Can the Vice President waive his immunity over allegation?
An appraisal of whether a person protected by the immunity provisions of the 1999 constitution of the federal republic of Nigeria (as amended) can waive the right vis-à-vis whether he can maintain an action against another person. Lawyers speak with Abimbola Akindunbi and Kayode Olabanji on the position of th law.
T he issue of constitutional immunity is in the news again. Major for sole reasons the Vice President of the Federal Republic of Nigeria, Prof. Yemi Osinbajo, SAN, said that he may lay down his immunity; and the question has been asked whether the Vice President can lay down the immunity provided for his benefit by the Constitution.
I, therefore, take the liberty to comment on whether the Vice President can waive his immunity vis-à-vis the provisions of section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
For reference purpose, section 308 provides thus:
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.
The implication of the foregoing provision of the law is that the person holding the office does not have the right to waive the immunity because any such waiver is ineffective as the immunity is not that of the person holding the office but of that particular office he represents during the tenure of the office.
This position further found backing in the use of the word,, “shall” as the operative word in the section which word admits of no discretion whatsoever.
The Nigerian courts have further reiterated this position in a number of cases.
For example, in Tinubu v. IMB Securities Plc, the Court of Appeal took the view that a person to whom section 308 applies could not even, as an appellant pursue an appeal before this Court during the period of his office.
The court took the view that a plaintiff to whom section 308 does not directly apply could not initiate or continue proceedings against a person to whom section 308 applies.
The latter person could not pursue an appeal against any decision of the trial court. The reason being that, to allow that person was akin to a continuation of the proceedings before the lower court. And the Supreme Court in upholding the reasoning of Court of Appeal said per Iguh JSC:
In my view, the immunity granted to the incumbent of the relevant office under section 308 (1) (a) of the Constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal, in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds office.
No question of waiver of the relevant immunity by the incumbent of the office concerned or indeed, by the courts may, therefore, arise. In my view, the Court of Appeal declined to entertain the appellant’s appeal pending before it as to do otherwise would amount to continuing the plaintiff/ respondent’s suit against the defendant/appellant, a suit which under section 308 (1)(a) of the 1999 Constitution, shall not be continued against the appellant while he remained Governor of Lagos State.
It is for the same reasons that the court has laid it down as a rule that the time a person spends in such offices will not be reckoned with in the calculation of time for the purpose of statute of limitation
Further in Industrial Commercial Service Ltd v. Balton, the Court of Appeal held that no question of waiver of the relevant immunity by the incumbent of the offices concerned, or indeed by the courts may arise; it is an absolute bar.
Even where the incumbent fails to rely on the immunity clause the court will still decline jurisdiction to entertain the case. Hence in Rotimi & Ors v. Macgregor, an action for damages for trespass committed by the defendants against the plaintiff was brought before the court.
While the action was pending, the first defendant became the Military Governor of Western State. The provision of section 161(1)(c) of the 1963 Constitution applied and the action should have been struck out against him.
The Supreme Court held that section 161(1)(c) of the Constitution prescribes immunity from court process, and the incumbent of the relevant office cannot waive the effect of the section, so that even if it was not relied on before the court, the court is bound to give effect to it.
It is worthy of mention at this junction, that the immunity clause is of great antiquity in Nigeria’s nascent constitutional law jurisprudence. The vestiges of the doctrine of immunity in favour of the occupier of these offices have always been a consistent feature of each successive constitutions of Nigeria.
Without disregarding the argument that the immunity clause provided in 308(3) of the Constitution have further incentivized the occupiers of these offices in the commission of civil wrongs or crime.
For instance, by the provision of the immunity clause, it is almost impossible to hold any case against an incumbent, even if he openly commits an offence. Hence, they are immune to prosecution for any type of offence while their tenure last.
That is why some Governors were alleged to have indulged in carefree looting of their state treasury. Some Governors have allegedly been involved in the murder of political opponents, while some have been arrested abroad for money laundering and other criminal activities.
Furthermore, the intervening period before the commencement of the of the civil or criminal proceedings against the President, Vice-President, Governor or Deputy Governor, will create an opportunity for a criminally-minded executive to destroy the evidence and make it almost impossible for the law to take its due course.
However, the immunity clause is not absolute as the law provides some exceptions. Some of the exceptions are: (1) where the incumbent is a nominal party in a suit and suits against official acts.
In Abacha v. Fawehinmi, the Supreme Court held per Uwaifo JSC, that the immunity provided for, does not apply to [the] person in question in his official capacity or to a civil or criminal proceeding in which such a person is only a nominal party;
(2) Police investigations – Section 308 of the 1999 Constitution does not immune the officials stipulated in its subsection.
(3) From police investigation. This is because investigation of a crime by the police is a preliminary course, which may or may not result in a criminal prosecution; (3) Election petitions; (4) Acts Done Outside Nigeria – The immunity granted certain officials under section 308 of the 1999 Constitution does not cover acts done by these officials outside the country. This was why the former Governor of Bayelsa State (Governor Alamieyeseigha) was arrested in Britain while he was still the Governor of Bayelsa State for money laundering. A discussion of the case will now be carried out.
Flowing from the foregoing position of the law, the immunity cannot be waived by the holder or the person whom the constitution conferred it on. This is because the constitution envisages a situation which admits of non distraction whatsoever for the holder of such position. However this is no to say that the person cannot be prosecuted or any other civil proceedings commenced against the person.
In fact the constitution provided for the procedure for impeachment and after impeachment, the proceedings property may be commenced and the statute of limited cannot apply to such person.
In closing and in particular reference to the decision of the Vice President to waive his immunity, in as much as I will like to commend that position is unprecedented in our democracy, unless the constitution is amended and an express waiver is permitted or provided therein, the VP cannot constitutionally waive his immunity. Any waiver of the immunity of the VP is unconstitutional, illegal null and void and of no effect whatsoever.
May I further add by way of closing remarks, that the only option available to the VP in his bid to waive his immunity is to resign and I don’t think this country is tired of the services of such an honourable man as the VIce President of the Federal Republic of Nigeria.
– Mr Joshua Sebiotimo, a legal practitioner
T he Vice President has immunity against prosecution of any offence, If there is any alleged offence. Then, they must wait until the expiration of his tenure.
The constitution guarantees him right against any prosecution, until the expiration of his tenure.
He cannot be prosecuted for any offence he might have committed while still the Vice President.
I was listening to news some days ago, reporting that the Vice President wants to remove his immunity, for him to be prosecuted. That is not right.
It is his constitutional right and I am very sure he cannot by his own view abolish or remove the immunity.
He has been covered by that immunity. Whatever decision he is making cannot override what is stated in the constitution.
The constitution said that as long as he is occupying that seat, he cannot be prosecuted for any offence. So, in my own view, I think he should wait till the appropriate time for proper action to be taken, if he has committed any offence.
No law enforcement agencies can at this stage prosecute him for an alleged offence he might have committed until that immunity is being taken. And that will be after the expiration of his tenure as the Vice President of the Federal Republic of Nigeria.
Removing his immunity by himself to be probed, that will be a new step in our jurisprudent, because we have not heard something of such in Nigeria.
In my view, he cannot take away that immunity. He cannot subject himself to prosecution due to the fact that it is the constitution that guarantees him the right.
His decision cannot supersede the constitution, despite that he is the one willing to remove his constitutional rights without any pressure from anybody.
The constitution is above and superior over anybody.
– Mr. Femi Akinyemi, a legal practitioner
I read with keen interest, the letter written by the respected legal pundit, Mr. Femi Falana, on behalf of his client, Prof. Yemi Osinbajo, and the tweet of the Vice President on his verified tweeter handler as to his intention to waive his immunity to enable the most robust adjudication of these claims of libel and malicious falsehood.
It is trite law that the issue contained in section 308 of the Constitution robs the court off jurisdiction to entertain any matter contained therein. It is an elementary position of the law that parties cannot by their agreement confer jurisdiction on the court.
It is incumbent at this juncture to reproduce verbatim, the provisions of sections 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) before delving into an appraisal of this subject matter.
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 purpose of any proceedings against any 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 any 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.
A meticulous appraisal of the above provisions show that the 1999 Constitution of the Federal Republic of Nigeria (as amended) never expressly stated that, “a person occupying the position of President, Vice President, Governor and Deputy Governor cannot institute legal action against any person.
In other words, the section provides immunity from legal action to the officials mentioned therein without debarring them from instituting legal action in their personal capacity against other persons.
It is my well considered opinion that any construction by whatever canon of interpretation which suggests that section 308 of the 1999 Constitution debars the President, Vice President, Governor and Deputy Governor, from instituting legal action to protect their personal interests would be akin to putting something on nothing nonsense.
Such an interpretation would by necessarily implication infringe on the fundamental rights of the respective officers, which is well articulated in the Constitution.
Some people have argued that if the Vice President decides to sue, the likelihood that he may be subjected to being counter claimed against is worthy of note, which in the same vein, may subject him to extraneous expedition of giving evidence or being summoned to do same.
It is in my view that the fact a person is eligible to vote does not guarantee that he qualifies to contest an election.
By necessary implication, both the right not to be sued and the fundamental rights which enures inherently in favour of the Vice President exist independently without an iota of doubt.
From the foregoing unequivocal statutory provisions, it is trite that the President, Vice President Governor or Deputy Governor, cannot temporary waive their immunity while still occupying their positions, save they resigned.
It is noteworthy, however, that this immunity does not cloak them from being investigated while still in office. It is legally impracticable and impossible to successfully, temporarily waive your immunity (while still in office) except/unless by resignation from the office.
It is my humble view, that the Vice President, Prof Yemi Osinbajo, needs not waive his immunity to maintain an action for Libel and Malicious falsehood against Timi Frank and Katch Ononuju; as his immunity does not debar him from exercising his right to sue in his personal capacity.
From the foregoing, there are only two options open to the Vice President in the circumstances:
(1) By resigning from office in order to extricate himself from the protection of section 308, so that he can submit to a full criminal adjudication (trial) over the matter, to clear his name; OR
(2) By submitting to investigation and by cooperating with the investigating law enforcement agents in order to determine whether or not there is any ‘prima facie’ case against him. And if there is, they are to wait until his tenure ends for a robust adjudication of the charges or allegations against him in order to determine whether or not, he is guilty.
Mr. Steve Olaleye Akintububo
Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, makes provisions for immunity for President, Vice President, State Governors and their deputies, against both civil and criminal litigations against the person of the holder of the office, while still holding the office.
The holders of such offices, including the Vice President, who is the subject matter of this discourse, cannot waive the immunity at all. The immunity clause says that no civil or criminal litigation shall lie against the person who holds such offices.
This implies that they cannot be sued in their personal capacity, while still holding the offices, though they can be sued as a nominal party where the joining of his office in a suit is necessary.
In a similar vein, the holder of such offices cannot be prosecuted for any criminal offence. Take notice that this immunity covers the holders of the offices during their tenures in the office.
The Vice President cannot waive his immunity.
Though the law is silent on whether the holders of such exalted offices can institute action in personal capacity against an opposing party, I strongly posit that the immunity clause does not permit them to do so. This is because if the Vice President sues Timi Frank, the defendant has the right to file a counter claim. A counter claim is an independent action on its own.
It, therefore, means that by that counter claim, a civil litigation has been taken out against the Vice President, as against the spirit of section 308 of the Constitution. So, whichever way you look at It, the Vice President has no power to waive the immunity granted to his office by the Constitution.
The only remedy left for him is to resign his position in order to carry out any civil action he intended to file. Immunity clause is basically made to protect the exalted office and it’s holders from unnecessary distractions during their tenure in the office.
– Mr Kehinde Aladedutire
W ell, I think he is only doing that on a moral ground. Legally, a person cannot by consent or acquiescence waive a constitutional right.
In respect of a civil case, he does not need to waive any immunity before he personally ventilates his grievance for the defamatory publication in a court of law.