Jul 15, 2016

Dunmade Onibokun - Scope of Immunity Clause on Nigerian Public Officers

President Muhammadu Buhari

By virtue of the Nigerian 1999 Constitution, certain public officers are granted immunity. This post will be analyzing the relevant provision of the constitution providing for immunity and taking a look at the extent of the cover provided by the immunity clause. 

The 8th edition of the Black’s Law dictionary defines immunity as ‘any exemption from a duty, liability or service of process; especially such exemption granted to a public official. L.B Curzon’s, A Dictionary of Law, further defines immunity as a “freedom or exemption from some obligation or penalty. 

The relevant provision of the constitution which provides for immunity for public officers is Section 308, of the 1999 Constitution, Laws of the Federal Republic of Nigeria (2004). The law provides that -
308. (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.
From the provisions of Subsection 3 of the above statute, it is clear that the only persons granted immunity in the Constitution include; the President, Vice-President, Governor and Deputy Governor. 

Also from Sub -section 1 of the law, it also states clearly that the above mentioned people cannot be arrested, charged to court and no court has the power to compel their appearance during the period in which they hold this office. Except, it’s a civil proceedings, in which the public official is a party due to his official capacity. In essence, neither the Police, EFCC nor any other security agency in the country can arrest any of these public officials.

This provision has caused a lot of debate, with some calling for the removal of the shield upon which these public officials are covered by virtue of a Constitutional review deleting the immunity clause. A strong reason they say is because no one should be above the law.  It should however be noted that the reason behind imputing the immunity clause in the first place was the protection of public interest wherein the interest of the nation in the preservation of its highest offices outweigh the inconvenience to the individual for the temporary postponement of prosecution and to save such public office holder from harassment while the person is in office. 

What however is the scope of the immunity?
Questions have arisen from different quarters as to whether the immunity cause protects the public officer from investigation? It should be noted that this is not the case. 

In the case of Fawehinmi V. Inspector General of Police and 2 Ors (2002) 7 NWLR (Pt. 767) 606, the question was whether the immunity clause protects a Governor (against whom allegations of criminal conduct was made) from investigation by the police. The Supreme Court held in the case that neither the law nor the Constitution protects any person from being investigated by the Police. The outcome of the investigation however would not crystalize into a criminal prosecution while the public officer still holds office. Uwaifo JSC further stated “that a person protected under Section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police is, in my view beyond dispute.” The essence of the above judicial pronouncements is that though a public office holder covered by Section 308 of the Constitution may be investigated by government security agencies, they may not be prosecuted until after the expiration of their official tenure.

It is also worthy of note that by virtue of the Diplomatic Immunities And Privileges Act, every foreign envoy and every foreign consular officer, the members of the families of those persons, the members of their official or domestic staff, and the members of the families of their official staff, are  accorded immunity from suit and legal process in Nigeria.


Dunmade Onibokun Esq.
Principal Partner
Adedunmade Onibokun & Co.