In this concluding part, Vitus Nnamaka Okpara, a Port Harcourt-based legal practitioner and public commentator x-rays practical application of the rule of law in Nigeria and why immunity clause should be retained in our Constitution.
(a) Equality before the Law:
This generally means the equal subjection of all classes of persons to the ordinary law of the land. The essence of this aspect of the rule of law is well captured in the provisions of s. 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria, which provides inter alia that judicial powers shall extend to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any person as to the civil rights and obligations of that person.
The purport of this provision (which was first introduced by the 1979 Constitution) is to abrogate the doctrine of state immunity, which hitherto applied in Nigeria by virtue of the received English law as a common law doctrine. The constitutional provision also eliminates the application of s. 3 of the Petition of Rights Act (Cap. 149, L.F.N. 1958 as amended in 1964), which required that before an action could be brought in tort against the State, the consent of the Attorney General must be obtained.
In Chief Dr. (Mrs.) Olufunmilayo Ransome Kuti & 3 Ors. v. Attorney General of the Federation & Ors. (1985) 2 NWLR (pt. 6) 211, the Supreme Court, held that s. 6(6)(b) of the 1979 Constitution, which vests judicial power of the State in the courts has removed and abolished the Common Law doctrine of State immunity from tortuous liability in Nigeria. However, the prvisions of that section were held inapplicable in that case the cause of action therein arose in 1977, before the coming into force of the 1979 Constitution.
It may well be said that the afore-mentioned rules/provisions of the law relating to state immunity by their very nature negated the operation of the rule of law in Nigeria when they were in operation. However, by the community application of ss. 6(6)(b), 36 and 270 of the 1999 Constitution, Dicey's second meaning of the rule of law appears to have been given its full expression. Thus in Alade Shitta-Bey v. Federal Public Service Commission (1980) 1 S.C. 40, the Supreme Court (per Idigbe, J.S.C.) held that public servants in Nigeria no longer held their appointments at the pleasure of the State. The State as an employer must have regard to the Civil Service Rules when exercising any disciplinary action against its employees. (See also per Oputa, J.S.C. in Military Governor of Lagos State & Ors. v. Chukwuemeka Odumegwu Ojukwu  A.N.L.R. 233, 259.
As has earlier been noted, democracy does not function on the basis of the tyranny of the majority, but is designed to accommodate the interest of all and sundry. Equality of the law thus pictures democracy in this sense and even though majority rules; every individual is accorded the opportunity to express himself. In the words of Dworkin, ". . . true democracy is not just statistical democracy, in which anything a majority or plurality wants is legitimate for that reason, but communal democracy, in which majority decision is legitimate only when it is a majority decision within a community of equals. That means not only that every one must be allowed to participate in politics as an equal through the vote and through freedom of speech and protest, but that political decisions must treat every one with equal concern and respect, (that each individual person must be guaranteed fundamental civil and political rights no combination of other citizens can take away, no matter how numerous they are or how much they despise his or her race or morals or way of life." (See Roland Dworkin, A Bill of Rights for Britain, (1990), cited by Musdapher, J.S.C. in Amaechi v. I.N.E.C. (supra) at pp. 339 - 40).
No doubt, the rule of law according to Dicey, presupposes equality before the law or the equal subjection of all classes of persons to the ordinary law of the land administered by the ordinary courts. The common clichÈ is that "the law is no respecter of person." Thus, the rule excludes the idea of any exemption of the government or any of its officials from the duty of the obedience to the law, which governs other citizens, or from the jurisdiction of the ordinary tribunals. Having said that, it becomes quite pertinent to note that much as the rule may seem absolute in nature, it is by no means absolute in operation.
The Limits Of The Equality Rule
Even Dicey himself admitted that there ought to be some modifications or qualifications in view of the fact that some statutes or Acts of Parliament had given judicial or quasi-judicial powers to executive authorities, which are not part of the regular Courts. In this regard, he made reference to the Finance Act of 1910, and the Trade Disputes Act, 1906 (applicable in the UK), which exempted Trade Unions from liabilities for wrongs committed by their officials.
Besides, there are various other shapes and sizes of immunity granted to certain classes of persons under our laws. Such immunity may be total or partial, but whatever the nature, they certainly impinge on the strict application of the doctrine of equality before the law. Nevertheless, they are necessary on grounds of public policy. See for instance, the Public Officers Protection Act (Cap. P41 Laws of the Federation of Nigeria, 2004) and similar enactments in the laws of the various States of the Federation. Under these laws, a limitation period is prescribed within which a wrongful act or omission perpetrated by a public officer may be challenged by an aggrieved person. (On this, see Ekeogu v. Aliri (1991) 3 NWLR (pt. 179) 259); see also Obiefuna v. Okoye  A.N.L.R. 89. Cf. Ekemode v. Alausa  A.N.L.R. 143. On who is a public officer, see Eze v. Okechukwu (2002) 18 NWLR (pt. 799) 348).
Apart from the immunity granted to public officers, there is also the customary international law principle of diplomatic immunity, which covers members of the diplomatic corps in any given country, as they are presumed to represent their sovereigns in the country of their mission. This principle is statutorily recognized in Nigeria by the Diplomatic Immunities and Privileges Act (Cap. D9, Laws of the Federation of Nigeria, 2004. See Noah v. His Excellency, The British High Commissioner to Nigeria (1980) 1 All NLR 208. See also African Re Corp. v. J.D.P. Construction (Nig.) Ltd. (2007) 11 N.W.L.R. (pt. 1045) 224; Dickson v. Del Solar  1 KB 376.
There is also judicial immunity, which covers judicial officers from actions arising from the exercise of theirs judicial powers. In Egbe v. Adefarasin, (1987) 1 NWLR (pt.47) 1, the Supreme Court held that at common law, persons exercising judicial functions are immune from all civil liability whatsoever for anything done in their judicial capacity. Indeed this rule has now been statutorily enacted in Lagos State. Thus, by virtue of s. 88 (1) of the High Court Law, Cap. 60, Laws of Lagos State, 1994,
"No judge shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not within the limit of his jurisdiction, provided that he at the time, in good faith, believed himself to have jurisdiction to do, or order to be done the act in question."
(On whether this principle applies to a Magistrate, see generally Onitiri v. Ojomo (1954) 21 N.L.R. 19. See also s. 76 of the Magistrates' Courts Law, Cap. 88, Laws of Anambra State, 1991; and s. 72(1) of the Rivers State Magistrates' Courts Law, 2004). Note, however, that a judicial officer may be liable if he has not acted in good faith. In any such case, though, the onus of proof that the judicial officer has not acted in good faith is on the party who makes the allegation. On this, see Makama v. Liman (1985) H.C.N.L.R. 930, 934).
5. The Immunity Clause - To Be Or Not To Be
This discussion gradually leads us to one issue that may be regarded as having generated the most heated controversy in our polity in recent times, and that is whether s. 308 of the 1999 Constitution of the Federal Republic of Nigeria should be retained or abrogated.
The said section provides as follow:
"308 (1) Notwithstanding anything to the contrary in the Constitution, but subject to subjection (2) of this section.
(a) No civil criminal proceeding 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 should be taken of his period in office."
Subsection (2) of s. 308 provides that the provisions of subsection (1) of that section shall not apply to civil proceedings against a person to whom the section applies in his official capacity or to civil or criminal proceedings in which such person is only a nominal party. And sub-section (3) of the said s. 308 names the persons to whom the section applies as the President or the Vice-President, the Governor of a State or his deputy.
From the way the debate on this issue has been going on, there appears to be a groundswell of opinion against the retention of the immunity clause in our Constitution. The generality of the people seem to hold the view that in order to maintain sanity in governance and in order to extract full responsibility and commitment form those running the affairs of government, the provisions of s. 308 should no longer form part of our Constitution.
The reason for this bias against the immunity clause is quite obvious. Since the enthronement of democratic governance in Nigeria in 1999, the level of lawlessness, corruption, flagrant abuse of power, looting of the public treasury and sundry crimes committed by those hiding under the cover of immunity is simply horrendous. From the revelations made by the Economic and Financial Crime Commission (E.F.C.C.) on the activities of some of the Governors who were in power between 1999 and 2007, and also by the various committees of the National Assembly probing the actions and inactions of some of the Federal Government departments within the same period, it becomes clear that the call to abrogate the provision of s. 308 is indeed well founded.
Nevertheless, in deciding whether or not to expunge that section from the Constitution, there is still a great need for caution as it would hardly be wise to throw away the baby with the bath water. And for any meaningful decision to be taken in this regard the original purpose of the immunity clause should not be lost in sight.
In the first place, it has been said that the reason that the Constitution makes the President or the Governor immune from any legal action for any executive action done by him is that "neither the President nor the Governor exercises the executive function individually or personally." (See the Indian case of Shamser v. State of Punjab A 1974 SC. 2192; cited in Basu's Commentary on the Constitution of India, 6th ed. Vol. E, 1981).
It is also good to observe that the issue of immunity from action for rulers is not peculiar to the Nigerian Constitution. Heads of State or Government the world over enjoy varying degrees of immunity from action in their personal capacity. For instance, in the UK, the King or Queen enjoys more or less an absolute immunity from all actions against them personally. Hence the usual slogan: "The King or Queen can do no wrong."
In the same vein, it must be recalled that the 1999 Constitution was not the first to make provisions for the immunity of the President and the Governors in this country. Under the 1963 "Republican" Constitution, s. 161 (1) made similar provisions. In the 1979 Constitution, s. 267 (1) (a) also provided for immunity, and even the stillborn 1989 Constitution had it in s. 320. (See generally, Onabanjo v. Concord Press of Nigeria Ltd. (1981) 2 NCLR 399).
With regard to the immunity provisions made under the 1963 Constitution, it was held in A. G. (East) v. Briggs (1965) NMLR 45, that the "subsection was designed to ensure to the extent that the Governor-General or a Governor was required by the Constitution Order to act as the Constitutional convention would require a monarch to act in the UK, his action should have a similar immunity from challenges in Court to that enjoyed by the Crown in the UK. Such immunity would needless to say, be entirely without prejudice to any ministerial duty of answering to the legislature for the advice tendered and may even be regarded as designed to mark out the sphere in which the legislature rather than the judicature might call the executive to account." On this score, see also the decision of the U. S. Supreme Court in the case of United States v. Nixon, 418 U.S. 683 (1974).
Above all, the purpose of the section is to prevent the Governor from being inhibited in the performance of his executive function by fear of civil or criminal litigation arising out of such performance during his tenure of office. And as the Supreme Court of Nigeria has counseled, the section should not be extended beyond this purpose. (See Obih v. Mbakwe (1984) 1 SCNLR 192).
Indeed it seems clear from the foregoing remarks that the purpose of immunity is to prevent those running the affairs of government from being stampeded by over-zealous litigants who may be out to thwart all efforts made by any perceived "enemy" in power from achieving success in governance. It is also necessary in order to allow the machinery of government to run smoothly without unnecessary hiccups or undue distractions. It is not meant to oil the ego of those who enjoy the privilege, but rather a provision designed to protect the dignity of the office.
Beyond that, it must also be pointed out that the immunity granted by the constitution is not absolute. It is merely immunity from action or from legal proceedings and not immunity from liability; and also the immunity lasts but for a period after which the civil and criminal responsibility of the person hitherto covered by the immunity revives. And what is more, the proviso to s. 308 clearly makes limitation laws inapplicable during the period of the immunity. (See per Oguntade, J.S.C. in Amaechi v. I.N.E.C. (supra) at p. 310).
That being the case, it needs be stressed that the immunity clause should not simply be thrown to the wind merely out of sentiments without considering the implications or other legal consequences of discarding it. In the first place, once immunity is removed, then all forms of actions could be brought against a sitting President or Governor as the case may be; and the tendency is that the said President or Governor will fight or defend such an action not from his personal funds but obviously from State funds. He will definitely dip his hands into the treasury in order to fight every action brought against him as it would be highly impracticable to always separate personal actions from those brought in a person's official capacity. Thus, he would no longer be bothered about governance but would devote much of his time, energy and state resources to fighting or defending cases brought against him in his personal capacity. Such a situation is likely to grind the machinery of government to a halt.
Secondly, experience has shown that the pinch is more on a governor who fights/defends a case out of office than one who fights/defends an action while still in power. No matter the amount of looted funds he may have amassed for himself while in power, it is clearly evident that a governor who fights/defends a case when he has been stripped of the toga or paraphernalia of his office is patently at a great disadvantage much more than when he was still in power and called the shots. Ready instances exist in the grueling moments being faced presently by former governors of Delta, Edo, Jigawa, and Taraba States, whose respective experiences with the E.F.C.C. have been quite unpalatable.
Thirdly, we are of the view that it is rather far-fetched for a personal action against a sitting President or Governor to succeed, given the "Nigerian factor" (which denotes that horrendous attitude of persons in power use the positions of their offices illegitimately to frustrate the course of justice in this country). We have seen it in the election petition cases before the various tribunals all over the Federation, where the sitting governors use state machinery to advance their cases; they use state funds to hire as many lawyers as the pleased, and even the Attorney General/Commissioner of Justice of the State would even appear in the tribunal or the Court of Appeal to represent the sitting governor whose election is being challenged. These are some of the ills that may follow the removal of the immunity clause from the Constitution, and they can hardly be wished away.
Again, it must be noted that the section does not prohibit impeachment of the official covered by immunity, and so impeachment proceeding could be commenced by the relevant legislative house against the official involved who may thus be removed from office. And once removed, the cover of immunity abates and both civil and criminal responsibility is restored.
Besides, the immunity clause does not preclude the investigation of the officer concerned. So the relevant authorities are allowed to conduct investigation on the official covered by immunity (even while in office) for the purposes of gathering facts that would eventually be used for the prosecution of the affected official. (See per Uwaifo, J.S.C. in Chief Gani Fawehinmi v. Inspector General of Police (2002) 23 W.R.N. 1). This is indeed healthy for the polity, as the fact of being under investigation would serve as a stinging reminder to any errant public official, who may be basking under the euphoria of immunity, that his days are numbered. It has thus been said in this regard that:
"Following the articles of the constitution and by cogent construction, the immunity provided by the constitution in this section does not traverse investigation of allegation of indulgence in a prohibited act by a protected official. . . . The Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC), for example have been investigating protected officials and even the President, on allegations of graft by this allowance . . . Therefore, the standard set forth by the constitution in this respect is pragmatic and consonant with practices in democratic dispensations around the world and duly circumspective of the involved public interest." (See Ademola M. Ogunlewe, Immunity Clause is inevitable in Nigeria Constitution, The Guardian, Tuesday, March 25, 2008, p. 99).
It is therefore our humble view that the immunity clause be retained, and if there are more compelling reasons to expunge it, only the immunity from criminal prosecution, especially those relating to serious crimes - treasury looting and homicide, perjury and similar offences - should be expunged, and the immunity from civil actions or proceedings should still be retained. This would certainly sustain this purpose of the immunity clause in our Constitution.
Be that as it may, some salient points may be noted as regards the operation of the immunity clause. First, the provisions as to immunity do not apply to election petitions. Thus any public officer covered by the immunity clause may be sued in an election petition. (See s. 272(1) of the 1999 Constitution). In Paul Unongo v. Aper Aku (1985) 6 NCLR 262, the Court of Appeal held that the immunity granted certain functionaries of government from civil and criminal proceedings under the 1979 Constitution does not extend to bar election petition proceedings from being brought against them. "Election petitions and election related proceedings are divorced and separated from civil or criminal proceedings within the intendment and context of s. 308 of the Constitution." (See per Musdapher J.S.C. in Amaechi v. I.N.E.C. (supra) at p. 343. See also Obih v. Mbakwe (supra); Falae v. Obasanjo (1999) 6 NWLR (pt. 607) 293).
Secondly, where the provisions relating to immunity apply, they are peremptory in operation and thus admit of no waiver. In other words, the protected official cannot elect to strip himself of the immunity in order to defend a personal action brought against him. (See Col. Olu Rotimi & Ors. v. Mrs. F. O. McGregor  A.N.L.R. 828).
Finally, even though the constitutional provisions as to immunity require that a Governor cannot be sued in his personal capacity, yet the constitution is silent on whether or not a Governor can sue in his personal capacity. And, as was held by Kolawole, J. in Onabanjo v. Concord Press (1981) 2 N.C.L.R. 399, since he (the Governor) is not expressly incapacitated by any provisions of the Constitution, the governor can sue in his private capacity and personal status. (See also Aku v. Plateau Publishing Co. (1985) 6 NCLR 338, 342, per Adesiyun, J.).