IS A PRESIDENT, GOVERNOR PROTECTED IF HE BREACHES CONSTITUTION?

BY JIBRIN OKUTEPA

MUST GOVERNORS, DEPUTY GOVERNORS, PRESIDENT AND VICE PRESIDENT ENJOY IMMUNITY IF THEY BREACH NIGERIAN CONSTITUTION?

It is not in dispute that section 308 of the Nigerian constitution 1999 as amended granted immunity to those named therein. The section provides that:

“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”.

This section is the section that has castrated law enforcement agencies and other persons with good cause from filing and prosecuting some governors accused of or suspected of having abused their offices. In making the provisions for immunity as in the above section, it was the intention of the draftsman of our constitution that those who were granted immunity will be nationalistic and patriotic enough to pay due fidelity and undiluted respect for the constitution and will themselves not be agents that will violate the constitution with impunity.

The question I ask is, MUST A GOVERNOR, DEPUTY GOVERNOR, PRESIDENT AND VICE PRESIDENT ENJOY IMMUNITY IF ANY OF THEM DELIBERATELY BREACHED NIGERIAN CONSTITUTION? It is submitted that they should not. I do not see the basis to accord immunity protection to any of the beneficiaries of immunity if any knowingly breaches, violates or undermines the constitution.

Writing on the issue a retired jurist of our Apex Court opined to me that: “The Governor in his Oath of Office, consistent with Chapter II of the Constitution, undertakes to fight and eschew corruption in all its ramifications.

The oath is in the Schedule to the Constitution. The Code of Conduct for Public Officers is part of the Constitution, like s. 308 of the Constitution which must be read purposefully and holistically.

Can the Governor, reneging on his oath and violently violating other provisions of the constitution, plead the protection of s.308 of the same constitution? He who comes to equity must come with clean hands. Governor cannot, while violating the constitution seek protection of the same constitution. St. Paul: “He who does not acknowledge the law can be adjudged without it”

The learned jurist queried, “What’s the extent of immunity offered by s.308 of the Constitution? Can a Governor e.g. of Benue State who commits a crime or civil wrong in Kogi or Nasarawa State, or even FCT, plead the immunity extra territorially? Each State in a Federation is sovereign and autonomous of the other and the Federal Government. When a Governor is charged under a federal enactment for a federal offence, does s.308 immunity avail him?

We need to interrogate these questions. While it is true that time does not run against the state in criminal prosecution and that by the same section 308 of the constitution limitation law is put in abeyance for civil proceedings, it cannot be seriously argued that during the period these people enjoy immunity, they can do all to cover up and cause vital evidence to be unavailable when they no longer enjoy immunity.

I think given the docile nature of our legislative houses and the fact that in most cases, our legislative Houses are just stooges of the executive arm of government, time has come to have a second look at the immunity clause in our constitution.

In Nigeria those who violate the laws always claim protection of the law. I do not see why a governor who is in fragrant violation of the constitution should be accorded constitutional protection of immunity. We seem to have insatiable appetite to accommodate wrongs in the guise of paying fidelity and obedience to this constitutional provision and then accord immunity to those who enjoyed immunity under section 308 of the Nigerian constitution even in the face of their gross violation of the same constitution.

We need to interrogate the culture of legal practice in Nigeria. We seem to pursuing abstract justice at the expense of justice that serves the interests of the society and humanity. Why should we advocate and argue in favour of immunity for those who have no regards for our constitution in the manner they loot our treasuries dry?

Instead of using law and practice law that enhances and promote social engineering, we seem to encourage utopian theories of law and then undermine societal equilibrium in aiding and abetting those who ought to be in jail.

  • Mr. Jibrin Okutepa is a Senior Advocate of Nigeria.

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WHY FEDERAL HIGH COURT LACKS POWER TO REMOVE UMAHI

MR. JOHN COLLINS NWOBODO, an Enugu based lawyer, argues in this piece that while the Federal High Court by section 272 (3) of the Constitution of Nigeria (as amended) has jurisdiction to hear and determine the question as to whether the term of office of a Governor or Deputy Governor has ceased or become vacant, that jurisdiction is not at large but only relates to the recognized grounds for their removal 

LEGAL EXPLORATION OF THE UNTENABILITY OF THE FEDERAL HIGH COURT JUDGMENT REMOVING THE GOVERNOR AND DEPUTY GOVERNOR OF EBONYI STATE FROM OFFICE

Introduction
On Tuesday, 8 March 2022, the Federal High Court Abuja presided over by Honourable Justice Inyang Ekwo while delivering judgment in Suit Number FHC/ABJ/CS/920/2022 instituted by the Peoples Democratic Party ordered the sack of the Engineer David Nweze Umahi and Dr. Eric Kelechi Igwe, Governor and Deputy Governor of Ebonyi State respectively.

The reason for the court’s decision is premised on the court’s understanding that votes garnered during elections belong to the Political Party that sponsored the candidate citing section 221 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In the court’s view, since the Governor and his Deputy had defected from the Political Party through which they came into office, they cannot lawfully transfer the votes obtained under the platform of the PDP to the APC, their new political abode. The said provision of section 221 of the Constitution cannot by any stretch of imagination be interpreted to mean that votes scored in an election belong to Political Parties. The section merely states that only Political Parties can canvass for votes for any candidate in an election. To canvass simply means to ask for or seek support. The language of the Constitution is so clear and unmistaken that the role of the Political Party is to ask for votes on behalf of its candidate. A benefit obtained on behalf of someone indeed belongs to the person on whose behalf it is solicited and not otherwise.

Germane to the issue under discourse is the question whether the office of Governor or Deputy Governor of a State becomes vacant upon the defection of the holder of the office from the Political Party on whose platform he was elected. Put differently, can the Governor or Deputy Governor be removed from office on the ground of defection?

The above formulated question will be answered by an exploration of the law on how, when and circumstances under which an elected executive political office holder- President, Vice President, Governor, Deputy Governor can be removed or may cease to hold office.

Grounds for vacation of office or cessation of office under the Constitution
Under the Constitution, the office of the President, Vice President, Governor and Deputy Governor will become vacant under the following circumstances:

(a) Succession
(b) Death
(c) Resignation
(d) Impeachment
(e) Permanent incapacity
(See generally, sections 135, 143, 144 in respect of President and Vice President; 180, 188, 189 in respect of Governor and Deputy Governor).

From the above provision, defection is not one of the grounds for the Governor or his Deputy to vacate office. This issue came up for determination in the Supreme Court in the case of Attorney General of the Federation & 2 Ors. v Atiku Abubakar & 3 Ors (2007) 10 NWLR (Pt 1041) 1 wherein the Supreme Court categorically stated: “The power to remove the President and Vice President is provided for in section 143 of the Constitution. The provision clearly gives the role of removing the two public officers to the National Assembly….The Constitution has not conferred on the court the power to declare the office of the holder of the two offices vacant for whatever reason. Section 146 of the Constitution relied on does not confer such power on the Court….What section 146(3)(c) provides for is that where the office of the Vice President becomes vacant ‘for any reason’, the President shall nominate a new person, with the approval of each House of the National Assembly to fill the vacancy. The subsection does not confer any role on the Court in the process.” Section 191 (3) is the equivalent provision to section 146 in relation to the office of the Governor and Deputy Governor and the interpretation given to section 146(3)(c) applies mutatis mutanda to section 191(3).

Defection not a ground for a Governor or Deputy Governor to vacate office
Under the Constitution, defection as a ground to lose an elective political office applies only to members of legislative houses- Senate, House of Representatives and House of Assembly of a State. See section 68(1)(g) of the Constitution in the case of a member of the National Assembly and section 109(1)(g) in the case of member of the House of Assembly. In Abegunde v Ondo State House of Assembly & Ors (2015 8 NWLR (Pt 1461) 314 at 320 ratio 1, the Supreme Court held under section 68(1) of the 1999, where a person whose election to the legislative house was sponsored by a political party, becomes a member of another political party before the expiration of the period for which that house was elected, he would have to lose his seat in that house. But under the proviso to the said section, if his membership of the new political party occurred because there was division in the political party which sponsored him and as a result he joined the new political party he does not lose his seat.

From the foregoing, it is clear that the Constitution did not intend that an elected executive political office holder will lose his position on the ground of defection. The Supreme Court in Jev v Iyortom (2015) 15 NWLR (Pt 1483) 484 at 497 ratio 8 stated that the express and unambiguous mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same subject matter. Had the framers of the Constitution intended that defection shall be a ground for vacation of office by elected executive political holders they would have provided so in clear terms.

The legal proposition that votes belong to Political Party no longer the law
Again, let us re-examine the reason, on which the Court’s decision was based, that is, that votes garnered during election belong to political parties and not the candidate. This is in fact no longer the law. The often quoted case of Amaechi v INEC (2008) 5 NWLR (Pt 1080) in support of the proposition that votes belong to the political parties no longer stands. In Ozomgbachi v Amadi (2018) 17 NWLR (Pt 1647 171 at 174 ratio 6, the Supreme Court emphatically held that it is individuals, as candidates, who contest and win elections. Also, in CPC v Ombugadu (2013) 18 NWLR (Pt 1385) 66 at 78, 79 ratio 6, the Supreme Court held: “…While a candidate at an election must be sponsored by a Political Party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him. In other words, political parties do not contest, win or lose election directly; they do so by the candidates they sponsored…”

Two other instances in addition to the ones earlier mentioned which may give rise to the removal of an elected executive political office holder are:

(1) Through a pre-election case instituted within 14 days of the occurrence of the event. See section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). However, the question may be asked did the suit which culminated in the orders made by the court a pre-election matter as defined by section 285 (14) of the Constitution (as amended). It is obviously not.

(2) Through an election petition complaining of an undue election or undue return. This is also not the case here.

Granted that the Federal High Court by section 272 (3) of the Constitution of Nigeria (as amended) has jurisdiction to hear and determine the question as to whether the term of office of…a Governor or Deputy Governor has ceased or become vacant, that jurisdiction is only in relation to the recognized grounds as already highlighted and does not extend to defection.

Impropriety of the Order Made
Another major flaw in the decision of the Court relates to the nature of order(s) granted. Assuming that defection is a ground to vacate office which is not though, the court lacked the jurisdiction to order the Peoples Democratic Party to submit a name of its candidate to INEC. In the circumstance where the offices of the Governor and Deputy Governor are vacant at the same time, the Speaker of the House of Assembly is the appropriate person to hold the office pending the conduct of fresh election. See section 191(2) of the Constitution (as amended).

Immunity not a bar when the issue touches on whether the office of a Governor or Deputy Governor has ceased or become vacant
One other point worth addressing before I end this discourse is the issue of whether the Governor can be sued in the context of the question of whether his office has become vacant. Learned Senior Advocate, Chief Mike Ozekhome, in his commentary titled, “Neither A Governor Nor Deputy Governor Can Be Removed From Office By A Court of Law For Defecting From His Political Party To Another” raised the question “Could the Governor and His Deputy Have Been Sued in the First Case?” and surmised that no civil or criminal proceedings could ever sustain against the Governor and Deputy Governor while still holding office citing in support the cases of Tinubu v IMB Securities PLC (2001) LPELR-3248 (SC); I.C.S (Nig.) Ltd v Balton B.V. (2003) 8 NWLR (Pt 822) 223; Fabunmi v IGP & Anor (no citation supplied) and Global Excellence Communications Ltd & ors v Donald Duke (2007) LPELR-1323 (SC). I strongly disagree with the Learned Senior Advocate’s viewpoint. The defence of immunity does not avail a Governor or Deputy Governor when the question borders on whether the term of office of a Governor or Deputy Governor has ceased or become vacant. This is because the Federal High Court is imbued or clothed with jurisdiction to hear and determine the question as to whether the term of office of…a Governor or Deputy Governor has ceased or become vacant by virtue of section 272 (3) of the Constitution of Nigeria (as amended).

John Collins Nwobodo Esq. LL.B, BL, LL.M
Enugu based Legal Practitioner

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