Facilitation of belated prosecution and possible destruction of evidence by the immunity clause

Sub-sections 308(1) and (3) of the 1999 Constitution presuppose that the president, vice-president, governors and deputy governors enjoy immunity from any proceedings, be they civil or criminal, during their term of office. The immunity granted is so peculiar that, where a suit was already pending against them prior to their election into the specified office, the suit will automatically go into abeyance. They are also immune from arrest or imprisonment, as no court process requiring or compelling their appearance can be issued against them during that period. Interestingly however, proceedings may be instituted or continued against them after their term of office, even for offences committed while they were in office. Such proceedings may however be too late, since time is usually of the essence in judicial proceedings, especially civil proceedings which are subject and prone to laws of limitation. Criminal proceedings are not usually subject to limitation laws except in limited circumstances. Proceedings instituted after the expiry of the limitation period allowed under the relevant laws of limitation shall be dismissed on the application of the person against whom they were commenced. They may also be dismissed by the court suo motu [of its own accord], since the court would have no jurisdiction to entertain the matter. In the case of NPA v Lotus Plastic Ltd and Another it was held that “an action commenced after the expiration of the period within which an action must be brought as stipulated in the Statute of Limitation is not maintainable … In short when the Statute of Limitation in question prescribes a period within which an action must be brought, legal proceedings cannot be properly or validly be instituted after the expiration of the prescribed period”.Footnote ⁸

In a situation like this, an action may no longer be maintainable against those persons entitled to immunity under sub-section (3) after they have vacated their office. But the drafters of the 1999 Constitution tactically took care of this undesirable possibility by inserting a proviso under sub-section (1), providing that, in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom the section applies, no account shall be taken of his period of office. In view of this proviso, the issue of the immunity clause does not pose a problem vis à vis the limitation period.

However, belated prosecution may constitute a very serious threat to the delivery of justice because delayed prosecution will bring about delayed justice and, as the saying goes, justice delayed is justice denied. In fact “delayed justice”, says Walter Savage Landor, “is injustice”.Footnote ⁹ There is no doubt that the quick dispensation of justice is one of the indices used in determining how civilized a society is. The starting point towards understanding how a belated or delayed prosecution may lead to a denial of justice is to look at the enormous burden of proof placed on the prosecution by Nigeria's criminal and evidence law. Cases before a judicial tribunal or court are decided on the basis of the evidence brought before the tribunal or court. A piece of evidence is something that tends to prove or disprove the existence of an alleged fact; this may include testimonies, documents or tangible objects.Footnote ¹⁰ The standard of proof required by evidence laws in criminal proceedings is proof beyond reasonable doubt. According to section 138(1) of the Evidence Act,Footnote ¹¹ “if a commission of crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt”. In the case of Amala v State, AO Ajuwunmi JSC held inter alia that “there is no question that the established principle in all criminal cases tried by any court within this jurisdiction is that the prosecution must establish the guilt of the accused beyond reasonable doubt upon the established evidence before the trial court”.Footnote ¹² Where there is insufficient evidence or conflicting evidence or no evidence at all in support of the alleged commission of an offence, the accused is bound to be acquitted and discharged, as the offence cannot be said to have been proved beyond reasonable doubt. As the success of any criminal proceedings depends entirely on the quality of evidence furnished before the trial court, evidence must be guarded and protected. However, belated prosecution gives room for depletion and depreciation of the probative and evidential values of otherwise valuable pieces of evidence. This may occur in a number of ways.

First, vital pieces of evidence may be irreversibly destroyed or lost within the period of immunity such that any subsequent trial after the period of immunity will amount to a mere ceremonial trial. Destruction of evidence may result from a natural cause or act of God. For example, fire may destroy an archive where material pieces of evidence are kept. However, that may be as a result of a deliberate act in a bid to forestall a subsequent trial: stores and offices harbouring vital documents may be set ablaze, so as to cover the footprints and trails of the criminal activities of those enjoying immunity. Similarly, fraudulent officers may be bribed to destroy or smuggle out important evidence in their custody during the immunity period.

Secondly, a credible prosecution witness may no longer be available by the time those protected by the immunity clause complete their term of office. A witness is a medium through which pieces of evidence are supplied to the court. Some witnesses, including prosecution witnesses, are so important that the entire trial revolves around their testimonies, such that without them the prosecution will be unable to prove their case. A prosecution witness or other key witness may die while a person alleged to have committed an offence is still protected by the immunity clause. Similarly, belated prosecution also exposes possible witnesses in high profile cases to great danger as they may be assassinated by those covered by the immunity so that any subsequent trial after their tenure will amount to nothing.

Thirdly, some crimes or wrongs are of the nature that visits to the crime scene should be conducted before the crime can be effectively prosecuted or tried. Through site visits, the trial judge visits the scene of the crime or wrong alleged to have been committed so as to see things for himself. This would ultimately help lead to a just determination of the matter. However, the status quo at the crime scene is likely to change within the period of immunity and this will adversely affect the chance of the plaintiffs or prosecution proving their case.

Finally, a witness with poor memory may forget the material facts of a case by the time relevant public officers complete their tenures. Immunity gives room for the blurring of memory.

Promotion of inequality before the law

The concept of equality before the law is one of the core values in any civilized society and as such an integral part of modern state theories. It is one of the tripartite pillars of the principle of the rule of law, hence, according to Appadorai, “the rule of law excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens”.Footnote ³⁶ The other two pillars are impartial judiciary and citizens' rights. Hence Dicey noted that, in England, every official from the prime minister down to a constable or a tax collector is under the same responsibility for every act done without legal justification as is any other citizen.Footnote ³⁷ In a democratic jurisdiction like Nigeria, equality before the law assumes greater gravity because it forms the bedrock on which the foundation of sustainable democratic government is laid. Hence, according to Professor Peter Oluyede, equality before the law is one of the attributes of true democracy.Footnote ³⁸

The principle of equality is a cardinal and a fundamental one for the operation of the rule of law and democracy. It presupposes in ordinary meaning that everyone is treated equally before the law. It is a well-respected doctrine that is well preserved all over the world, particularly in advanced democracies. It is further demonstrated in the legal maxim that justicia non negenda, non differenda which recognizes the fact that the law is blind in its application and is a no respecter of person, office, status or bias. This principle verily reinforces the impartiality and integrity of the law or the justice system in the event of a breach of law.

The origin of equality before the law can be traced to the natural law school,Footnote ³⁹ but its formal recognition dates back to the American Declaration of Independence which eloquently declared in its first paragraph that “we hold these truths to be self-evident that all men are created equal”.Footnote ⁴⁰ Since then, equality before the law has become one of the key principles of constitutional law, hence, according to Colm O'Cinneide, “[e]quality is often described as a core constitutional value.”Footnote ⁴¹ It is for this reason that equality before the law is embedded in the constitution of many countries. Article 1 of the 1958 Constitution of France provides that “France shall be an indivisible, secular, democratic and social republic. It shall ensure the equality of all citizens before the law”. By article 3(1) of the 1949 Constitution of the Federal Republic of Germany, “all humans are equal before the law”. By section 17(2)(a) of Nigeria's 1999 Constitution, “every citizen shall have equality of rights, obligations and opportunities before the law”. In the international arena, the concept of equality before the law is no less emphasized, hence article 7 of the Universal Declaration of Human Rights, 1948 declared that “all are equal before the law and are entitled without any discrimination to equal protection of the law”.

This discussion shows that it is beyond doubt that the concept of equality before the law is so essential that any deviation from it is generally frowned upon. It is in this connection that the immunity clause in the 1999 Constitution caught the authors' attention, since it appears to promote the culture of inequality before the law. In fact, there has been lingering controversy and debate as to whether the immunity clause entrenched inequality before the law into the Nigerian legal system. The question of interrelatedness between the immunity clause and inequality before the law however appears very tricky. This is borne out of the fact that the concept of equality before the law is shrouded in ambiguity and, as such, prone to misconception. The authors are not alone in the postulation that the concept of equality before the law is vague and ambiguous, since other legal commentators have expressed similar reservations. Accordingly, it has been stated that equality is a notoriously vague concept.Footnote ⁴² It was also argued that evidence for the notion of equality before the law is neither clear nor uncontentious. There remains room for doubt and argument.Footnote ⁴³Black's Law Dictionary amply demonstrated this ambiguity when it explained that “a number of distinct meanings are normally given to the provision that there should be equality before the law”.Footnote ⁴⁴ One of these meanings is that the concept of equality before the law denotes that “no-one is above the law.” It was in this sense that Lord Denning understood the concept of equality before the law when he noted that “be ye ever so high, the law is above you”.Footnote ⁴⁵ If equality before the law only means that no-one is above the law, then it is difficult to see how the immunity clause profanes the concept of equality before the law, since the immunity clause itself is not just part of the laws of land, but part and parcel of the grundnorm. The immunity clause of section 308 is not just part and parcel of the grundnorm, but is arguably superior to other sections of the constitution, as the constitution itself made other sections subject to it, by the usage of the term “notwithstanding anything to the contrary in this Constitution”.Footnote ⁴⁶

Beyond this meaning of the phrase equality before the law (which is rather too simplistic), the concept of equality before the law also means equal subjection of all to a common system of law, no matter its contents. In this connection the concept of equality before the law frowns upon any system of law that promotes inequality before the law or any practice that is authorized by a discriminatory law. This view was championed by AV Dicey who emphatically condemned the then French system where government activities were dealt with by a separate administrative court.Footnote ⁴⁷ Equal subjection of all to a common system of law indicates in a nutshell that the law has no favourite. The word “all” here is all-embracing, hence both the leaders and those being led should squarely face the consequence of a breach of the law in the same manner and without fear or favour.

Are the public officers protected by section 308 of the 1999 Constitution treated and subjected to a common system of law with other citizens while their term of office endures? It is not difficult to see that this question cannot be answered in the affirmative, since the immunity clause clogged the wheels of justice in favour of those protected by it. It has been argued that the immunity clause is an affront to the principle of equality before the law.Footnote ⁴⁸ According to Isa Ali Pantami, “‘[i]nequality before the law’ has replaced ‘equality before the law’; some high-placed Nigerians are above the law constitutionally as a result of an unjustifiable immunity clause.”Footnote ⁴⁹

The immunity clause promotes inequality before the law in various ways, as specified under section 308. First, no civil proceedings can be commenced or continued against the public officers protected under section 308. In Bola Tinubu v IMB Security Plc (Tinubu),Footnote ⁵⁰ the plaintiff company instituted civil proceedings on 26 November 1992 via a writ of summons at the High Court of Lagos State, in which it claimed against the first defendant the sum of 2.5 million naira, being the balance of an overdraft loan granted to the first defendant by the plaintiff company. It was not only held that an action could not be continued against the third defendant / appellant but that even an interlocutory appeal arising from the main proceedings at the High Court could not continue, since allowing the appeal to move forward would amount to an indirect way of continuing the suit at the High Court. Unfortunately, it was also held in the same appeal that the governor may sue anyone for redress for any personal wrongs done to him. That is to say that those who are protected by the immunity clause cannot be sued by anyone, whereas they are at liberty to sue anyone. Also in Dr Olusegun Agagu v Mr Akin Esanmore and Others the Supreme Court stated:

There is no doubt that this kind of situation runs contrary to the spirit of the concept of equality before the law because, if all are really equal before the law, then all should be treated alike under the law.

Secondly, an immunity clause shields public officers from criminal prosecution during their term of office. This means that no charge can lie against them at any court or tribunal. In the case of Umanah v Attah it was held that any charge or indictment against the first respondent while he was the governor of the state before or by the Code of Conduct Tribunal would have been rendered null and void under section 308 of the 1999 Constitution.Footnote ⁵² Also, in the case of Alamieseyiegha v Yeiwa, it was held that section 308 conferred on the appellant absolute immunity from civil and criminal proceedings.Footnote ⁵³ More than other perceived ills, the immunity clause has received the greatest criticism from the press and general public. According to Afuewelu Augustus, “section 308 of the Constitution offers a carte blanche on the executives to get away with virtually everything including murder while they are in office”.Footnote ⁵⁴ By virtue of the immunity clause, they have become sacred cows and superhuman beings who are absolutely untouchable. The age-long warning of Thomas Jefferson that power corrupts and that absolute power corrupts absolutely meant nothing to the drafters of the Nigerian Constitution. A similar warning was handed down by the former publicity secretary of Afenifere, Yinka Odumakin, when he noted that immunity is a dangerous weapon in a presidential system where the president, governors and their deputies have coercive powers and dominant control of all resources.Footnote ⁵⁵ Because the beneficiaries of the immunity clause enjoy absolute protection from criminal prosecution they go about committing crimes, sometimes with impunity. The immunity clause is also contrary to the saying that a stitch in time saves nine, since Nigeria's security officers have helplessly watched those entitled to immunity perforate their respective state treasuries just because the immunity clause has rendered them untouchable. This is reflected in the high number of counts with which some office holders have been charged after their term of office. For example, the former governors of Abia State (Orji Uzo Kalu), Edo State (Lucky Igbinedion) and Delta State (James Ibori) were charged by Economic and Financial Crime Commission on 107, 191 and 100 counts respectively at the end of their term of office. These charges are allowed to accumulate just because of the immunity clause. Worse still, the subsequent prosecutions usually end in ceremonial trials or a mere chasing of the shadows.

Thirdly, the immunity clause also promotes inequality before the law because those protected by the clause are immune from arrest and imprisonment or detention of any kind, unlike other citizens of the country. By section 308(1)(b) of the 1999 Constitution “[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.” This provision was restated in the case of ICS (Nigeria Ltd) v Balton BV Footnote ⁵⁶ where the Court of Appeal stated that a person to whom section 308 applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise. Having regard to this provision, the 2003 abduction of the then executive governor of Anambra State, Dr Chris Ngige, was totally unconstitutional and illegal. This provision neutralized the police power of arrest under the Police Act.Footnote ⁵⁷ It also means that no arrest warrant can lie against any office holder envisaged by the section. By this provision, any law enforcement officer who catches any of their excellencies red-handed indulging in a criminal act should turn the other way.

Finally, immunity promotes inequality before the law since certain court processes cannot be issued against those public officers protected by the immunity clause. By section 308(1)(c), “[n]o process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.” This provision consolidates paragraphs (a) and (b) of the same sub-section. It is meant to exclude totally those public officers from judicial control. A “process” according to Black's Law Dictionary is a summons or writ especially to appear or respond in court.Footnote ⁵⁸ Hence, no summons or a writ such as a subpoena can be applied for or issued against those public officers compelling or ordering them to appear in a court. However, even if such a process could lie against them, it will make no difference since an arrest warrant cannot be issued against them in the event of a failure to comply with such process. It is however not clear whether this provision also applies to processes applied for or issued by tribunals and panels since the very word that was used in the constitution is “court”. In the case of Balonwu v Obi the Supreme Court held that “any statute that seeks to oust the jurisdiction of the court or restrict the right of access to court must be strictly construed”.Footnote ⁵⁹ If this were to be applied here, then immunity should not be extended to proceedings before panels or tribunals other than a court. Hence, according to OO Nnamani, “the Code of Conduct should not be subject to criminal or civil immunity for the President, Vice-President, Governors and Deputy Governors under Section 308 of the Constitution”.Footnote ⁶⁰ Unfortunately, in Joshua Dariye v Code of Conduct Bureau and Others,Footnote ⁶¹ an Abuja High Court interpreted the Code of Conduct to be subject to the immunity provision. In this case, the former governor of Plateau State, Joshua Dariye, was arrested in 2004 by the Metropolitan Police in London for money laundering. When a charge was filed against him in Nigeria before the Code of Conduct Tribunal, alleging that he had concealed a foreign account, an Abuja Federal High Court held the trial to be unconstitutional because it violated the immunity clause.Footnote ⁶²

However, it should also be recalled that that a witness summons was issued by Justice Oputa's Human Rights Violations and Investigation Commission (the Oputa Panel) against Chief Olusegun Obasanjo while he was president. He was summoned by the commission in connection with a petition filed by Beko Ramsome Kuti over the burning of the Kalakuta Republic owned by his late brother, Fela Anikulapo Kuti, the arrest of 55 persons and the eventual death of his mother Funmilayo Ramsome Kuti on 17 February 1977 in Lagos. The president was required to say all he knew about the tragic incident that was instigated by Nigerian soldiers, especially the role that was played by him during and after the incident.Footnote ⁶³ If processes envisaged under the provision extend to processes applied for or issued by panels and tribunals, then Chief Olusegun Obasanjo would not have appeared before the Oputa Panel, especially as it has been held that immunity provided under section 308 cannot be waived by its beneficiaries.Footnote ⁶⁴

The law as a respecter of persons

The saying that the law is no respecter of persons is a notorious legal maxim that is well rooted in the principle of the rule of law and, as such, its origin is tied to the natural law origin of the rule of law itself. It is not only analogous to the concept of equality before the law, but doubles as its corollary, since the argument that all are equal before the law will have no meaning where law respects personalities. However the maxim itself is rather deceptive, since it gives the impression that the law does not treat persons with deference. The likelihood of this misconception was observed in the Dictionary of Modern Legal Usage: “[t]o many, this English language legal maxim seems to say nearly the opposite of what it actually denotes. The point is not that the law disrespects persons but that it pays no special regard to one's station in life: speaking ideally (if not idealistically), the law treats a homeless person with the same respect as it would a bishop.”Footnote ⁶⁵

This maxim shows that the law is uninfluenced by the consideration of a person's rank, power, wealth, etc.Footnote ⁶⁶ However, since laws are not self-executory, the maxim is no more than a clarion call for those who adjudicate, administer or enforce laws to be blind to people's status and office while discharging their duties. No wonder the lady justice adorning our courts and other structures where legal matters are dealt with wears a blindfold with a sword and a scale in each hand. The blindfold that, among other things, signifies the place of impartiality and objectivity in justice delivery also implies that the law is no respecter of persons.

One issue that stands out from the observation above in the Dictionary of Modern Legal Usage is that the maxim that the law is no respecter of persons is a mere fiction: it states the ideal. Hence, the maxim appears to be no different from other common legal fantasies and rhetoric, since there appears to be a wide gulf between what obtains in practice and the true meaning of the maxim. This point was clearly made by AA Owoade when he noted that “the saying that the law is no respecter of persons especially as laid down by common law, has mostly proved theoretical rather than practical”.Footnote ⁶⁷

Sometime this maxim is formerly and expressly rendered nugatory via the instrumentality of legislation. This is usually by means of an ouster clause in legal instruments. Ouster clauses according to Professor Okany are “provisions of law which expressly or by implication seek to exclude court jurisdiction. They seek to foreclose the courts from either a scrutiny of [the legislations'] competence and constitutionality and or one or more aspects of the matters covered by those legislations. They are generally inimical to the rule of law and effective administration of justice except when they are enacted in response to clear socio-legal needs geared towards effective social engineering.”Footnote ⁶⁸ An ouster clause is therefore an exception to the maxim that the law is no respecter of persons since it inhibits the normal operation of the principle of the rule of law. One of these ouster clauses contained in Nigeria's lex corpus is the immunity clause in section 308 of the 1999 Constitution. The rationale for the immunity clause, as argued by the Supreme Court in Fawehinmi, was to “afford them quiet tenure free from harassment on personal matters rather than matters of office. This is to afford the person complete devotion to the high office which pertains to welfare and stability of governance”.Footnote ⁶⁹ It was also held in the same case that “the immunity is to protect such a person from the harassment of his person while he is in office for action done in his private capacity before or during his tenure in office”.Footnote ⁷⁰

The potency of the maxim that law is no respecter of persons was tested the notorious case of COP v Alhaji Salisu Buhari.Footnote ⁷¹ Shortly before his arraignment on 28 July 1999, the accused was an elected legislator of the National Assembly, holding the office of speaker of the House of Representatives. His travails began when The News, a weekly magazine based in Lagos and in its 19th edition, boldly alleged that the accused had doctored his resumé with forged educational results and certificates (including a National Youth Service Corps discharge certificate and a university degree appearing to issue from the University of Toronto, Canada) and that he made a false declaration of age by which his youthful age of 29 was elevated to 36, all in a bid to meet the statutory requirements for the elective office for which he vied and to stand even taller than his peers in the House of Representatives. The accused, not unexpectedly, flatly denied all the allegations of forgery and false declaration of age levelled against him, and even instituted a law suit against The News for defamation. The allegations, denials and the facts of the law suit fully engaged the attention of the general public. The University of Toronto quickly responded to the enquiries and firmly stated that the name of the accused did not exist in their records of students of the university. In the face of overwhelming public pressure, the accused capitulated and made a public confession of the allegations of forgery and false declaration of age. He withdrew his membership of the National Assembly, and made a public apology in the following words: “I apologise to the nation. I apologise to my family and friends for all the distress I have caused them. Everything in life is for a purpose and my prayer is that my humiliation will illustrate that in our democracy, nobody, no matter how highly placed, will be above the law. As I look up from the ground following my fall from grace. I solemnly ask for forgivingness [sic].”Footnote ⁷² When the information was read to and explained to the accused, he admitted the offence against him. Consequently, he was tried summarily and convicted. While sentencing him, the chief magistrate who tried him had this to say: “[j]udicial notice is taken that many Nigerians are sympathetic to the convict, regard being had to the humiliation he has suffered as a result of his own acts. But it is pertinent that those advocating for forgiveness ought to know that the offences committed by the convict are not compoundable ones. The public may decide to forgive but the law has to take its course.”Footnote ⁷³

It is pertinent to observe that this landmark judgment that strengthened the culture of rule of law in Nigeria would not have been possible if the office of the speaker of the House of Representatives has also been protected by the immunity clause. Again, the immunity of public officers is very undesirable in a presidential system of government because of the enormous power the president and the state chief executives wield. Their power and influence need to be tamed to discourage the emergence of a totalitarian democracy. A look at other countries with an analogous jurisdiction, especially the USA, will support this contention. It should be recalled that Nigeria's democracy is substantially modelled after the USA's presidential system of government. In the USA, neither the constitution nor other statutes make provision for executive immunity. Hence in the USA, the heads of the executive arm of government are not immune from prosecution whether civil or criminal, although a tactical attempt was made in the case of Marbury v Madison Footnote ⁷⁴ to introduce executive immunity via the interpretation of the concept of separation of powers. However this attempt could not materialize since some heads of the executive arm of government like the president, vice president and governors have since been tried. For example, in the popular case of Jones v Clinton Footnote ⁷⁵ an Arkansas state employee brought a suit seeking damages, claiming that, during his tenure as governor of the state of Arkansas, President Clinton had made crude and unwanted sexual advances toward her and that she had been punished for rejecting them. President Clinton's argument for a postponement of the suit until he left office was refused by both the Court of Appeal and the Supreme Court of the United States.Footnote ⁷⁶ In 1804, Aaron Burr, a vice-president, was indicted in the states of New York and New Jersey for killing Alexander Hamilton. Burr never claimed immunity from prosecution, and he completed his term with the stigma of indictment.Footnote ⁷⁷ Also, President Richard Nixon's vice-president, Spiro Agnew, was indicted on tax evasion, money laundering and bribery. The crimes allegedly took place while he was governor of Maryland.Footnote ⁷⁸