NAME: OLALEYE, AYOOLA AQUILA

MATRIC NUMBER: 130701011

PROJECT TOPIC: AN EXAMINATION OF THE IMMUNITY GRANTED TO THE EXECUTIVE IN

NIGERIA

TABLE OF CONTENT

ABSTRACT

CHAPTER ONE

INTRTODUCTION

1.1 Background to the study

1.2 Objectives of the study
1.3 Scope of the study
1.4 Justification for the study
1.5 Definition of Concepts
1.6 Organization of the chapters
1.7 References

CHAPTER TWO

LITERATURE REVIEW AND THEORETICAL FRAMEWORK

2.1 Concept of executive immunity

2.2 Statutory framework for executive immunity/of the immunity clause
2.3 Good governance and executive Immunity
2.4 Executive versus legislative immunity
2.5 Exceptions to the immunity clause

CHAPTER THREE

METHODOLOGY

3.1 Introduction.
3.2 Research design.
3.3 Sources of data.
3.4 Research question.
3.5 Validity and reliability of materials.
3.6 Reference.
CHAPTER FOUR

PRESENTATION AND ANALYSIS: RECONSIDERING EXECUTIVE IMMUNITY

4.1 Uses and abuses of the immunity clause

4.2 The rule of law and its effect on Executive Immunity
4.3 Problems posed by the existence of executive immunity in the 1999 constitution
4.4 Reconsidering executive immunity

CHAPTER FIVE

SUMMARY, CONCLUSION AND RECOMMENDATIONS

5.1 Summary
5.2 Conclusion
5.3 Recommendation
ABSTRACT

In every nation of the world, certain measures are taken by the legislature to protect and
preserve the image of members of the executive arm of government, as well as ensure that
they are entirely focused on the task handed to them by the edicts of democracy; to serve
the people who voted them into their various positions without any considerable tittle of
distraction. These measures are usually entrenched in the grundnorm of each state and they
mainly grant immunity to the members of the executive arm of government from being
sued in their personal capacity while in office. A massive percentage of citizens have
however expressed their worries over the abuse of the immunity clause, while others have
strongly suggested that its existence is of great importance in Nigeria, thereby leading to
arguments for and against its removal from the constitution of Nigeria.

The basis of this project is to critically examine the provisions of section 308 of the
constitution of the federal republic of Nigeria 1999, which provides mainly for executive
immunity. This section simply connotes that, no President, Vice-President, Governor, or
Deputy Governor can be sued in his or her personal capacity while in office. The concept of
executive immunity stems back to the period of absolute monarchy when it was generally
believed that the King was supreme and could never be wrong in the face of the law. This
idea abrogates the essence of the rule of law by placing the executive arm of government
above the dictates of the law. In this paper, the concept of immunity, the essence of
immunity in the Nigerian constitution, the legal perspective of executive immunity, the
doings and undoing of executive immunity in Nigeria, the consequences of executive
immunity on the other arms of government, comparative analysis on the issue of executive
immunity in other parts of the world, among other topical issues related to the subject
matter will be discussed in details.
Chapter 1

INTRODUCTION

1.1 Background of the study

The concept of immunity gained its roots from the ancient English feudal structure which
later became a common law principle.1 It is founded upon the anachronistic legal tenet of
rex non potest peccare (the King can commit no wrong). As the King enjoyed absolute
immunity he could neither be impeded in his own courts nor subject to any foreign
jurisdiction. Menelaus of Sparta confirmed that the King was above the Law of the Realm,
when he said “when a King takes spoils, he robs no one; when a King kills, he commits no
murder, he only fulfils justice.”2

The doctrine of executive immunity in Nigeria dates back to the period of colonial rule
when the British imposed the precept of state immunity on Nigeria. The concept of
sovereign immunity was one of the Common Law principles inherited by Nigeria as a former
colony of Britain. Under colonial rule, the position was that the Queen had sovereignty over
the whole Nigerian territory and as such she enjoyed sovereign immunity throughout the
territory. Consequently, Nigerians were unable to sue the British Government for the
massive violations of their rights and the criminal diversion of the wealth of the country
under colonial rule.3

On attainment of independence, a Nigerian represented the Queen but on attainment of a

republican status the President of Nigeria succeeded the Queen as Head of State. The
immunity enjoyed by the Queen was transferred to the President and the Governors after
the attainment of republican status in 1963.4 Thus, section 161 of the 1963 Republican
Constitution provided that:

1. (a) no criminal proceedings shall be instituted or continued during his period of office
against a person to whom this subsection applies; and

(b) such a person shall not be arrested or imprisoned during that period either in pursuance
of the process of any court or otherwise; and

(c) no proceeding in which relief is claimed against such a person in his personal capacity
shall be instituted or continued in any court during his period of office; but in ascertaining
whether any period of limitation has expired for the purpose of any proceedings against a
person to whom this subsection applies, his period of office shall be left out of account.

1
E. Malemi: The Nigerian Constitutional Law (Lagos: Princeton Publishing Co., 2006) 446-458.
2
Official corruption and immunity by Femi Falana; This Day Newspaper July 19, 2016.
3
See A.A. Idowu: “Constitutional Immunity, State Actors and Governance” The Constitution, Vol. 7 No. 2 (2007)
86, 89-92.
4
Reconsidering Executive Immunity Under the Nigerian Constitution by G.O Arishe; Nigerian Current Law
Review 2007-2010, p. 280, 2010.
2. subsection (1) of this section applies to a person holding or required to perform the
functions of the office of the President or of the Governor of a Region, and in that
subsection “period of office” means, in relation to such a person, the period during which he
holds or is required to perform the functions of the office in question.

In subsequent constitutional provisions including the 1979, 1989 and the current 1999
constitutions, the immunity clause was included definitively. 5

The constitution of the federal republic of Nigeria, section 308 thus protects some group of
ruling elites namely, the president, vice-president, governors and deputy governors of states
from arrest, imprisonment, or civil and criminal proceedings during the period of their
tenure in office. This essentially connotes that, members of the executive arm of
government in Nigeria, as portrayed in many other states of the world, are relatively
insusceptible to persecution or retribution from all criminal and civil claims throughout their
tenure in office. Section 308 of the constitution of the federal republic of Nigeria provides
that6

1. notwithstanding anything to the contrary in this constitution, but subject to Subsection

(2) of this section.

a. No civil or criminal proceeding shall be instituted or continue against a person to whom

this section applies during his period of office;

b. A person to whom this section is applied 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 or issued;

d. Provided that in ascertaining whether any period of limitation has expired for the
purpose of any proceedings against a person whom this section is applied, no account
shall be taken of his period of office.

2. The provision of subsection (1) of this section shall not apply to a civil proceeding
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 the president, Governors 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 function of the office.

5
See section 276 of the 1979 Constitution, section 320 of the 1989 Constitution and section 308 of the 1999
Constitution which are all similar in wording.
6
1999 constitution of the federal republic of Nigeria
The crux of this section puts into perspective, not only the fact that executive officers are
immune from any form of civil or criminal proceedings, it also effectively annuls or at least
adjourns during their tenure in office, any standing case against them before they were
elected into their various offices, such cases include Col. Oluwole Rotimi Vs. Macregor
(1974) NSCC 542; Bola Tinubu Vs. I.M.B. Securities Ltd. (2001) 11 WRN 27; (2001) 16 NWLR
(PT 740) 670 and Media Technique Nig. Ltd. Vs. Lam Adesina (2004) 44 WRN 19. 7

However the immunity clause does not restrain the officers from suing other people (Chief
Victor Olabisi Onabanjo v. Concord Press of Nigeria [1981] 2 NCLR 399, Global Excellence
Communication Ltd. v. Duke [2007] 16 NWLR [pt. 1059] 22.). This section of the constitution
therefore questions the reliability of the rule of law by placing above the law, the
conglomerate of elites it intercedes their immunity. According to M. Mowoe, “it would
appear that such a decision is an unfair interpretation of the constitution and is rather
tantamount to reading into the constitution a provision not expressly stated and which the
drafters of the constitution may have intentionally excluded because of the conflict it would
naturally create”.8

7
Official corruption and immunity by Femi Falana; This Day Newspaper July 19, 2016.
8
M. Mowoe, Constitutional law in Nigeria (Lagos Malthouse Press Ltd 2008) p.165