The much derided immunity inherent in Section 308 of the 1999 Constitution is not applicable once the individual protected under the section ceases to function in an immune capacity. Period. Also, in rendering our judgment on whether to amend or expunge Sec 308 from our Constitution, we should take cognizance of the fact that not all Governors are corrupt. Adding to that, the section does not protect or immunize serving members of the National Assembly from criminal or civil prosecution for unlawful conduct committed while in active capacity as a legislator. Finally, Section 308, as written and intended, does not extend to Legislative or Parliamentary Immunity, referred to as Speech and Debate protection. Therefore, the section should be left intact. Executive immunity enhances harmony in a democratic political system that would, no doubt, be eroded, if the President and Governors are exposed to the vagaries of our judicial system. Most importantly, arrest and trial of those protected under the section, would paralyze activities in the affected states or at the federal level, as the case may be. That was the rationale and legislative intent of section 308 of the 1999 Constitution – defined as the thinking of the drafters based on public policy considerations. On the question of whether the immunity follows a Governor to the Senate or House of Representative, the answer is a capital NO. Immunity, for all intents and purposes, is office specific. It is neither perpetual nor inalienable. An ex-Governor who is presently a Senator or a member of the House of Representative is subject to investigation, indictment, or prosecution to the full extent of the law for any fraudulent conduct authorized by him or executed at his command. In sum, corruption, embezzlement of public funds and squandering of riches in Nigeria are seemingly insurmountable, because of the unwholesome and, if I may add, unwritten collaborative resolve of those in the judicial branch – a monumental national crisis compounded by the inability of those vested with law enforcement power (AG, Police, EFCC, and ICPC) to develop new mechanisms with a view to combating abuse of discretionary power (adjournments and injunctions) by judges, as well as, the procedural rigmarole (delay tactics) perfected by defense counsels. We must be bold, resolute, and creative in our search for real justice. And our approach to assets forfeiture and recovery must be purposeful and nondiscriminatory.
To Amend or Not to Amend:
At the just concluded retreat organized by the Ad-Hoc Committee on Constitutional Reform in Port Harcourt in River State, on May 27, 2012, Sec 308 of the 1999 Constitution that deals with immunity came up for discussion, and as expected, there was a demand for its review, amendment, or a total repeal. For the purpose of record, Sec 308 (1) of the 1999 Constitution of the Federal Republic of Nigeria, does not by any stretch of the imagination shield or immunize any serving member of the National Assembly from indictment or prosecution for any crime committed before and during his or her term of office.
And on a more disturbing note, the habit of Governors who have already completed their two terms, rigging and buying their way to the Senate or the Lower House with a view to evading civil or criminal prosecution for fraudulent conduct committed as Governor is outright ludicrous. Because there is no immunity covering past misconduct. Simply put, the immunity as it is in Section 308 of the 1999 Constitution, as amended, is not about the person or the conduct. It is specifically speaking, about the office. In other words, the beneficiary of the immunity clause is subject to investigation at the cessation of the protected period – as long as there is probable cause to do so on the part of law enforcement agencies. And the conduct can be revisited and reviewed to the extent of its inconsistency with established laws and orders governing the office.
Similarly, the over-hyped immunity allegedly enjoyed by serving members of the National Assembly from criminal or civil prosecution for criminal wrongdoing or fraudulent engagement is a complete fiction. Because the immunity, in the context in which it is perceived by Nigerians, is non sequitur – it does not exist as such. Therefore, the brouhaha surrounding the alleged immunity enjoyed by “lawmakers” is grossly misplaced, and the assault on Section 308 is unwarranted.
Our law enforcement agencies (Attorney General, ICPC, the Police and EFCC) should wake up to their responsibilities. Section 308 does not shield any member of the National Assembly from prosecution. Period. This is not a matter for debate; it is a statement of fact. Executive immunity is unrelated to Speech and Debate related Parliamentary Immunity. Also, it does not preclude law enforcement agencies from investigating those protected under the section (President, Vice President, Governor, and Deputy Governor) for involvement in unjust enrichment.
At this juncture, it is worth restating that Section 308 protects only serving President, Vice President, Governor or Deputy Governor when they are in office. MEMBERS OF THE NATIONAL ASSEMBLY DO NOT ENJOY ANY IMMUNITY FROM CIVIL OR CRIMINAL PROSECUTION UNDER SECTION 308. THE ONLY IMMUNITY THEY ENJOY IS SIMILAR TO WHAT OBTAINS UNDER THE SPEECH AND DEBATE CLAUSE IN THE AMERICAN CONSTITUTION – THAT IS IMMUNITY ON THE BASIS OF WHAT THEY SAY DURING DEBATES OR DELIBERATIONS IN THE HOUSE OR IN THE SENATE OR IN THE PREPARATION THEREOF. IT DOES NOT COVER THEIR UNJUST ENRICHMENT, FRAUDULENT ENGAGEMENT OR CRIMINAL CONDUCT OUTSIDE OR INSIDE OF THE NATIONAL ASSEMBLY.
For ease of understanding, I would like to reproduce the entire Sec 308 of the 1999 Constitution verbatim. The Section provides:
(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 language of Sec 308 above, there is no part of it that tends to shield a member of the National Assembly from indictment for crime committed while in office as a member of the National Assembly or in a previous office as Governor or Deputy Governor. Specifically, Sec 308 (3) reads: “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.” Emphases mine.
That is Section 308 of the 1999 Constitution for you! The Section applies only to “period during which the person holding such office is required to perform the functions of the office.” In other words, a Senator or a member of the House of Assembly is not that “person” and does not need to perform the functions of a Governor while serving as a member of the National Assembly. Therefore, Sec 308 does not by any stretch of the imagination shield any of them from prosecution for criminal wrong doing that took place while serving in an earlier immune capacity or while they were in office as Governors or Deputy Governors.
The same is true of President and Vice President. In that case, you could conveniently, and rightly so, indict and prosecute any of the today ex-Presidents or Vice Presidents, if you have probable cause to do so. But first, a prima facie case for unjust enrichment must be established. That’s it. It doesn’t take rocket science to accomplish that, knowing full well the antecedents of Nigerian thieving Governors. So, the problem is not the law or the constitution, but application and the attitude of those vested with power of enforcement.
Rationale and Public Policy Arguments:
In spite of everything, the immunity under Section 308 of the 1999 Constitution is well-meant. The President, or as the case may be, a Governor, is not suitably placed to enjoy the luxury of time defending lawsuits, whether frivolous or meritorious, while in active duty as Governor or President.
Our proclivity for lawsuit knows no bounds; removal of that immunity clause from our constitution would in all probability end up doing more harm than good to our fragile constitutional democracy. Every Ademola, Usman, and Okechukwu, as well as members of the opposition parties would, through frivolous lawsuits and spurious petitions, incapacitate sitting President, or Governors as the case may be, without regard to judicial ethics or the concerns of Nigerian voters. And in the process, take them off course from real and purposeful governance.
In essence, executive immunity enhances harmony in the political process that would, no doubt, be eroded, if Presidents and Governors are exposed to the vagaries of our judicial system. Adding to that, arrest and trial of those protected under the section, would paralyze activities in the affected states or at the federal level, as the case may be. That was the rationale and legislative intent of section 308 of the 1999 Constitution – defined as the thinking of the drafters based on public policy considerations.
There is no doubt that the benefits of the Immunity Clause outweigh the defects. The defects, if at all, are traceable to the inability of those empowered with law enforcement obligations to make the Constitution live up to its true purpose as the supreme law of the land. To that extent, it requires diligent performance (prosecution) as expected of true fiduciary (EFCC, the Police, ICPC, and the AG). It’s all about the interpretation, audacity, and genuine intent to fight and surmount the ills of corruption and unjust enrichment that irredeemably wrecked a supposedly great nation-state.
We should not act on the impulse of the moment and abrogate a constitutional framework that is imbued with the right ingredients to serve worthy national purpose – growing our democracy and simultaneously, ensuring stability in the political system.
Granted, our core leadership team is made up of some of the most vile, greedy and shameless opportunists you could ever find on the face of the earth; be that as it may, we cannot embark on constitutional amendment just to accommodate our idiosyncrasies and every unfortunate aberration. That’s retrogressive political evolution. What would you do, if God willing, we are fortunate to have selfless and honest leaders at the helm of affairs? Amend the constitution once again to align with the new reality? No. We can do better.
We must be proactive, creative, and sincere in our approach to war against corruption and assets recovery or forfeiture. Those who are known to be corrupt should be apprehended, prosecuted, and made to forfeit their illegally acquired wealth to the state as soon as they cease to function under the protection of Section 308. According to the FBI (Federal Bureau of Investigation), “Many criminals are motivated by greed and the acquisition of material goods. Therefore, the ability of the government to forfeit property connected with criminal activity can be an effective law enforcement tool by reducing the incentive for illegal conduct. Asset forfeiture takes the profit out of crime by helping to eliminate the ability of the offender to command resources necessary to continue illegal activities.”
Today, there are thousands of fraudulent Nigerians out there on the street, including former Governors and former Deputy Governors, as well as former Presidents and former Vice Presidents, known to have fraudulently enriched themselves with public funds. They are living free and living large on our wealth. And we watch. They have no immunity and they enjoy no immunity. But we watch. They are yet to be apprehended and prosecuted by the law enforcement agencies, in spite of the fact that these fraudulent Nigerians and ex-political leaders do not enjoy any atom of immunity.
It is indeed very sad that some sections of the Nigeria political establishment, including opinion leaders and public affairs commentators so gotten embroiled in that perverted notion that once a Governor or Deputy Governor ceases to function as Governor or Deputy Governor, or is elected to the Senate or House of Representative, he or she is still immune from arrest and trial for the unjust enrichment perpetrated as Governor or Deputy Governor. That is complete baloney. The immunity is office specific – it is over at the end of the protected period. The same rules apply to President and Vice President.
Therefore, the Section should be strengthened in order to serve the intended purpose, and not diluted by any means. Immunity and unjust enrichment are mutually exclusive. That we want to strengthen our democratic values via some constitutional mechanisms doesn’t translate to encouraging official misconduct. The rationale was to engender purposeful governance, to ensure uninterrupted governmental activities at the state and federal levels consistent with fundamental principles of democracy and rule of laws. The major constraint is the nonchalant culture prevalent within the judicial branch bordering on procedural rigmarole – unnecessary adjournments and frequent injunctive orders, without reasonable excuse or a show of irreparable harm or injury to the defendant.
Fellow Nigerians, whatever we do, we must not lose sight of the underlying imperative, designed to engender consistency and robust democratic values in our troubled political system that Section 308 represents. Therefore, we must be bold about consolidating those democratic values, without regards to the race or the social status of the culprits before and during trial. That is the first step to renewing Nigeria. It is about equal rights and justice.
You steal, you steal! Period! Availing your client with the defense of interim or permanent injunction in a clear-cut case of embezzlement as perfected by our reputable and highly respected lawyers is overtly aiding and abetting malfeasance. Injunctive relief is a discretionary (equitable) remedy – it is not a judgment on the merit with respect to the substantive case. He who comes into equity must come with clean hands, goes a legal maxim. Not exactly in Nigeria. What is so irreparable a damage about standing trial to defend allegation of fraudulent engagement against you?
If your hands are clean, and you rightly believe that you are innocent as charged, then, be willing to stand trial and defend the allegation of unjust enrichment instituted against you, instead of resorting to procedural mumble jumble to circumvent real justice. And that, my friends, is our real problem; not Section 308. This is the time we should all stand up and demand for curtailment in the grant of injunctions and other discretionary reliefs by our Judges. It is now left to EFCC to train its lawyers on how to surmount any of such motions in our regular courts. Because there is a threshold that the movant must meet to sustain any motion for injunctive relief. That, of course, is outside the scope of this essay.
As an addendum, I want to make it abundantly clear that I am not against capitalism or private ownership or private acquisition of wealth. However, I am unequivocally against over-leveraged capitalism and the prevailing culture of impunity and blatant abuse of political office by those vested with political power. To keep enriching yourself with public funds that you and your children cannot exhaust, buying cars you cannot drive or landed property you barely use shows stupidity. It is not fair. It is not right. And it is morally repugnant. If you have no idea of any capital project deserving funding; let education be free at all levels, because quality education, by any standard, is the best investment in the life of a child. Or, if that is not good enough, connect Marinna, across from Tafawa Balewa’s Square, linking Apapa and Mile Two to the Lagos/Badagry Expressway in Lagos State by an over-head bridge or an underground rail system. That is a bold project. ‘A good transportation network is important to all societies and it is vital in sustaining economic success in modern economy.’
Alex (Ehimhantie’Aiyo) Aidaghese
If you are here reading this very paragraph, it means you are now one of the thousands intellectually curious Nigerians who made this article the number one on this Blog – the most searched and the most read piece of legal opinion and constitutional review piece within the Nigerian social media scene in the past three years. On October 21, 2014, the Conference Committee of the National Assembly on Constitutional Review retained Section 308 of the 1999 Constitution as it was originally written. We made the case – a compelling case for retention – you spread the news, the Conference Committee concurred, and the rest is now history. AA May 15, 2015
INTRODUCTION TO JUDICIAL ACTIVISM: Making a Distinction Between Criminal Wrong Doing and The Profits of Crime, Otherwise Known as Unjust Enrichment.
(By the way, what you are about to read is not part of the article. It is simply an academic exercise for those who care. For a start, the likelihood of its happening in real life or in this generation in Nigeria is very remote).
The question is: Can we indict and prosecute a sitting President, Vice President, Governors and Deputy Governors for fraudulent and unjust enrichment perpetrated while in office under the premise of “a nominal party” pursuant to Sec 308(2)?
The answer is not absolute. But first, you must be ready to engage in semantic war with the presiding judge and the defense counsel (the lawyer representing the defendant) with respect to the definition or meaning of a nominal party.
We could, in all sincerity, institute a civil action to recover or recoup the fruits of crime or unjust enrichment, if we are, applying preponderance of the evidence standard, able to prove that the owner of a specific property or bank account (e.g. President, Vice President, Governor or Deputy Governor) is only a nominal party – someone not directly involved in the case. But he or she is nevertheless connected to the case by virtue of his or her ownership of the property or bank account in question.
In other words, they are immune, but not their illegally or fraudulently acquired wealth. EFCC is within its power to seize and forfeit their properties and bank accounts to the State as long as we can prove that they are fruits of corrupt enrichment. Thus, it is probable to conclude that Sec 308 (2) does not shield or immune a sitting President, Vice President, Governor or Deputy Governor from forfeiting to the Nigerian people, landed properties or Bank accounts fraudulently acquired, if a civil action is instituted against such landed property and bank accounts. Once again, Sec 308 (2) provides: “The provisions of subsection (1) of this section [that is the immunity] shall not apply to civil proceedings against a person [that is President, Vice President Governor and Deputy Governor] 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 [not directly connected].” Emphasis mine. It is the same thing as arguing: since you are not directly connected (a nominal party), invariably your houses and bank accounts are not immune from seizure and forfeiture, because the suit is after your property, and not you as a person.
To that extent, owners of a fraudulently acquired property or bank accounts – for example, President, Vice President, Governor and Deputy Governor – cannot avail themselves with the defense of immunity under this section, if they are only indirectly or tangentially connected to the action – a nominal party. Thus, Subsection 308(2) provides cover for EFCC, ICPC, and AGF, if they want to go after the loots of a serving President, Vice President, Governors, or Deputy Governor. Provided the action is in rem (property) and not in personam (the person).
I want to reiterate that the action is only after the fruits of crime and not the crime itself. Adding to that, the case is not against the perpetrators of the crime or fraud, but just the loots. If you want to call it prosecutorial activism, so be it. As I said earlier, you must be ready to do battle in English Language regarding who “a nominal party” is. So it is not just establishing a prima facie case for unjust enrichment, but being able to establish by preponderance of the evidence the extent of the disconnect between the perpetrator and the unjust enrichment (bank accounts and property) that would justify civil trial or forfeiture.
Finally, given that it is a civil trial, you do not need to prove anything beyond reasonable doubt. Even if that is the standard (proof beyond reasonable doubt), you do not need to crack your brain worrying if you can prove your case beyond reasonable doubt, when trying to convict a Nigerian thief. Evidence are readily available. He is a stupid thief who rightly or wrongly believe that he cannot be convicted, even when caught in the act – he has substantial accumulation of your money – our money – to hire the best of lawyers to pervert the justice system through laughable motions for adjournment.
(Be that as it may, it requires legal erudition and a willing court to be able to argue a motion based on the above premise. By the way, this is simply an intellectual voyaging or a fishing expedition, because no Attorney General or IGP would in his right sense institute a case against a sitting President or Governor in Nigeria to recoup illegally acquired wealth).
Thanks once again for coming this far.
Mr. Alex (Ehimhantie-Aiyo) Aidaghese*
President & CEO Alex and Partners
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