“Immunity” has been defined by the Black’s Law Dictionary as:

“Exemption, as from serving in an office, or performing duties which the law generally requires other citizens to perform e.g exemption from paying taxes. Freedom or exemption from penalty, burden or duty.”

Section 308 of 1999 Constitution of the Federal Republic of Nigeria (as amended) provides as follows:

308 (1) Notwithstanding anything to the contrary in this institution but subject to subsection (2) of this section –

  • No civil or criminal proceedings shall be instituted or continued against a person to whom this section applied during his period of office;
  • A person to whom this section applies shall not be arrested or imprisoned during that period either on pursuance of the process of any court or otherwise; and
  • No process shall 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.

The above constitutional provision has been summarized by the former Minister of Information, Prince Tony Momoh, as follows:

  1. No civil or criminal proceeding can be instituted against any member of the above class during his/her period in office.
  2. If such action had been instituted (before he/she assumed office), it will stop or cease for the duration of that period of office.
  3. No member of the class can be arrested or imprisoned by any court order during his/her period of office.
  4. No court can order his/her appearance to answer to any matter during the said period in office.
  5. If such application is made to compel the appearance of a member of the class, such application shall be denied.
  6. The period in office shall not adversely affect any legal matter that would, otherwise, be time barred. In other words, the period of office shall not make the case statute barred.

The intention of the lawmakers who drafted this clause was to protect the members of this class from distracting legal proceedings during their time in office so they would be able to concentrate on their official duties.

However, there has been much debate on the justification of this clause. Because of the full immunity from any legal proceedings, whether civil or criminal, many believe this clause to foster corruption and have called for its removal. They are of the opinion that, while holding office, the members of the class protected by the immunity clause can “do and undo” as they see fit and not be held accountable.

While it is accepted that the original intention of the drafters of the clause was to protect the class from distracting litigation while performing their legitimate and constitutional mandate and duties, one then must consider how easily this clause could be abused by those protected under it. Because of its absolute nature, can the members of the class be held responsible for blatant acts such as emptying of the government’s treasury? What happens if a member of the class publicly commits murder?

The Supreme Court has interpreted the immunity clause to be absolute and not permitting any exceptions. No civil or criminal proceedings may be brought against any member of the class protected by the clause during his/her period in office. So does this mean there are no legal remedies available against illegal acts of those protected by the clause?

There are currently many anti-corruption laws in Nigeria, such as the Economic and Financial Crimes Commission Act (EFCC Act). This Act was enacted in apparent compliance with the directive in Section 15(5) of the 1999 Constitution that “the State shall abolish all corrupt practices and abuse of power.” The Economic and Financial Crimes Commission is endowed with wide powers for the enforcement of the provisions of various ant-corruption laws and regulations relating to economic and financial crimes including the Criminal Code and the Penal Code. The power of the Commission to investigate any crime is contained in Section 6 of the EFCC Act. The Act also confers on the Commission the power to arrest and prosecute offenders. Can the Commission, in exercise of their powers, arrest and prosecute a member of the immunity class?

Under its supremacy clause, the Constitution of the Federal Republic of Nigeria supersedes any other law that contradicts its provisions. Thus, the EFCC Act, which is an Act of the National Assembly, is superceded by the Constitutional provisions under Section 308(1)(a). The powers of arrest and prosecution under the EFCC Act are, therefore, inapplicable to those protected by the Immunity Clause. The Commission can commence investigations against a member of the immunity class while the member is still in office, but cannot contravene the provisions of the immunity clause by compelling the member’s appearance to answer any subject matter of the investigation.

From the above, the current level of corruption being witnessed in the government and current EFCC investigations of some State Governors and their Deputies, it is easy to wonder if the immunity clause has only served as an incentive for corrupt practices since every member of the class protected by the clause is aware of the fact that while in office, he/she cannot be summoned, arrested or imprisoned for any corrupt practice. Thus, the outcry and recommendations that the immunity clause be removed.

Do you have any recommendations? We look forward to hearing your opinions on the Immunity Clause.