Immunity Clause: When Can The President Appear In Court

immunity clause

Immunity Clause: When Can The President Appear In Court

by Takim Etta Ndifon

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Introduction

The powers vested in the office of the president are unfathered, often unchecked by any external authority. This authority, however, is not absolute, as it is tethered by the intricate web of checks and balances within a government. What amplifies the president’s influence is the shield of immunity that protects them from prosecution or civil liabilities while in office. While this immunity is a foundational rule, exceptions exist, shedding light on the nuanced interplay between presidential power and legal accountability.

This article delves into the concept of the Immunity Clause under Nigerian law and its implications. It meticulously examines the exceptions that punctuate this seemingly inviolable shield, unraveling scenarios where the president can be held accountable despite their protected status. Through comprehensive legal analysis and case studies, this article navigates the complexities surrounding presidential immunity, providing clear answers to the pressing question: Can the president Appear in court to answer to any crime or wrong during their tenure in ofice? In doing so, it sheds light on the delicate balance between presidential prerogatives and the imperative of justice within the Nigerian legal framework.

Understanding the  Immunity Clause

Presidential immunity is the legal protection or immunity from prosecution granted to a country’s president, preventing them from certain legal proceedings while in office.[1]  These powers are provided in the immunity clause of the Nigerian Constitution[2]  according to F. N. Ukoh, the Immunity Clause has been considered an outrageous and controversial clause, this is because the provision left so many questions unanswered.[3]

According to Susan FabamiseIt is widely held in Nigeria that if the government is serious about combating corruption, no official should be immune from punishment for corrupt actions.[4]  for Akinwumi, the immunity clause is not new in Nigerian history, but it was explicitly codified in Section 308 of the 1999 Constitution.[5]

As reported by Tribune Online in 2021 the Christian Association  (CAN) has asked the National Assembly to expunge the immunity clause from the constitution. this is because holders of the offices with immunity usually abuse the powers afforded by the constitution itself, most recently was the outcry after the shooting at Lekki toll gate and nothing has been done to date to those who killed innocent protesters.

The 1999 Constitution in Section 308 states that no civil or criminal proceedings can be initiated or continued against individuals holding certain offices, such as President, Vice-President, Governor, or Deputy Governor, during their time in office. These individuals cannot be arrested, imprisoned, or compelled to appear in court during their term. However, this immunity does not apply to legal cases related to their official duties or when they are only a nominal party in civil or criminal proceedings. The period of their office does not count toward the expiration of the limitation period for legal actions.

the Nigerian Courts have in Some Cases given important legal decisions that have shaped the concept of the immunity clause and the powers of the President and other office holders afforded under section 308 of the Constitution.

In ALAMIEYESEIGHA V. FRN  The court held that the appellant, a State Governor, is protected by constitutional immunity under section 308 of the 1999 Constitution. This immunity shields him from criminal proceedings, but only while he holds the office of State Governor. It emphasized that immunity is inherent to the office and automatically ceases when the person no longer occupies the position. Even the governor cannot waive this immunity, and it remains in effect solely during the period of incumbency.

also The Supreme Court in EGBE V. ADEFARASIN & ANOR.   it was held that this clause does tend to include judges not even those at the superior courts except in the discharge of their duties.

 In the case ALI V. ALBISHIR   held section 308(1) and (2) of the 1999 Constitution was intended to protect the President, Vice-President, Governor, or Deputy Governor from unnecessary legal actions, especially those involving personal or criminal matters. The amendment aimed to provide a shield against frivolous or vexatious litigation for these officeholders.
In the case of APC v. PDP & Others (2015), the Supreme Court held that due to the immunity granted to elected public officers under section 308 of the constitution, an incumbent Governor cannot be arraigned before a court of law or the Code of Conduct Tribunal. This ruling affirmed the immunity from legal prosecution provided to governors under the specified section of the constitution.

 

When Can the President Appear in Court

As a general rule, the president is afforded immunity under the Nigerian Constitution and cannot be sued or charged in any court of law; however, there are a few exceptions to this rule.

1. When the President is sued in an Official Capacity As President:

An action that can be brought against the president of Nigeria while acting in his official capacity as president and father of the nation is not covered in the immunity clause provision. this is evident in the case of  Oshugbai Eleko v FGN what is remarkable in this case and other cases against the president is that the president acts under the umbrella of the Federal government of Nigeria by virtue of his office. A person whose land has been compulsorily acquired by the government outside the ambits of the law the person can bring an action against the state.  in the case of Ojukwu v. Government of Lagos State.  the court held that the government cannot acquire the property of the citizen except the land in question will be used for public use.

2. When the President Initiates a Legal Proceeding

The Immunity Clause provision does not preclude the president from bringing legal action against anyone, in pursuit of his legal rights and claims. this means the president can appear in court for an action he institutes in his personal capacity.

In the case of Global Excellence Comm. Ltd. v. Duke, the Supreme Court ruled on the interpretation of section 308 of the 1999 Constitution. This section grants absolute immunity to certain individuals but does not restrict them from pursuing legal actions in their personal capacities for redress during their tenure of office. In other words, the court held that the immunity provided by section 308 does not prevent the individuals mentioned therein from taking legal actions in their personal capacity while they are in office.

3. Expiration of Tenure of Office 

when the tenure of the president elapses, the president can face all civil and criminal liability, because at this point the veil of immunity has been lifted. In the case of FABUNMI V. IGP ABUJA & ANOR , the court held that when the immunity of individuals who are protected from prosecution for offenses committed while in office expires, it is the statutory duty of law enforcement agents to arrest alleged offenders and investigate complaints for possible prosecution. The court emphasized that any person who feels aggrieved has the right to approach the court for redress, highlighting the principle that immunity does not absolve individuals from legal accountability once their term in office concludes.

4. During Election Matters

The immunity clause does not preclude the president and other office holders mentioned in section 308 from appearing in court, either in person or through a representative, when it concerns election matters, it is immaterial if they have been sworn into office already. In the case of Amaechi v. Independent National Electoral Commission & Others (2008), the Supreme Court clarified that section 308 of the 1999 Constitution does not shield a governor from legal proceedings related to his election, even if he has been declared duly elected or returned as governor. This means that a governor can be legally challenged in matters directly connected to his election despite the immunity clause provided by the Constitution.

5. President As Norminal Party

Where the decision of the court would not directly affect the president because he is a nominal party to a suit, his name would be left in the suit. This is reaffirmed in the provisions of section 308 of the 1999 constitution.

6. Impeachment of the President

When the President is impeached in accordance with the provisions of Section 143 of the 1999 Constitution or leaves office by resignation pursuant to Section 306 of the 1999 Constitution, the veil of immunity is immediately lifted. At this point, he can be held responsible for all civil and criminal liabilities.

Conclusion

In navigating the intricate terrain of presidential immunity in Nigeria, this article has explored the nuanced relationship between legal protections, political power, and accountability. The concept of immunity, enshrined in Section 308 of the 1999 Constitution, acts as a formidable shield, safeguarding the president and other specified officeholders from legal prosecution during their term. However, this immunity is not without exceptions, revealing the delicate balance between executive privilege and legal responsibility.

Through meticulous examination of legal precedents and scholarly insights, it becomes apparent that the immunity clause is not an absolute fortress. Instances exist where the president can be held accountable despite the protective veil. Notably, when legal actions pertain to official duties, election matters, or when the president initiates legal proceedings, the immunity clause does not serve as an insurmountable barrier.

Moreover, the principle of immunity does not absolve officeholders from the repercussions of their actions once their tenure concludes. The expiration of their term signals the lifting of the immunity veil, allowing for civil and criminal liabilities to be pursued. This ensures that no one, regardless of their office, is above the law indefinitely.

The calls for reform, echoed by legal scholars and societal voices, highlight the need for a careful reevaluation of the immunity clause. As demonstrated by the Christian Association’s plea to the National Assembly, the abuse of powers under the shield of immunity raises pertinent questions about its appropriateness in the modern context. Striking the right balance between protecting public officials and upholding justice remains a challenge that the legal system must address.

In conclusion, while the immunity clause grants crucial protection to the president and other specified officeholders, the exceptions carved within its provisions underscore the fundamental principle that justice and accountability should remain cornerstones of any democratic society. As Nigeria continues to evolve, so too must its legal frameworks, ensuring that the delicate equilibrium between presidential authority and legal scrutiny serves the best interests of the nation and its citizens.

 

citations

  1. Long, J.L., 1995. How to Sue the President: A Proposal for Legislation Establishing the Extent of Presidential Immunity. Val. UL Rev.30, p.283.
  2. G. N. Okeke, Appraisal of Fundamental Necsity of the Immunity Clause in the political Governance of Nigeria(2015) Journal of Africa, Univerity of London 99-201
  3. F. N. Ukoh, ‘Immunity Clause under the 1999 Constitution of Nigeria: A Dire Need for Reform’ (2020) Journal of Politics and Law 14(2):47

  4. Susan Fabamise CONSTITUTIONAL IMMUNITY CLAUSE AND THE FIGHT AGAINST CORRUPTION IN NIGERIA
  5. & ORS (2006) LPELR-CA/L/01/2006
  6. (1985) LPELR-SC.77/1984
  7. (2007) NWLR (Pt. 1059) 22 at 44
  8. (2011) LPELR-CA/I/164/2003
  9. 2008) ALL FWLR (Pt.415) 1681

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