrudescence of glaring official corruption among officeholders has led some political officeholders to (probably by way of exonerating themselves from the overt corruption observed among their colleagues) advocate for its removal.

The reasons being given by those who canvass for the removal of immunity clause, like those mentioned above are not without merit. And as held by Justice Chukwurah Nnamani in his "Immunity Clause and the Supreme Court," published on page 27 of Vanguard, Friday, January 21, 2005, an abuse of the immunity would (and does) bring untold hardship to complaint and justice administration.  

But as we shall see presently, there are some complexities in the criminal justice system that can constitute a cog in the wheel of the law, and of course ridicule our justice system should immunity be expunged. Black’s Law Dictionary (fifth edition) simply defines immunity to mean, inter alia, "Freedom from duty or penalty. But the provisions of section 308(1) of the 1999 Constitution, whose full text would not be rendered for lack of space, insulates such public officeholder from civil or criminal proceedings being instituted against him, or being arrested or imprisoned or compelled to appear in court. Section 308(2) also protects the public officeholder in his official capacity only in civil matters in which he is a nominal part. The immunity by virtue of section 308(3) is enjoyed by the President and Vice-President, Governors and Deputy-Governors of the States during their period of office. And by the proviso to section 308(1), account shall not be taken of his period of office in ascertaining the expiration of period of limitation.

In explaining the nature and implication of the immunity clause, the Supreme Court, per Iguh, JSC, in TINUBU Vs. I.M.B. SECURITIES PLC [2001] 16 NWLR (pt 740) 670 at 695 held that:

 "The immunity granted to the incumbent of the relevant office under Section 308(1)(a) of the Constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal, in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds such office. No question of waiver of the relevant immunity by the incumbent of the offices concerned or, indeed, by the courts may therefore arise."

Similarly, it has been held that one to whom the immunity applies cannot pursue an appeal that lies against him. According to the Court of Appeal in INDUSTRIAL AND COMMERCIAL SERVICES (NIG.) LTD & ANOR Vs. SOLCOOR INCORPORATED & ANOR [2003] 8 NWLR (pt 822) 223 at 234, "if a plaintiff to whom section 308 did not directly apply could initiate or continue proceedings against a person to whom section 308 applies, the later cannot pursue an appeal against any decision of the court of trial, the reason being that to allow that person to pursue an appeal is akin to a continuation of the proceeding before the lower court."

Consequently, such an appeal would be declared incompetent and as such liable to be struck out.

Having seen the provisions of section 308 and its implications, it is germane to examine the complexities or better put, the problems inherent in removing the immunity clause from the Constitution. As we may know it, apologists of the immunity all point to its use by those to whom it applies as a cover to commit criminal acts (especially corrupt offences), knowing that they are ‘immuned’ from criminal prosecution. This being the case, the probable question that arises now is: who is in charge of criminal prosecution?

A crime, we know, is an offence against the state. Accordingly, the state institutes criminal proceedings through the office of the Attorney General of the Federation or State, depending on if it is a federal or state offence. Sections 150 and 195 establish the offices of Attorney General of the Federation and State respectively. According to these sections, the Attorney General doubles as the Chief Law Officer and a Minister or Commissioner of the Federation or State as the case may be. Pats-Acholonu, JCA (as he then was), in GUARDIAN NEWSPAPERS LTD Vs. AG. FEDERATION [1995] 5 NWLR (pt 398) 703 at 730 in highlighting the function of the Attorney General, stated succinctly that:

"Both at common law and by virtue of our constitution, the ... Attorney General represents the State in all actions against the State. He can do this in person or through the other law officers of the State below him."

From the forgoing, we can see the enormous powers of the Attorney General. These are further provided in section 174 (for federal) and section 211(1) of the Constitution (for the state). According to section 211, "the Attorney General of a State shall have power:

(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of offence created by or under a law of the House of Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person."

Two main powers of Attorney General are identifiable. One is the power to institute, take over or continue any criminal proceedings. The other is the power to discontinue any criminal proceedings at any stage before judgment. We take them, seriatim.

On the power to institute a criminal proceeding as granted by law (for example section 72 of the Criminal Procedure Law of Lagos State, Vol. 11, 1994), there is every likelihood that in the absence of immunity, the Attorney General may feign ignorance of the offence of the boss, the President or Governor or their deputies. The simplest reason is that the Attorney General is either appointed by the President (pursuant to section 147 and 150) or Governor (pursuant to section 192 and 195 of the Constitution) and as such holds office at his pleasure. The other is the undue influence the President or Governor may wield on him.

Perhaps the more powerful and, probably, the more questionable power of the Attorney General is that mentioned in sections 174 (1)(c) and 211 (1)(c): the power to discontinue a case otherwise known as nolle prosequi. Section 73(1) of Criminal Procedure Law, Laws of Lagos State, 1994 provides that:

"In any criminal proceedings for an offence against a law of the State and at any stage thereof before judgment the Attorney General of Lagos State may enter a  nolle prosequi, either by stating in court or informing the court in writing that the State intends that the proceeding shall be at once discharged in respect of the charge or information for which the nolle prosequi is entered."

The major insurmountable problem in the power of nolle prosequi is that section 174(3), which is in pari material with section 211(3), both of the Constitution, provides that "in exercising his powers under this section, the Attorney General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent the abuse of legal process." Of course there is the problem of determining what may or may not amount to "public interest" and "interest of justice."

The Attorney General therefore has unfettered powers in deciding what constitutes public interest. It has been held in THE STATE Vs. ILORI & 2 ORS (1983) 1 SCNLR 94; (1983) 2 SC 155 that his powers in regard to the above discussed is "subject only to ultimate control by public opinion." Implicit in this is that the Attorney General has the sole responsibility of deciding what amounts to public interest. Consequently, it is submitted that the test is rather subjective than objective. This apart, there is a high degree of likelihood of abuse of the legal process. And there has been recorded cases of such abuse, one of which has been reported by Professor Peter Oluyode in hisConstitutional Law in Nigeria, and need not derail us here.

It can be gleaned from the foregoing that removing the immunity clause from the Constitution would be disastrous and in addition, make the judicial process look preposterous, given the role of the Attorney General (who is appointed by the officeholder) in the prosecution of a criminal action. It is suggested instead that efforts should rather be made in urging the legislature to wield its axe of impeachment against a defaulting officeholder. Though the processes of impeachment provided in sections 143 and 188 of the Constitution are rigorous, the strain it would cause the officeholder would serve as adequate caution.

This writer reiterates what he wrote in his "Need for Retention of Immunity Clause in the Constitution," published in Daily Independent of February 24, 2005 at page B11, that the removal of immunity would rather bring distraction to the officeholder since it is most likely to be used by his detractors or political opponents to score cheap political point. Consequent upon this is that the officeholder may start to develop a more sophisticated means of siphoning government fund and try to cleverly close up loopholes.

In all, immunity should not be tampered with. It is a policy legislation meant to remove distraction from officeholder, which is not even absolute. The beauty there, however, is that section 308(3) provides that it applies only during the period of office of the officeholder.  

Consequently, time limitation for the commencement of criminal proceedings shall not be taken into view of his period in office, so that he can still answer for his crimes or civil wrongs after he shall have vacated his position.

Anagbogu is of the Faculty of Law, Nnamdi Azikiwe University, Awka, Anambra State