[The Legislative Blog]: Let’s talk about this removal of immunity for a minute

The Senate has reportedly started a much awaited process of amending the Constitutional provision of the Consttitution that gives the President, Vice-President, governors and deputy governors immunity against court actions while they remain in office.

Senator Ovie Omo-Agege, lawyer and Senator representing the Delta-Central district, proposed the bill which has been forwarded to the Senate Committee on Constitution amendment chaired by the Deputy Senate President, Ike Ekweremadu.

Section 308 of the Constitution, the affection section under review, has been a hot point for years now and many Nigerians habve canvassed for its removal while others have argued for an amendment which will restrict the scope of the section.

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.

Hence, while a civil action may be instituted againt the office of the President, Vice-President, Governor or Deputy Governor or against such executive office holder in connection to his or her official duties, no other court processes or actions may be instituted against them – not civil nor criminal.

Those who canvass for its removal have argued that although the section does not guarantee life-long immunity, the circumstances in Nigeria are such that it is almost imposaible to prosecute a former executive office holder as they have enough room while in office to remove all traces of the civil wrong/criminal act.

Senator Omo-Agege’s concerns about the section appear partial. He’s reported to have said that “in the U.S, the President and the Vice President as well as the Governors and their deputies are only immune from civil actions arising from their official actions. They are not entitled to immunity from litigation for actions not germane to their work. For example a president or governor who buys a car for a child and refuses to pay can be taken to court while in office.

His concerns mirror those of the people who have argued for the partial removal/amendment of the Section.

Senator Omo-Agege’s goal with his bill is to ensure that these office holders will be more careful with handling the nation’s resources.

The justification for the section lies in the fact that executive office holders will work better rest assured that no such legal actions can interrupt their work in office. But as exemplified by Senator Omo-Agege’s reference to the United States, executive office holders in that part of the worls appear to have found a way to concentrate better on their work in office even with the lack of immunity from legal actions as long as they do not affect their work in connection to the offices they hold.
Here, we imagine that it is high time we finally really consider the removal of the section. Our governors and Presidents already seem to have a difficult time concentrating on the mandate we give them every electoral cycle and it might actually be beneficial to try another tactic – leave the possibility of legal actions looming over their heads so that they can sit tight and know that we take the offices we entrust them with seriously.
A good suggestion in the amendment process will be to set up a different body, a tribunal with quasi-judicial functions which will consider if there really is a prima-facie case against the office holder that will necessitate summoning the latter; thereby disturbing his of her official functions (because the fact is our courts are not fully prepared for the frivolous actions and cross-actions that will then be flying around).
We also suggest that once a prima-facie case is established, the tribunal sends the case forth to the courts with a recommendation that the process (and any subsequent appeals) be fast-tracked and the matters be resolved within a certain number of weeks so as to truly protect the proper functioning of such executive offices despite the legal actions – the way that the Election Petition Tribunals now work to ensure such actions are resolved speedily.

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