THE IMMUNITY CLAUSE UNDER THE 1999 CONSTITUTION AND THE ANTI-CORRUPTION CRUSADE - A CASE OF STRANGE BED-FELLOWS? Dr. S.

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1 THE IMMUNITY CLAUSE UNDER THE 1999 CONSTITUTION AND THE ANTI-CORRUPTION CRUSADE - A CASE OF STRANGE BED-FELLOWS? By Dr. S. Gozie Ogbodo Introduction No country can fully maximize its potentials if corruption is rampant to its polity. It becomes more troubling if the leadership of the country, be it military or political, is the chief culprit. Nigeria, unfortunately, is a good example. The country has earned the notoriety of being one of the world s most corrupt countries. The citizens think so, while the International community amplifies the notoriety. 1 As a result of corruption, Nigeria has failed to fully maximize its potentials. Although the country has earned billions of dollars from oil revenue since oil was discovered 2 in the Niger Delta 3 region of the country, yet the country is. LL.B. (Unizik), LL.M. (G.G.U., USA), S.J.D. (G.G.U. USA), B.L. Formerly, Adjunct Professor, Golden Gate University, San Francisco, California. gozieogbodo@yahoo.com. 1. Transparency International has consistently ranked Nigeria as one of the most corrupt countries in the world. In 2001, Nigeria was ranked as the No. 1 corrupt country in the world. In 2004, it was ranked as No. 3. See Inegbedion, N.A.: Corruption and Anti-Corruption Legislations in Nigeria: A Critique (2004) 7 UBIJ 139, p See also Ekpu, A.O.O.: Curbing Corruption in Nigeria. The Role of the Code of Conduct Bureau, BJPL (2004) Vol. 2 No. 1, p Oil was discovered in commercial quantities in 1956 in Oloibiri, which is currently in Bayelsa State of Nigeria. 3. The Niger Delta area is estimated to have a population of over 25 million people from nine States and 186 Local Government Councils. The area stretches about 4.35kilometres (270 miles) along the Atlantic Coast. See Atakpu, Leo: Resource-Based Conflicts: Challenges of Oil Extraction in

2 130 Journal of Law and Development still ranked as one of the most under-developed countries in the world. Unlike other countries which have earned huge revenue from their oil wells, 4 Nigeria has squandered most of their earnings. Since the country became independent in 1960, the country has suffered greatly as a result of the corrupt practices of the military and political leadership. Consequently, the eradication of official corruption has formed the main platform for every new government in the country since the first military coup in According to Major Chukwuma Nzeogwu, one of the principal actors in the first Nigerian coup, corruption eradication was one of the motivations for the coup. 5 The current President of the country, Umaru Musa Yar Adua, has consistently avowed his administration s commitment to eradicating or curbing the menace of official corruption. 6 A renowned Nigerian author, Professor Chinua Achebe, squarely located the source of corruption in the country in the leadership class. Accordingly, he stated: 7 The trouble with Nigeria is simply and squarely a failure of leadership The Nigerian problem is the unwillingness or inability of its Nigeria, being a paper delivered at a conference hosted by the German EU Council Presidency in March For example, Saudi Arabia, Venezuela, Malaysia, Libya, etc. 5. See Ademoyega, A.: Why We Struck: The Story of the First Nigerian Coup, Ibadan, Evans publishers, 1981, pgs 87-88, cited by Okogbule, N.S.: The Redulation of Economic Crimes in Nigeria: Old Problem, New Challenges and Responses (2006) 9 (1) UBLJ, p In his inauguration speech in 2007, he vowed thus, We are determined to intensify the war against corruption, more so because corruption is itself central to the spread of poverty. See also his recent interview in the Guardian of Monday April 27, 2009, where he reiterated his pledge to deal with corruption. 7. See Achebe, C.: The Trouble with Nigeria, Fourth Dimension Publishers, Enugu, 1985, p. 1.

3 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 131 leaders to rise to the responsibility, to the challenge of personal example which are the hallmarks of true leadership. The current Constitution 8 of Nigeria guarantees immunity 9 to the highest political leaders of the country on the public policy premise that it will ensure their efficiency in the execution of their political mandate while in office. These officials include the President, the Vice President, the Governors and the Deputy Governors (hereinafter called the immunity clause ). 10 Since the jurisprudential searchlight of this paper will be focused upon the effect, if any, that the immunity clause may have on Nigeria s anti-corruption crusade, suffice it to say that our focus will be limited to the corrupt practices of the members of the immunity clause. But before we continue, it is appropriate to acknowledge, ab initio, that the immunity clause is not the only group of political leaders in the country who engage in corrupt practices. Indeed, corruption is so rampant that it has pervaded many facets of the social fabric. Part II will cover some conceptual issue/scope of corruption critical for a better understanding of this work. Part III analyzes the provisions of section 308 of the Constitution with a view to understanding the immunity clause and the extent of the immunity conferred on the clause. Some judicial interpretations based on the immunity clause will consequentially be reviewed. Part IV will cover some anti-corruption statutes in the country viz-a-viz the immunity clause. Part V will proffer recommendations and suggestions on how best to strike the delicate balance of 8. The Constitution of the Federal Republic of Nigeria, See section 308, ibid. 10. Section 308 (3), ibid.

4 132 Journal of Law and Development protecting the immunity clause from distractive legal processes whilst in office and at the same time ensuring that the immunity clause does not serve as incentive for corrupt practices. Conceptual/Definitional Issues Some of the concepts we will attempt to clarify will include immunity, immunity class and corruption. Immunity Immunity has been defined as follows: 11 Exemption, as from serving in an office, or performing duties which the law generally requires other citizens to perform e.g. exemption from paying taxes. Freedom or exemption from penalty, burden or duty. Historically, immunity from prosecution was developed to encourage prosecution witnesses to testify without fear of self-incrimination. In the process, two forms of immunity protection were developed the use 12 or the transactional 13 form. Under the 1999 Constitution, 14 however, the immunity conferred on the immunity clause under section 308 may be characterizing as an executive form of immunity. From a literal interpretation point of view, it does not permit of any kind of qualifications or exceptions. It must be noted that 11. Black s Law Dictionary, 6th edition, West Publishing Co, Use immunity prohibits witness compelled testimony and its fruits from being used in any manner in connection with criminal prosecution of the witness. Ibid. 13. Transactional immunity affords immunity to the witness from prosecution for offense to which his compelled testimony relates. See People v. Henson, Colo. App., 705 p. 2d 996. Ibid. 14. Note 5, supra.

5 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 133 immunity is a creation of the law specifically affording a clause a privilege under the law e.g. judicial immunity, legislative immunity, sovereign immunity, etc. Immunity Class The privilege created by law exempting a class from penalty, burden or duty is specifically targeted for the benefit and enjoyment of the specified class. 15 It cannot be claimed or asserted by anyone outside the immunity class. Further, if wrongfully claimed or asserted, the court will not accord it judicial protection. In the instant case, the law by virtue of the provisions of section 308 (3) clearly and unequivocally identified the class as consisting only a person holding the office of President or Vice President, Governor or Deputy Governor. Consequently, any other public official not belonging to the immunity class under the section, cannot claim or be accorded the immunity. Corruption Corruption has been defined as follows: 16 An act done with an intent to give some advantage inconsistent with official duty and the rights of others. The act of an official or fiduciary person who unlawfully and wrongly uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others. From the foregoing, any act of a public official belonging to the immunity class in his/her official capacity, which 15. See note 7, supra. 16. See note 8, supra.

6 134 Journal of Law and Development confers some benefit to the member or to another person, contrary to duty and the rights of others, qualifies as a corrupt act. Such acts should be discouraged as they are inimical to the general welfare of the country. Corruption, also, has been posited as the misuse of public office for private gain. It encompasses abuses by government officials such as bribery, extortion, influence peddling and fraud. 17 It is common knowledge that corruption thrives in an environment where the corrupt practices are undertaken by the political leadership at the highest levels of government. In such a situation, two major fallouts are noted. First, the corrupt practices of the leaders pollute the morality of the citizens as the latter emulate the negative corrupt practices of the former. Secondly, and most detrimental to the development of the country, is the reluctance of the political leadership which forms the major culprits to aggressively and whole-heartedly prosecute the laws on corruption where they exist. The latter fallout can be appreciated by the fact that a thief does not do a good job when he doubles as a security guard. Immunity Clause under the Constitution The immunity clause under the Nigerian Constitution 18 contained in section 308(1)(a-c) which enacts as follows: is no civil or criminal proceedings shall be instituted or continued against a person to whom the section applies during his period in office; and a person to whom the section applies 17. See Inegbedion, N.A.: note 1, supra. 18. See note 5, supra.

7 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 135 shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and no process of any court requiring or compelling the appearance of a person to whom the section applies, shall be applied for or issued. Further, the said section explicitly identifies the immunity class by stating, inter alia, that it only applies to a person holding the office of President or Vice President, Governor or Deputy Governor. 19 According to Prince Tony Momoh 20, six legal permutations arise from the foregoing immunity clause as follows: No civil or criminal proceeding can be instituted against any member of the class during his/her period of office; 2. If such action had been instituted (before he/she assumed office), it will stop or cease for the duration of that period of office; 3. No member of the class can be arrested or imprisoned by any court order during his/her period of office; 4. No court can order his/her appearance to answer to any matter during the said period in office; 5. If such application is made to compel the appearance of a member of the class, such application shall be denied; 19. See note 7, supra. 20. Former Minister of Information of the Federal Government of Nigeria. 21. See Non-justiciability of Chapter Two of the Constitution and Implications for the Immunity Clause being a paper presented y Prince Tony Momoh at the Lawyers in the Media Forum, Nigeria Bar Association (NBA) Conference in Abuja. Reported in The National Newspaper of Tuesday, October 14, 2008.

8 136 Journal of Law and Development 6. The period in office shall not adversely affect any legal matter that would, otherwise, be time barred. In other words, the period of office shall not make the case statute barred. From the foregoing interpretations of the immunity clause, it becomes clear that a member of the immunity class can be out of the reach of the legendary long hands of the law as long as he/she remains in office. Further, and more troubling, is the fact that the immunity covers all kinds and manner of civil and criminal infractions of the law. 22 The extensiveness of the immunity clause unwittingly brings to question the public policy end for which the clause was introduced. The question, therefore, is whether the public policy goal of the clause to shield members of the class from distractive legal proceedings in the lawful execution of their constitutional functions extends to a protection of the class from unlawful conducts while in office? In other words, did the framers of the constitutional shield embodied in the immunity clause intend that members of the class can, and should, use the clause as a sword in office? Here lies the heart and soul of this work. In answer to the question posed, it is my submission that on both the grounds of law and public policy, the framers of the Constitution did not intend so. Since their constitutional job specifications do not include unlawful or illegal activities, they should not be shielded by a constitutional provision intended solely to enhance lawful, legal and good governance of their people and their resources. Although there is paucity of judicial pronouncements on the immunity clause, from the available few, the Supreme Court has interpreted the clause as not permitting any exceptions and thus absolute. In Bola Tinubu v. I.M.B. 22. See section 308 (1) (a) and (b).

9 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 137 Securities Plc, Iguh, 23 J.S.C. (as he then was), while delivering the leading judgment said: 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 such office. No question of waiver of the relevant immunity by the incumbent of the offices concerned or, indeed, by the courts may therefore arise. It is worthy of notation that in the Bola Tinubu case, the counsel to the defendant/appellant was of the opinion that his client, notwithstanding his then status as belonging to the immunity class, was willing to waive his immunity. 24 Learned counsel also canvassed in the alternative that section 308 (1) (a) of the Constitution did not expressly deny a member of the class the legal right to sue, while in office, to enforce his/her personal right. 25 In the instant case, the Supreme Court referenced the case of Colonel Olu Rotimi and Ors v. Macgregor. 26 Consequently, the court had no qualms in following the Rotimi precedence when it stated thus: It is pertinent to point out that the said provisions of section 308 (1) (a) of the 23. (2001) 16 NWLR (Pt 740) Ibid. 25. Ibid. 26. (1974) 11 SC 123.

10 138 Journal of Law and Development Constitution of the Federal Republic of Nigeria 1999, in issue in the present case are clearly impari material with those of section 161 (1) (c) of the 1963 Constitution. From the six legal permutations derivable from the immunity clause, it is quite clear that the Bola Tinubu case, and indeed the Olu Rotimi case, were only on point with regard to the second permutation dealing with an already pending action before one of the parties joined the immunity class. Regardless, the Supreme Court has held that the immunity granted by section 308 (1) (a) of the Constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal 27 It is quite understandable for members of the immunity class to enjoy the immunity in the course of carrying out their legitimate and constitutional mandate while in office. However, again to borrow the words of Prince Tony Momoh when he queried: 28 So what can you do when he (she) breaches the laws he (she) swore to uphold, does evil to everyone instead of the good he (she) promised to do to all manner of people; undermines by his (her) every act the provisions of the Constitution and the laws of the land he (she) said he (she) will protect and uphold? What can be done, I may add, if a member of the class publicly commits murder? Or brazenly loots the entire treasury of the government while in office? Should the response be nothing in the light of section 308 (1) (a) or are 27. Note 19, supra. 28. Note 17, supra.

11 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 139 there any legal remedies available in the interim? As part of the search for remedies, we shall examine some anticorruption laws in the country with a view to determining if they can be applicable to the immunity class. Some Anti-corruption Statutes There are currently many anti-corruption laws in the country. Some are national laws while others are international laws. The national laws include: the Criminal Code Act, 29 the Penal Code, 30 as well as more recent ones like the Economic and Financial Crimes Commission (Establishment) Act (EFCC), 31 the Corrupt Practices and Other Related Offences Act (ICPC), 32 the Money Laundering (Prohibition) Act 33 and the Advance Fee Fraud and Other Fraud Related Offences Act. 34 The international laws include: the African Union Convention Prevention and Combating Corruption 35 and the United Nations Convention Against Corruption. 36 The principal goal of all these laws is to combat the dangerous and negative impact of corruption on the polity. In light of the limited space that this work commands, it will not be possible to analyze the provisions of all the anticorruption statutes in the country. However, only the provisions of the Economic and Financial Crimes Commission (EFCC) Act 37 and the Corrupt Practices and Other Related Offenses (ICPC) Act and the Corrupt Practices 29. Cap C. 38, Laws of the Federation of Nigeria, Cap 89, Laws of Northern Nigeria, Act No. 1 of 2004, which repealed Act No. 5 of Cap C. 31, Laws of the Federation, Cap E. 1, Laws of the Federation of Nigeria, Cap A6 Laws of the Federation of Nigeria Adopted by the 2nd Ordinary Session of the Assembly of the Union, held in Maputo, 11 July Adopted by the United Nations and effective from December 5, Note 27, supra.

12 140 Journal of Law and Development and Other Related Offences (ICPC) Act 38 will be analyzed with a view to ascertaining their applicability, if any, to the immunity class under section 308 (1) (a) of the Constitution. The EFCC Act The EFCC Act, it has been argued 39 was enacted in apparent compliance with the directive in section 15(5) of the 1999 Constitution that the State shall abolish all corrupt practices and abuse of power. Whether the Nigerian State has succeeded in the abolition of all corrupt practices and abuse of power by the establishment of the Commission far exceeds the scope of this work. Suffice it to say that the mere establishment of the Commission underscored the commitment of President Obasanjo s administration 40 to pay more than lip service to its avowed commitment 41 to tackle the corruption challenge. It is worthy of notation that the Commission is endowed with wide powers inclusive of acting as the coordinating agency for the enforcement of the provisions of the following statutes; 42 (a) the Money Launching Act 2004; (b) the Advance Fee Fraud and Other Related Offences Act 1995; (c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, as amended; (d) the Bank and Other Financial Institution Act, as amended; (e) Miscellaneous Offences Act, and 38. Note 28, supra 39. See Okogbule, N. S., note 5, supra. 40. President Olusegun Obasanjo s administration was inaugurated on May 29, 1999 and lasted for eight years. 41. During his inauguration speech, he promised that his administration will seriously combat the menace of corruption in the country. 42. See section 7(2)(a-f) of the EFCC Act.

13 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 141 (f) Any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code. Under section 40 of the EFCC Act, 43 economic crime is defined as the non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organized manner thereby violating existing regulation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, bribery, looting and any form of corrupt malpractices, illegal arm deal, smuggling, human trafficking and child labor, oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counter-feiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, etc. From the foregoing definition, it is obvious that the scope of the definition of economic crime, under the Act, is so wide and encompassing that an offender can be found in almost any sphere of human activity in the country. 44 The power of the Commission to investigate any crime is contained in section 6 of the Act. 45 The investigative power can be invoked to determine whether any person, corporate body or organization has committed an offence under the Act. 46 The Commission can also investigate the properties of any person if it reasonably believes that the properties cannot 43. Note 27, supra. 44. The scope of economic crime ranges from fraud, narcotic drug trafficking, bribery, illegal arm dealing, smuggling, human trafficking, child labour, oil bunkering, tax evasion, foreign exchange malpractices, theft of intellectual property and piracy, open market abuse to environmental crime like dumping of toxic wastes. 45. Note 27, supra. 46. Ibid.

14 142 Journal of Law and Development be justified by the suspect s income, 47 of utmost importance to this work is the power of the Commission to arrest and prosecute. In exercise of those powers, can the Commission arrest and prosecute a member of the immunity class? Sections 12(1)(b) and 12(2) (a), respectively, contain the powers of arrest and prosecution by the Commission. 48 While the General Assets Investigation Unit 49 of the Commission has the power to arrest, the Legal and Prosecution Unit 50 is vested with the prosecutorial power. It is pertinent to note that both the Federal High Court and the High Court of a State can exercise jurisdiction under the Act. 51 Under the supremacy clause of the Constitution, the latter supercedes any other law that contradicts the provisions of the Constitution. 52 Thus, the EFCC Act, being an Act of the National Assembly is superceded by the Constitutional provisions under section 308 (1) (a). The powers of arrest and prosecution under the EFCC Act are, therefore, inapplicable to the members of the immunity class. 53 It does appear, though, that the Commission can commence investigation against a member of the class while the member is still in office. In fact, the Commission had recently carried out investigations of some State Governors and their Deputies. Such investigation, in order not to contravene the provisions of section 308 (1) (a), must not necessitate the compulsion of the member s appearance to answer to any matter subject of the investigation Ibid. 48. See sections 12 (1) (b) and 12 (2) (a) of the EFCC Act, Section 12 (1) of the EFCC Act. 50. Section 12 (2) of the EFCC Act. 51. Section 18 (1) of the EFCC Act. 52. Section 1 (3) of the 1999 Constitution. 53. See section 308 (1) of the 1999 Constitution. See also Bola Tinubu v. I.M.B. Securities Plc, supra. 54. Ibid.

15 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 143 The ICPC Act Under the Corrupt Practices and Other Related Offences Act, the powers of investigation under section 27 can be invoked if the Commission received a report or information from the public alleging credibly that a public official has engaged in corrupt practices. Based upon such a report, the Commission can invite the public official by summon to appear before it to be examined with respect to the allegation. 55 Pursuant to the investigation, the investigating officer may exercise all the powers of investigation conferred by section 27 (3) of the Act. 56 Section 35 empowers the Commission to arrest and detain a person issued a summon to appear who has refused to honour the invitation. 57 In Attorney-General of Ondo State v. Attorney-General of the Federation, 58 the Supreme Court held that section 35 of the Act was unconstitutional. However, the Supreme Court used the occasion to lend its judicial weight to the Commission and its mission when Ogwuegbu JSC (as he then was) admonished forcefully that, Corrupt practices and abuse of power can, if not checked, threaten the peace, order and good government of the Federation or any part thereof. In order to conduct a search of any premises used for the Commission of an offence under the Act, the Commission must first obtain a search warrant from a Judge or Magistrate. 59 If the search involves the search of the persons in the premises, the search must be conducted by an official who is of the same gender as the person searched. 60 If an officer of the Commission, in the course of his investigation, 55. See section 29 of the ICPC Act, Note 28, supra. 57. Ibid. 58. (2002) 9 NLWR (Pt 772) Section 36 (1) and (2) of the ICPC Act, Section 36 (3) ibid.

16 144 Journal of Law and Development reasonably believes that any property is a product of an offence, he may seize the property. 61 Such seized property may be forfeited to the government in either of two processes. 62 Under section 47, the property may be forfeited pursuant to a successful prosecution of the offender. 63 While under section, 48, the property may be forfeited absent of a prosecution. 64 Prosecution of offences under the Act is empowered by section 61. Such prosecution is deemed to be carried out with the consent of the Attorney-General of the Federation. 65 Section 26 of the Act mandates that such prosecution and judgment must be concluded within ninety working days of its commencement. 66 With respect to section 26, the Supreme Court held it unconstitutional as being ultra vires the powers of the National Assembly to make laws since it dealt with a judicial deadline which is within the exclusively purview of the judiciary. 67 Unlike the EFCC Act, the ICPC Act vests jurisdiction to try offences under the Act in the High Court of the Federation Capital Territory or the State High Court. 68 The Commission, to the best of my knowledge, has not yet arrested or prosecuted any member of the immunity class despite all the allegations leveled against them. It does not appear that they will under the present circumstances. 69 Again, for the same reason that the Constitution is superior to the ICPC Act, the provisions of the latter can not contradict 61. Section 37 (1), ibid. 62. Section sections 47 and 48 of the ICPC Act, Section 47, ibid. 64. Section 48, ibid. 65. Section 61 (1), ibid. 66. Section 26, ibid. 67. See Olafisoye v. Federal Republic of Nigeria. 68. Section 61 (3), ibid. 69. Despite the reported cases of fraud and corrupt practices involving members of the immunity class, the Commission has not, to the best of my knowledge, arrested any member of the class.

17 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 145 or contravene the provisions of the former. 70 While the Commission can commence the investigation of a member of immunity class while in office, such exercise cannot involve the arrest, prosecution and imprisonment of the member. 71 Recommendations and Suggestions There is no doubt that there is good reason to protect members of the immunity class from distractive legal proceedings during the pendency of their tenure in office. 72 It justifies the reason behind the public policy of immunizing them. 73 However, in light of the level of corruption involving members of the class, one wonders if the immunity has unintentionally served as incentive for corrupt practices. After all, every member of the class is cognizant of the fact that while in office, he/she cannot be summoned, arrested or imprisoned for any corrupt practice. 74 In an attempt to strike this delicate legal balance, the following recommendations are proffered: 1. The immunity under section 308 (1) (a) of the Constitution should not be absolute. 75 The National Assembly should use the opportunity of the constitutional review exercise currently undertaken by the joint House Committee to review the 70. Note 42, supra. 71. Note 43, supra. 72. The enormous responsibilities inherent in the exercise of their constitutional mandates warrant that members of the immunity class be immunized from frivolous legal proceedings. Such legal proceedings, if unchecked, could cause grave disservice to the public interest which the members of the immunity class have sworn to protect and preserve. 73. Ibid. 74. Note 43, supra. 75. Ibid. The immunity should be subject to exception(s).

18 146 Journal of Law and Development section. 76 The immunity should be subject to the review of a Federal High Court Judge in the case of the State Governors and Deputy Governors. 77 While in the case of the President and Vice President, their immunity should be reviewable by the Supreme Court The immunity must be subject to some specified exceptions like murder, insanity, flagrant looting of the treasury, etc. Since those kinds of conduct while in office were not, ipso facto, intended to be protected by the framers of the Constitution, 79 they should, therefore, not come under the immunity umbrella. 3. The immunity should be amenable to waiver. It should not be foisted upon an unwilling member of the immunity class, particularly in cases of a civil nature and such as the office holder intends to pursue by waiving the immunity Notwithstanding the provisions of section 308 (1) (a), it has been argued 81 very convincingly that the members of the immunity class can be tamed by another constitutional provision the Code of 76. The National Assembly, comprising both the Senate and House of Representatives, recently set up a joint panel to review the 1999 Constitution. 77. This will insulate the review exercise from undue pressure since the Federal High Courts serve their respective jurisdictional regions and not a specific State. 78. Since the Supreme Court is the highest court in the country, it is appropriate that such a critical issue affecting the President and the Vice President be reviewed by it. 79. Note 5, supra. 80. See Bola Tinubu, supra, where the counsel to the defendant/appellant was willing to waive the immunity of his client notwithstanding his membership of the immunity class at the time. 81. Note 16, supra.

19 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 147 Conduct Bureau and the Code of Conduct Tribunal. 82 The Code of Conduct Bureau was created by section 153 of the Constitution. 83 Under sections 172 and 209 of the Constitution, 84 public officers which include members of the immunity class, are constitutionally mandated to observe and conform to the Code of Conduct. Consequently, they swear in their Oath of Office to abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria. Although the Tribunal proceedings are judicial in nature since the tribunal can impose a range of punishments 85 to an accused public officer (which includes a member of the immunity class), it is submitted that section 308 (1) (a) does not bar such a proceeding. 86 In addition to the Code sanctions, other collateral sanctions for a breach and conviction under the Code, it has been submitted, 87 include the disqualification for life from contesting election in the country. 88 It also includes the possibility of losing the rights to pension benefits 89 as well as the lifetime stigma of such conviction since the constitutional provisions on prerogative 82. See the Fifth Schedule (section 18) of the 1999 Constitution. See also the Code of Conduct Bureau and Tribunal Act, Cap C15, Laws of the Federation of Nigeria, Note 5, supra. 84. Ibid. 85. Such punishments may include loss of office, disqualification from holding any public office for not more than 10 years, seizure or forfeiture of the property. These are Code sanctions. 86. Note 17, supra. 87. See Ekpu, A.O.O.: note 1 supra. 88. Ibid. See sections 66(1)(d), 107(1)(d), 137(1)(e), 182(1)(e) of the 1999 Constitution. 89. Ibid. See sections 173 (2) and 210 (2) of the 1999 Constitution.

20 148 Journal of Law and Development of mercy are inapplicable to such a conviction. 90 The supremacy clause of section 1 (3) of the Constitution is also inapplicable to a sister constitutional provision. 91 The foregoing are critical recommendations in order to ensure that the immunity conferred by section 308 (1) (a) of the Constitution serves the purpose for which it was created. The recommendations will also prevent the unintended abuse by the members of the class while in office. Such measures are not only desirable for the effective crusade against corruption but will be in consonance with the practice in model democracies of the world 92 and evidence the country s commitment as a member of the international community. 93 The fact that the Nigerian Constitutions 94 have consistently provided for absolute immunity and the Supreme Court has consistently maintained its absoluteness 95 should not discourage us from progressively canvassing for improvements. Lord Denning encouraged us to keep trying when he stated as follows: If we never do anything that has been done before (because it is forbidden), we shall never get anywhere. The law will stand whilst the rest 90. Ibid. Paragraph 18 (7) of the Code of Conduct for Public Officers, Fifth Schedule, Part 1, of the 1999 Constitution. 91. Ibid. 92. A good example is the recently reported case of the arrest of the Governor of the State of Illinois (Mr. Blagovich) in the United States of America for corruption. 93. Nigeria is a signatory to the African Union Convention on Prevention and Combating Corruption (Adopted 12 July 2003) as well as the United Nations Convention Against Corruption. 94. See the provisions of the 1963 Constitution (section 161 (1) (c) which are impair material with the provisions of the 1999 Constitution (section 308 (1) (a). 95. See the cases of Colonel Olu Rotimi, supra, and Bola Tinubu, supra, where the Nigerian Supreme Court maintained the absoluteness of the immunity clause.

21 The Immunity Clause Under the 1999 Constitution and the Anti-corruption Crusade - A Case of Strange Bed-fellows? 149 of the world goes on: and that will be bad for both.