The Position Of Law On
Immunity For Public Officers And My Opinion
Section
308 of the Constitution of the Federal Republic of Nigeria, 1999, as amended,
makes provisions for immunity. This section provides that no civil or criminal
proceedings shall be brought against persons holding the offices of President, Vice-President,
Governor or Deputy Governor during the tenure of their offices, except in civil
cases in which they are nominal parties. The section expressly provides that no
court process shall be issued requiring or compelling the attendance of the
listed officers. Also, the named officers, for as long as they occupy the named
offices, shall not be arrested or imprisoned for any criminal offence.
In a
supreme Court decision in the case of Abacha
v. F.R.N (2014) 6 NWLR (Pt. 1402) 43, the apex court interpreted the
immunity section and held that “the
provision of Section 308 of the 1999 Constitution is a policy legislation
designed to confer immunity from civil suits or criminal process” on the named
public officers.
The
immunity provision in the Constitution is better called impunity provision. The section promotes impunity on the part of
the named public officers who are confident that no matter the wrong they may have
committed, they would not be required to bear responsibility for their actions
or inaction. Even though the Supreme Court has held in Fawehinmi v. Inspector General of Police (2002) 7 NWLR (Pt. 767)
606 (Suit No. 201/2000) that section 308 does not preclude investigation of the
named officers while in office (with a view to prosecuting them immediately
they leave office), the NPF and the anti-graft agencies have not been
prosecuting these public officers after their tenure expires.
I
advocate deletion of section 308 from the Constitution so that any public
officer, no matter how highly placed, may be arrested and prosecuted for suspected
criminal offences, including allegations of corrupt practices. If
the APC were truly a party committed to change, it ought to use its majority
weight in the National Assembly to push through the deletion of section 308
from the Constitution.
Section 308 and the Freezing
of Governor Fayose’s Bank Account
Until
section 308 is deleted from the Constitution, the alleged freezing of the
account of Governor Fayose’s personal bank account, for example, is nothing but
discriminatory application of impunity and unconstitutional misuse of power to
silence the opposition ruling political party. It should be noted that the impunity
being displayed to the major opposition ruling political party, could also be
extended to sections of the labour movement and human rights organizations that
are critical of the APC regime, whenever they decide to take on the regime in
fighting for the welfare of ordinary people.
In regard to the
alleged freezing of Governor Fayose’s account by the EFCC, it should be made
clear that under the EFCC Act, the power to confiscate and declare assets of
defendants forfeited is vested only in the courts, not in the EFCC. Sections 19 to 34 of the EFCC Act
empower the court to make an order of forfeiture, seizure and/or confiscation
of all assets and properties, real or personal that may have been acquired,
obtained and/or derived, directly or indirectly, disclosed or undisclosed in
Any Assets Declaration Form. The EFCC is only
empowered to seize defendants’ assets in appropriate cases and then apply to court for interim orders, pending final conviction
in deserving cases. In fact, as far as freezing of accounts is concerned, the
EFCC is mandated, in appropriate cases, to apply to the Federal High Court for
an ex parte order. The EFCC lacks the
power to act without a court order. In the context of a President, Vice
president, Governor or Deputy Governor, section 308 does not allow any court
process to be issued against the named public officers. Therefore, the freezing
of the account of Governor Fayose is patently unconstitutional and illegal. Unconstitutional
and illegal acts must be condemned, regardless of the character of the victim.
Such unconstitutional and illegal acts must not be allowed to be set as
precedents because it could allow a full blown totalitarianism.
In a judgment delivered on 23/6/16 by Hon. Justice
Gabriel Kolawole of the Federal High Court, Abuja Judicial Division, in a case
involving Senator Abdullazeez Nyako and EFCC, the Court held that the decision
of the EFCC to deploy its administrative powers detaining the Applicant for
three days without a court order and freezing his personal bank account since
July 14, 2016 without obtaining a court order to that effect was a violation of
the EFCC Act. The Court held further that the law makers never intended that
any agency of government would combine the powers of an accuser and a judge
(See <http://thenationonlineng.net/judge-faults-efccs-arrest-detention-procedure/
>,
accessed on 24/6/16).
In the case of
an incumbent President, Vice President, Governor and Deputy Governor, section
308 provides that no civil or criminal process can issue against them. By the
provision of section 308 of the Constitution, the EFCC cannot even apply to the
court for an ex-parte order to freeze the account or seize the property of the
public officers named under section 308. The Government should demonstrate its
enthusiasm to fight corruption by first deleting section 308 and then take on
all public officers, including former governors, ministers, commissioners, etc.
While it is
desirable to prevent the looting of public treasury by arresting, detaining and
recovering loots, the first imperative act is to remove section 308 of the
Constitution. Discriminatory violation of section 308 is nothing but impunity,
which is more dangerous to the psyche, survival and freedom of the society than
looting of treasury. Under Mallam Nuhu Ribadu, the EFCC announced that almost
all state Governors had looted the treasury of their individual states. Many of
them are walking about as free citizens, even after they no longer enjoy
constitutional immunity.
ON LIFE PENSION FOR PRESIDING OFFICERS OF THE NATIONAL ASSEMBLY
It
is scandalous, provocative, callous and insensitive that members of the ruling
class, including the national legislators perceive public office as an
opportunity to promote their own selfish interests whilst the welfare of
ordinary people is being criminally neglected. It is also notable that such a
call is being made under a National Assembly dominated by members of the “change”
party.
For
any segment of the National Assembly to be entitled to life pension, a law
ought to have first been enacted entitling ordinary citizens, regardless of the
sector in which they worked in their youthful age, to life pension.
As
a matter of fact, sections 84(5), 124(5)
and 291(3) of the Constitution entitle any persons who had occupied the
positions of President, Vice President, Governors, Deputy Governors and top
judicial officers guaranteed life pension, at a rate equivalent to the annual
salary of the incumbent President, Vice-President, Governor or Deputy Governor,
respectively. The top judicial officers are entitled to pension at the rate of
their last annual salary before they retired. What is good for Mr. President,
Governors and top judicial officers should be good enough for ordinary
citizens.
The
legislature ought to amend the pension law such that there is a responsibility
for Governments (Federal and State) to operate a mandatory pension system that entitles
all citizens to life pension. This is particularly important in the context of
a trend in which opportunities for guaranteed employment (for a long time until
retirement) appear to be fast disappearing. What appears more certain today is
a life dominated by unemployment, short term employment, casual and contract
employments. The Nigerian pension law should be located within the context of Section
16(2)(d), which guarantees pension at a time when the individual is too weak to
work, or becomes disabled for whatever reason or cannot find job even when he
is willing and able to work at old age.
Unless
the lawmakers first enact a law to entitle citizens to pension for life, ordinary
Nigerians should resist the persistent attempts by the lawmakers to continue to
dispossess the larger society for their own selfish ends.
Femi Aborisade,
Esq.
21st
June 2016.
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