Executive immunity and good government (3)

IN the previous publication, the extent of the protection granted by the executive immunity, as presented in section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), (subsequently referred to as the CFRN) was examined. It was established that the executive immunity is a shield to the chief executives, both at the state and federal levels, and that, by law, it cannot be waived by the immune-executive. It was also established that the executive immunity terminates at the expiration of tenure of the immune executive in office, hence the immune executive can be sued after his or her tenure in office. Furthermore,executive immunity is not a bar to criminal investigation, as long as the immune-executive is not interrogated, arrested or imprisoned. Finally, this immunity does not extend to acts done outside Nigeria and it does not protect official acts done in Nigeria, where the chief executive is a nominal party.

The final limitation to executive immunity is that it does not protect the immune executive from election petition matters. I will discuss this hereunder, and thereafter discuss arguments for and against executive immunity, drawing inferences from its application in Nigeria, over the years.

 

Restrictions to executive immunity

5. Election Petition: Section 308(1)(a) of the CFRN provides expressly that “no criminal or civil proceedings shall be instituted or continued against a person to whom this section applies during his tenure of office.” On the contrary, election petition is neither deemed at law to be a civil nor a criminal proceeding. Rather it is deemed sui generis (in a class of its own or in a special class). For this reason, it constitutes a natural exception to section 308(1)(a). Election petition only considers the question of validity of election results, to determine if the immune executive qualified in the first place for such protection. It does not further consider questions of criminal culpability or civil liabilities.

In Obi v Chief Samuel Mbakwe, the Court held that “election petitions are special proceedings completely divorced and separated from civil proceedings within the context of … the Constitution”. Also, in Alliance for Democracy v Peter Ayodele Fayose, where the governor elect challenged the jurisdiction of the House of Assembly Tribunal to entertain an election petition against him because of executive immunity, the Court of Appeal held that:“in an election petition, where the status of the governor is being challenged as in this, the said immunity is also questioned. He has no immunity against being sued and consequently he cannot be immune from being subpoenaed”

 

Schools of thoughts on the retention of the executive immunity

Several scholars have tested the utility of the executive immunity over the years. Some of these scholars have advocated for its retention, based on published reasons, most of which are political. Some of the reasons given for the retention of the executive immunity are:

1. Governance: In Abacha v FRN, the Supreme Court noted that the purpose of the immunity clause is to allow the incumbent free hand to operate free from harassment. This is the strongest point of the protagonists of this school, which is that the executive immunity prevents anarchy and leads to enhanced peaceful environment for governance. This is because it reduces distractions from governance especially by opposing political rivals seeking to ensure that the incumbent government fails.
2. Preserving the dignity of the office of the immune-executive: The clause helps to starve off possible indignities that may be thrown at the immune executives, since they hold the office in trust for the people. This is because it reduces the incidence of indictment of chief executives, which may have a rippled effect of diminishing the respect accorded to the office. The protagonists of this school further argued that few instances showcasing the abuse of the immunity clause is not sufficient ground to strip other public officials of the immunity granted them. They further stated that the immunity clause also prevents overzealous chief executives from using the instrumentality of the court to replace their deputies, when there is a fall-out.
3. Guarantee to the tenure of office of the immune executives: per executive immunity from civil and/or criminal proceedings, there is the likelihood that no vacuum will be created in their respective offices because oflitigation. This has therefore helped to prevent frequent bye-elections which may have been needed, if the office of the chief executives become vacant from time to time, if the immunity clause is removed.

Conversely, there is the school of thought that is adversely disposed to the immunity clause. The scholars have relayed their views from the ethical standpoint. Some of their conclusions are conveyed below:

1. The provision of section 308 is antithetical to the doctrine of equality before the law. According to George Orwell, all animals are equal, but some are more equal than the others. This is the principle the executive immunity embraces, and this makes the immune executives superior to other citizens of the country. The executive immunity therefore imposes discrimination and unaccountability on Nigerians.
2. The immune executives have used the liberty granted under the executive immunity as the bane for injustice and corruption. For example, Godswill Akpabio, a former Governor of Akwa Ibom State, former minister of Niger Delta Affairs and a current serving senator, was under investigation for alleged embezzlement of N108 billion during his tenure as governor of Akwa Ibom State from 2007-2015. He has not been prosecuted and his case is still pending before the EFCC. Also, Rotimi Amaechi, the former Governor of Rivers State and the former Minister of Transportation, was indicted by the Justice George Omeregi-led Rivers State Judicial Commission of Inquiry set up to investigate the sale of state assets.

He and others were accused of allegedly misappropriating N97 billion through the sale of the state valued assets. He has not been prosecuted. Abdullahi Ganduje, a former governor of Kano State, was caught on camera collecting bribes of large chunks of American dollars from an undisclosed associate, and rolling them into his babariga in the last quarter of 2018. He has not been prosecuted by the EFCC. According to the ‘Grand Corruption in Nigeria: working paper 12’, published by ACE global integrity in 2021, Nigeria was described as having the “unenviable position of being perceived as one of the most corrupt countries in the world.” In its report of the 60 grand corruption cases complied within 2018 and 2019, governors ranked first as corruption perpetrators, with 24 unfinished cases broken down as follows: 12 cases of embezzlement/misappropriation/diversion/disappearance of public funds, 5 cases of corruption, 6 cases of money laundering and 1 case of fraud including fuel subsidy fraud.

3. Most of the heat of the fraudulent actions done while the chief executives are in office, usually subside by the time the chief executive and their deputies vacate office, or worse still, some die. This forecloses the possibility of prosecution as held in Alamieyeseigha v Yeiwa. Hence, although there are many allegations of corruption and fraud during the tenure of these chief executives, they are rare prosecuted after their tenure in office. Also, the pains and psychological trauma suffered by an aggrieved party would increase by the day, since such party has to wait until the expiration of tenure of the immune executive.

I will pause the discussion at this junction to allow the readers reflect on if the utility of the executive immunity as practiced in Nigeria, can be said to overwhelm the harm it has done to the nation’s economy and international reputation in the recent years.

AARE AFE BABALOLA, OFR, CON, SAN, LL.D (Lond.)