A COMPARATIVE ANALYSIS OF CONSTITUTIONAL IMMUNITY CLAUSE IN NIGERIA AND SOUTH AFRICA

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CHAPTER ONE

1.0                         GENERAL INTRODUCTION

1.1 BACKGROUND TO THE STUDY

After several years of military rule, Nigeria has returned to a democratic rule since 29 May, 1999. However, the experience so far since Nigeria has returned to democratic rule shows that all has not been well with our democratic experience, especially as it affects the immunity of chief executives from judicial proceedings.

Nigeria being a commonwealth nation inherited the English common law and doctrine of sovereign immunity from Britain. Immunity is an antique concept which takes roots in the ancient feudal structure of England which later became a common law principle[1]. The royal and legal phraseology that the king can do no wrong (Rex non potest peccare) is of historical antiquity. Though, the doctrine as it is understood today is one of the vestiges and accoutrement of colonialism in this part of the continent. Under the doctrine, it is presumed that the king can do no wrong, he lacks legal capacity of doing wrong, and kings must not and was not allowed or entitled to do wrong.[2] Though, if the king did wrong, he just could not be sued as H. Street said:

…so the king,at the apex of the feudal pyramid and subject to the jurisdiction of

no other court was not suable.[3]

Thus, two fundamental legal principles of great antiquity-one procedural and the other substantive, accounted for sovereign immunity which made direct action or justification of certain claims against the crown impossible:

The feudal rule that no lord of the manor could be sued in his own court meant that the king being the great overlord of all and the peak of the English legal system, could not be suing his own court or in the court of any of his vassals. Added to this procedural difficulty wasprinciple of substantive law that ‘the king can do no wrong’ which meant that no act or omissionof the sovereign was open to impeachment or condemnation on the ground that it was wrongfulor tortuous.[4]

Subject or vassals with any claim against the king in the 13^th century presented them to the king informally, whereupon the king might refer them to his Court by endorsing it with mark ‘Fiat justitia’.[5] This was through a procedure known as Petition of Right introduced during the reign of Edward 1. Any subject prejudiced by a royal refusal to consider his petition was without remedy. Petition of Right was limited to recovery of land and proprietaryaction while other heads of action were left unremedied. Petition of Right could also not lie in torts; this is based on Brocton’s proposition, that ‘the king can do no wrong’.[6]

Commenting on this,Cockburn C.Jobserved[7] as follows:

…a petition of right in respect of a wrong in legal sense of the term shows no right to legal redress against the sovereign for the maxim that king can do no wrong applies to person as well as political wrongs….

Petition of right lasted till only the 14^th century. Since the 15^thcentury, petition of right had fallen into disuse due to procedural difficulties. It was superseded by the real actions, ‘traverse and monstrans de droits.’[8] Petition of right revived in 19^th century as ‘monstrans de troits’ was superseded and went into disuse. However, on the 13^th February 1947, Viscount Jowitt, introduced to the House of Lords a government sponsored crown proceedings bill which was endorsed into law on 13^th July,1947 and came into force on 1^st January 1948, this is otherwise known as Crown Proceeding Act(CPA)1947. This Act abolished the petition of right procedure and as well makes crown not only liable in contract but also in torts.Thus, the historical myth surrounding the crown was totally removed.

Coming back home, immunity in government is not strange even to our people in Southwest of Nigeria. Before the advent of colonization, in the 18^th and 19^th centuries, our kings governed us in our communities. These kings reigned and ruled absolutely and executively, as they have rights over life and death of their subjects. Hence, they are being described as ‘kabiyesi’, meaning no one dare query the acts and deeds of kings. In those days, they were known to commit all forms of criminal atrocities and diabolical acts, but no one dare query them because of their ‘divine rights’ and immunity in governance, even unto death.

These are the kind of powers and immunities which traditional rulers enjoy in the past but in this modern era, they have been deprived of such prerogatives and immunities and anyone caught in the despicable act either practicing directly or covertly will be prosecuted if found guilty, might even be given death sentences. An example is the Osun State monarch who is presently standing trial for alleged rape of a corps member.[9]

It is from this historical background (especially the colonization experience) thatwe have the immunity clause which protects the President,Governors and their deputies under section 308 of the 1999 Constitution. It must however be recalled that the 1999 Constitution was not the first to make provision for immunity of the President and the Governor in this country. The 1963 republican Constitution[10] made similar provisions. In the 1979 Constitution[11] also similar provision was made for immunity, even the still born 1989 Constitution had the immunity clause.[12] In fact,under the 1979 Constitution, in the case of Chief (Mrs.) Funmilayo Ransome Kuti v Attorney General of the Federation,[13] the Supreme Court dismissed the appeal filed by the plaintiff on the basis of the maxim ‘rex non potest precarre’ (the King can do no wrong).

However, this study were carried out to compare the practice of immunity clause in Nigeria and South Africa.

 1.2 STATEMENT OF THE PROBLEM

Immunity clause as enshrined under section 308 of the 1999 Constitution of the Federal Republic of Nigeria has generated protracted controversies for and against its inclusion in the rubrics of Nigerian constitutional laws and this is been considered as the major cause widespread of corruption by Nigerian leaders. It has been criticized as an enablement of high-level corruption and a colossal waste of the nation’s common wealth by those in whose hands it is entrusted, because it shields them from justice and promotes the culture of impunity. Since the onset of the fourth republic in 1999, no fewer than twenty-three former governors have been arrested or prosecuted for corruption. Of this number, only six have been sentenced to various terms of imprisonment within and outside Nigeria. This number, however, is abysmal in comparison to the 17 former governors facing different degrees of criminal charges in Nigerian courts and those still under investigation by the Economic and Financial Crimes Commission.[14] Indeed, the immunity clause has become an albatross to Nigeria’s democracy and other countries (such as South Africa) economic growth and development. This has led to various calls for removal of this clause from the Constitution to give room for better accountability and responsibility in governance, especially against the fact that other countries have slowly but steadily moved away from shielding their political representatives from criminal prosecution for corruption and misappropriation of public fund.[15] This study compares the practice of immunity clause in Nigeria and south Africa.

1.3 AIM AND OBJECTIVES OF THE STUDY

The main aim of this work is to carry out a comparative analysis of constitutional immunity clause practiced in Nigeria and South Africa. The study seeks to achieve the following objectives:

1. To examine the concept of immunity clause as it covers countries constitution.
2. To contribute to the contemporary legal problems on immunity of the chief executives that are presently unfolding in our democratic experience.

• To access information on how immunity clause is practice in Nigeria and South Africa.

1.4 SCOPE AND LIMITATIONS OF STUDY

The project work seeks to concentrate on the abuse of immunity clause by politicians in Nigeria. This project work will discuss more on executive immunity. The relevant laws of Nigeria particularly the present 1999 Constitution of the Federal Republic of Nigeria will be examined alongside with the 1979, 1989 and 1963 Constitutions of Nigeria, which will comparatively analysed with constitutions practice of immunity clause of south Afirca, so as to serve as a comparative study to the Nigerian experience.

1.5 SIGNIFICANCE OF THE STUDY

This study will serve as an avenue for providing the incumbent a free hand and mind to perform the duties and responsibilities of his office without distraction from litigation. The immunity is essentially for the protection of the dignity of the office and not for the individual office holder as such. This study will provide the reader as well as the student with the knowledge on how immunity clause is performed both in Nigeria and South Africa.

With this study, legal problems can best be solved by getting the problems discussed. If those concerned with law can come out and express their opinion on a legal problem, solution to that problem will not be farfetched. It is with this view in mind that this writer decides to embark on this study and it is hoped that by the end of this write up, the writer would have been able to give a useful suggestions as to how the problem of immunity of chief executives in Nigeria can best be tackled

1.6 RESEARCH METHODOLOGY

This work shall invoke the use of doctrinal research methodology. This is comprised of primary sources such as Constitution, Statutes and judicial authorities as well as secondary sources such as articles, journal, publications, legal framework both local and international, as well as the opinion of text writers and jurists. The primary sources of law to be consulted include, but not limited to; statutes like the Constitution of Nigeria 1979, 1989 and 1999. In the same vein, the work also made reference to primary sources of Nigerian and South Africa Constitution and secondary sources such Journals on immunity clause through which the modern scholars adopted in arriving at comparative analysis of the two countries.

1.7 SYNOPSIS OF CHAPTERS

The work is organized as follows: chapter one discuses the introductory part of the work,   chapter two presents the literature review of the study,  chapter three describes the critical examination of immunity clause under the Nigerian and South African constitution, chapter four discusses the comparative analysis of the immunity clauses in Nigeria and South Africa, chapter five summarizes the research outcomes and the recommendations.

[1] Malemi E, The Nigerian Constitutional Law(Princeton Publishing co. Lagos 2006) 446-458.

[2] Ibid

[3] Street H, Government Liability: A Comparative Study (Cambridge University Press New York, 1953) 42.

[4] Ewelukwa D.I.O, ‘Proceedings by and against the State in Nigeria’ (1973)11 Nigeria Bar Journal.10 at 11.

[5] This means: ‘Let Justice be done’.

[6] Taiwo E.A, ‘A Critical Appraisal of the Officers Protection Act’ (An unpublished L.L.M dissertation submitted to the Faculty of Law, Obafemi Awolowo University, Ile-Ife. March, 1998)16.

[7] Feather vReg (18656) Best& S,257 at 295-296.

[8] Feather vReg (18656) Best& S,257 at 295-296.

[9] Oba A. A, The Alowa of Ilowa before a Magistrate Court in Osun State; The Punch Newspaper, (Nigeria 8 April  2011).2.

[10] Section 161(1).

[11] Section 267(1)(a).

[12] Section 320

[13] (1985)6 S.C. 246.

[14] Akinpelu, Y. (2020). Orji Kalu Resumes at Senate after Release from Prison. Premium Times (June 09, 2020) Retrieved October 5, 2020, from https://www.premiumtimesng.com/news/topnews/396826-orji-kalu- resumes-at-senate-after-release-from-prison-.html

[15] Austin, J. (1995). Austin: The Province of Jurisprudence Determined. In W. Rumble (Ed.), Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9780511521546