Can A Person With Immunity Under Section 308 Of The Constitution Of The Federal Republic Of Nigeria, As Amended Waive His Right?

Immunity is define by L. B. CURZON dictionary of law (sixth edition) as freedom or exemption from some obligation, penalty, or power of another. Immunity clause in Nigeria is inherited from our colonial master, in their law the Crown has immunity see CROWN PROCEEDINDS ACT 1947; PEARCE V. SECRETARY OF STATE FOR DEFENCE (1988) 2 WLR 1027.

The provision of Section of 308 of the Constitution of the Federal Republic of Nigeria, as amended provide thus:

308(1) Notwithstanding anything to the contrary in this institution, but subject to subsection (2) of this section-

• No civil or criminal proceedings shall be instituted or continued against a person during to whom this section applied during his period of office;
• a person to whom this section applies shall not be arrested or imprisoned during that period either on 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 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.

The provisions of Section 308 of the Constitution is very clear to the effect that no criminal or civil action can be instituted or continued against the persons holding the office of the President or Vice-President, Governor or Deputy Governor.

The constitutional immunity so conferred does not extend to election matters but is limited to purely civil and criminal matters neither does the immunity create a correlative duty on the occupant of that office not to institute action (s) against any person party while in that office see AMAECHI V. I. N. E. C (2008) 5 NWLR (PT. 1080) 227.

Section 308 are mandatory, no civil or criminal proceedings can be instituted or if already instituted shall be continued against the person holding the office mentioned in that section. The court in the case of GLOBAL EXCELLENCE COMM. LTD. V. DUKE (2007) 16 NWLR (PT. 1059) 22 held thus:

Section 308 (1) (a) of the 1999 Constitution confers on the President or Vice-president, Governor or Deputy-Governor, absolute immunity against institution of civil or criminal proceedings against the President or Vice-president, Governor or Deputy-Governor as long as they remain in office as much.

It is the position of the law that where an action or proceeding has been instituted prior to the person assuming the relevant office, such action or proceeding cannot be continued against the occupant of that relevant office during his/her tenure in office, this is not the making of the office holder rather the provision of our constitution.

Also the section does not bar the person (s) mentioned in that section from instituting actions in their personal capacities. The apex court in the case of GLOBAL EXCELLENCE COMM. LTD. V. DUKE (supra) stated thus:

Section 308 of the 1999 Constitution confers absolute immunity on those therein mentioned, without a corresponding disability on them to exercise of their rights to institute actions in their personal capacities in any relevant court of law for redress during their tenure of office.

The said section in prohibiting a person from instituting civil or criminal proceedings against the person (s) stipulated therein went ahead to make use of the word “SHALL” to send a signal of mandatory term and no room for discretionary power.

The word “shall” is define by L. B. CURZON dictionary of law (sixth edition) when used in drafting, the word suggest an imperative, a command, as compared with “may”, which involves permission. The word shall as defined does not give room to permission rather it is a command that must be obey, and only the way prescribe by the use of the word. The court in the case of AGUSIOBO V. ONYEKWELU (2003) 14 NWLR (PT. 839) 34 stated thus:

The use of the word shall in the provision of a statute connotes that the provision is mandatory.

A person protected by the provisions of Section 308 of the Constitution with due respect to the Vice-President of Nigeria Prof Yemi Osinbajo SAN, can be investigated without having to wave any right which is not even in existence.

It is my submission through this article that the person who occupy any office stated in the named section of the constitution can be investigated and does not need to waive any right regarding investigation.

Also the holder of the office cannot waive the right enshrined in the constitution while in office, the honourable thing that can be done is to resign from that office or be impeach in other to be brought before the court, the said person does not have the power to waive such a right.

It is my humble submission regarding the media proclamation of the Vice President willingness to waive his right to be investigated as been misconceived in law, the person of the vice president can be investigated in but no actions whether civil or criminal can be brought against him during his tenure of office and such right cannot be waive while he still occupy the office, if he so willing to submit his right to resign from is unfetter which should be the appropriate statement.

PRINCE ADEDAYO SAMUEL ADESHEILA is a counsel in the law firm of Ferd Orbih SAN & Co.