EFFECTS OF ADMINISTRATIVE INTAKE OF AFRICAN CHALK (NZU) ON THE HEMATOLOGICAL INDICES IN WISTAR RATS

CHAPTER ONE INTRODUCTION 1.1 BACKGROUND TO THE STUDY The constitution of the Federal Republic of Nigeria 1999 as amended acknowledges the principle of separation of power, this is to ensure that each arm of government operates within the ambit of the law. To ensure that each arm of government discharges their duties effectively there are laws that provide for their immunities and tenure of office of the members of the Judiciary, Executive and Legislature. Though the constitution provides for Executive immunity in section 308 of the constitution. The subject matter ‘Immunity clause’ as enshrined in section 308 of the 1999 constitution has been a debatable topic in our current democracy. Some scholars have opined that immunity clause should be erased totally, this is because they think that retaining immunity clause actually appears ironic in the view of the government to rid governance of corrupt practice. Some scholars call for retention of immunity clause, while others are of the opinion that immunity clause should be further extended to the other arms like the legislature National assembly and the State house of assembly and the judiciary. The latter group is of the view that the Senate president, the Deputy senate president, the speaker of the state house of assembly, the deputy speaker should have their immunities provided for in the constitution. Due to the allegation of corrupt practices against some of the office holders, there has been agitations for the removal of this immunity that they enjoy which is granted to them by the constitution, this is to give way of their prosecution while they are still in office. While some others are for the retention of the immunity clause. The subject of immunity clause has been a debatable topic of being a curse or blessing to the current democracy. The experience so far since Nigeria returned to democratic rule shows that the democratic experience, especially as it affects the immunity of top executives from proceedings. The concept of immunity stemmed from sovereign or state immunity, that is the ability of a state to involve immunity, that is the ability of a state to invoke immunity from the jurisdiction of the courts of another state in circumstances where the courts of that other state would have otherwise been vested with jurisdiction of the subject matter. By jurisdiction we mean the power of the state that affects people, property and circumstances, which reflects the basic principles of state sovereignty, equality of states in domestic affairs. Scholars like Bola Ajibola in his thoughts and sharing his view on import of immunity said; … it is nothing but another word for exemption, it is this immunity that is enshrined in the Nigerian Constitution. Hence we have the immunity under section 308 of the 1999 Nigerian Constitution. This section provided immunity for the President, Vice President, Governor and their deputies… Immunity is a concept which had its roots in the ancient federal structure of England, which became a common law principle later on. The notion of ‘Immunity’ started from a Latin word ‘immunitas’ which the Romans used in describing the exclusion of an individual from service or duty to the state . Immunity clause is based on obligation. We have to note at this point that practical obligation also applies in relation to diplomatic immunity and the immunity of heads of state. Executive immunity has a place which helps foster effective governance by shielding or protecting some members of the executive arm from law suits both criminal and civil lawsuits which arises from the discharge of their public duties. Immunity protects the office holder from liabilities that would have been imposed, but it is not a defence to a legal action, rather it postpones a person’s ability to proceed with a legal claim against the holder or immune for a wrong. This research exposes the relevant provisions on immunity for certain elected political office holders to the quest for democratic consolidation in Nigeria. The idea of granting immunity to elected office holders has history. For instance, the 1963 Constitution made provisions for immunity for the President, Vice President, Governor and Deputy Governor of a region under section 161 subsection 2. Under the 1979 Constitution it was provided for under section 267 subsection 1(a-c) and subsections 2 and 3. Under the 1989 Constitution they were codified under section 320 subsections 1 (a-c) 2 and 3). While the 1999 Constitution provided for it under section 308 subsections 1(a-c) 2 and 3. The National Judicial Commission had made a recommendation on the review of the 1999 Constitution that this clause be amended to confer immunity on the political office holders concerned on civil matters but criminal matters excluded this is to mitigate the negative outcomes. A major democratic thought that contrasts with the concept of immunity is equality before the law. This is one of the branches of the Rule of Law. The doctrine of the Rule of Law stands and will not be manipulated in order to suit a particular set of people which is purported in this example. If a man is tried for stealing a phone, the president or one of the office holders who have immunities should be tried if they do same. The aim of this long essay is to further discover the scope for a historical and legal analysis of this area of law and its impact on the modern democratic realities in contemporary Nigeria. This essay examines lessons from scholars, we can achieve that by revisiting the origins of the law that allows for the provisions of immunity and critically casting our minds on evolutionary milestones in modern democracy which has reshaped nations in the present day. Therefore, this essay exposes us to immunity clause and its sphere, the extent and it’s limit as related to the officers protected the arguments for and against its retention on the Constitution, as well as the practices in other jurisdictions. We would also discuss the effect of immunity and the instances where immunity may not apply to protect political office holders. 1.2 STATEMENT OF THE PROBLEM Immunity clause under the Nigerian Constitution can be traced to colonialism under Britain which makes them be in affinity with Britain in the post-independence period. Since Nigeria has a colonial background of the British colony, many of her laws and statutes are a reflection of her former colonial masters that is, Britain. A Nigerian Law report has indicated that the section on immunity was couched to ensure that the chief executive officer has a similar immunity enjoyed by the British monarchs, this is done to ensure that his actions will not be questioned in court. Nigeria got her political independence as a sovereign nation under the 1960 Constitution which led to the second phase of her Constitutional development. When we look at the 1960 Independence Constitution there are still blueprints of colonialism in it. Going further the 1963 Republican Constitution granted Nigeria full political autonomy although there were so many induced colonial master plans that were retained and were incorporated into the 1963 Constitution though there were subsequent amendments in the constitution. However, this research would show that so far, the post-independence Constitutional amendments has been a shield to Nigerian elites from being properly accountable. The Constitutions enacted and promulgated by both the civilian and military administrators respectively hampered the combative tones of average Nigerians against unfavourable and tyrannical policies of the government The provision of the immunity clause has been further criticized on the grounds that the public officers that were granted immunity under section 308 (3) of the Constitution are incentivized in the commission of civil wrongs or crimes. Going from the provision of immunity clause, it is almost impossible to hold any case against an incumbent executive even if he commits the offence openly. Thus, the Governor of a state practically is above the Law because he is immune to any type of offence till his tenure ends. This poses the problem of whether the immunity clause can be seen as anything good and whether there is any need to extend or limit it to bring into conformity with the principle of the Rule of Law. In our national anthem we say ‘the nation bound in freedom, peace and unity.’ The only guarantee for this statement is the Constitution; with the above statement we check whether the concept of immunity has passed the test of supremacy, equality before the Law by this we mean ‘does immunity clause make some people untouchable? In the process of our research on the examination of the concept of immunity clause will determine whether it increases the chances of effective governance, or whether it affects the fight against corruption in Nigeria. 1.3 AIMS AND OBJECTIVES OF THE STUDY This essay aims at examining the provisions of the immunity clause, the concept and the nature of immunity and its classifications in Nigeria. The objectives of this study include: 1. To examine the concept of immunity clause, it’s sphere, extent and limit as it relates to the officers it serves as a shield to in Nigeria. 2. To highlight the arguments for and against the retention of immunity clause in the Constitution and how it affects the accountability and good governance. 3. To analyze immunities and other state practices in other jurisdictions, their peculiarities as opposed to Nigeria with the aim of extracting lessons which Nigeria may learn from to review the Constitution. 1.4 SCOPE OF THE STUDY This research will discuss on executive immunities. The legislations to be reviewed are mostly the municipal Laws of Nigeria especially the 1999 Constitution. At some point the constitutions of different countries will be referred to. This essay will not exceed the content of this title, it shall be within the ambit of this topic. Although immunity seems to be a universal concept, there are certain situations that call for certain measures, and in the process of applying these concepts, there will be a case of breach in the constitution. Therefore, this essay seeks to examine the provisions of immunity under Nigerian Law and how it affects the fight against corruption This research seeks to explore the different Laws of the Federation with the view to highlight the applications of the application of the doctrine of immunity in Nigeria. The principal legislations that features within the scope of this research include the Constitution of the Federal Republic of Nigeria 1999 as amended, which is the ground norm of all Laws in Nigeria, Money Laundering (prohibition) Act, the Criminal Code, Corrupt practices and other related offences Act and other case laws. 1.5 SIGNIFICANCE OF THE STUDY The findings of this study will benefit the members of the society considering that the constitution is the ground norm of all Laws in Nigeria. The significance of this paper is thus; that it may be relevant to a reform to the justice system via the review of the 1999 Constitution in the provision of immunity for some public office holders to preserve the Rule of Law. This essay focuses on the abuse made by politicians in Nigeria on immunity clause. The citizens stand to benefit from the scope of immunity clause as this research tends to buttress the fact that those disturbing issues concerning immunity clause, which will give Nigerians better understanding of how immunity clause applies to their representatives and how this application affects the carriage of justice, and how it also affects the citizens of the state. In as much as we will be focusing more on section 308 of the 1999 constitution as it provides for immunity which relates to Presidents, Vice Presidents, Governors and Deputy Governor, we will also be doing a concise work on other types of immunities like Judicial immunity and Legislative immunity. This work will also attempt to examine the provisions of this concept and how it affects the fight against corruption. Moreover, the knowledge from this work will be used as ideas for future intervention to foster proper administration of the judicial system and the tenets of true Democracy. 1.6 RESEARCH METHODOLOGY The research methodology in this essay is doctrinal. In the course of this study, we will be relying on the primary and secondary sources of Law. The sources of this work is essentially documentary, we also have the opinions of text writers and jurists. The primary sources of law to be consulted include but not limited to these: i. The 1999 Constitution ii. Diplomatic immunities and Privileges Act and iii. The Criminal Code etc. The secondary sources of Law that will be consulted are textbooks written by jurists, articles by learned scholars and Law teachers. We would also use articles on the internet, Law reviews to achieve the objectives of the work. 1.7 LIMITATIONS TO THE STUDY In the course of the research to this study, some limitations were encountered. Some of the limitations include: 1. Limited Access to literatures on the internet: This is a major challenge to the success of this work, this is because we do not have a wide range of scientific literatures, which means that there will not be access to the required materials and articles to ensure that this work is a success. 2. Lack of financial resources due to the present hike in price of resources in the country especially for materials used, they are quite expensive and the funds are not readily available and accessible to us. When we do not have funds to purchase the materials needed for this study it affects research. CHAPTER TWO LITERATURE REVIEW 2.1 INTRODUCTION In this chapter we will be considering literatures relevant to the subject matter of this study which we have found useful in the course of our research of the provisions of immunity clause and its effect in fighting corruption in Nigeria. There are decided cases in this area, because immunity is not alien to any country in the world including Nigeria. Thus, there were materials that were available which we found useful and they are in form of textbooks on constitutional law, publications and articles that have been consulted. There are article writers and textbooks that have been given an update on the subject matter, when we bring them together, we have a reliable literature on immunity under Nigerian law. These authors have thoroughly examined the complexities of immunity the application within Nigeria. The persons affected [that is the persons the advantage has been conferred] they also go ahead to examine the circumstances under which these persons selected are protected by the shield of immunity. In the course of this research we will also find out litigants are reluctant to make attempt to institute an action against protected persons because of immunity, it is more depressing because immunity as a concept is entrenched into the constitution. The constitution being the grundnorm has to be obeyed, therefore it serves as an ouster of the jurisdiction of any court before which a protected person is brought. This has caused a lot of confusion and has affected due and proper examination of immunity by the courts in Nigeria. Since there has been no much aid from judicial pronouncements. Moreover, there has not been growth or reformation of laws on immunity. For a better understanding of the subject matter, this chapter will be divided into two segments for better explanation and illustration of the subject matter, the segments include; 1) Theoretical framework 2) Conceptual framework This will help for better understanding of the subject matter; this chapter attempts to expose us to the theoretical study of constitutionally backed up laws which provide for various forms of immunity in Nigeria. In studying some of the theories we will be looking at theorists from the Natural law school, positivists law school and some derivatives of the positivists la school. These theories form a jurisprudential background for the assessment of this topic and it provides us with more tools to critically examine immunity under the Nigerian legal framework. Furthermore, this chapter will attempt to trace the historical development of immunity. 2.2 THEORITICAL FRAMEWORK There is no generally acceptable definition of ‘law’ as different scholars view it from different perspectives and points of view which is known as school of thoughts. These erudite scholars have in their ideology defined law to what they see it as. In H.L.A Harts work “we see law in different light but the light is usually so bright that it blinds us to the reminder and so leaves us without a clear view of the whole. It is these divergent views that necessitated various schools of thought in the quests to define law”. For the purposes of this work emphasis will be placed on the Natural law school and the Positivist law school. 2.2.1 Natural School of Thought Natural law (ius naturale,lex naturalis) is a system of law that is based on a close observation of human nature and it is based on values intrinsic to human nature that can be deduced and applied independently of positive law [the enacted laws of the state or society]. Natural law can be said to be that objective, eternal imitable hierarchy of moral values which are sources of obligations with regards to man because they have been ordained by the creator of nature. Natural law posits that there is a connection between law and the values of freedom and equity. The natural law school presupposes the existence of a natural order of human affairs. The term ‘natural law’ is rather ambiguous. It refers to a type of moral theory. It is argued thus that human behaviour is governed by moral standards which are derived objectively from the nature of human beings and the nature of the world. According to natural theory of law, there is no clean division between the notion of law and the notion of morality. The natural law tradition of thought about morality and jurisprudence has its roots in Ancient Greek and Roman philosophy and was developed and systematized by great scholars, particularly Thomas Aquinas, and continues to be influential to the present day. The natural law theory is of the view that, through rational reflection, human beings can discern principles of right action that direct us to order our wills toward integral human fulfillment, and the well-being of all human beings as persons and communities. These principles hold universally in all times and cultures, although many concrete applications of these principles may vary with circumstances. Natural law thus includes a theory of value – a substantive account of human well-being in its various dimensions – as well as a theory of right action – moral rules and principles that guide and structure ethical decision-making in concrete cases. For Aquinas human nature is defined by rationality; what is most natural to human beings, in Aquinas’s sense of the term natural, is to act in accordance with reason. The natural inclinations to which Aquinas refers, as corresponding to the human goods to which the first principles of practical reason direct our choices, are not the inclinations of sub-rational desire, but rather the inclinations of the will, a rational appetite which tends toward intelligible goods as apprehended by reason. Natural law theories offer an account of legitimate authority and the obligation to obey the law that avoids some of the well-known and seemingly intractable difficulties of basing legitimate authority on actual or hypothetical consent. We will be looking at early modern social contract theorists such as Pufendorf, Hobbes and Locke and continuing into the contemporary period most famously with the hypothetical contract theory proposed by John Rawls in a Theory of Justice, there is an assumption that to be a part of an authoritative community (that is a community with some degree of decision-making power over its members) is, though really necessary for survival and well-being, fundamentally unnatural to human beings. For authoritative communities to exist legitimately, they must be based upon the consent of their members, understood as free and equal individuals subject to no pre-consensual authority structures. Thomas Hobbes in his work Leviatham, contended that man lived in a state of nature, he lived in savagery and great insecurity and he was continually at war with his fellow men, thereby living on perpetual fear and misery and interminable strife often ending in violent deaths. Hobbes stated that in such a situation that life was solitary, poor, nasty, brutish and short, therefore in order to secure personal security man has to escape from his frightful situation by entering into a social contract with one that was superior, by surrendering their rights to him in turn to receive protection this is done for self-protection as it was a survival of the fittest. Natural law on the view of justifying political authority is not really a matter of consent, rather it’s a matter of recognizing that solving coordination problems among individuals, families and particular associations is necessary for the common good, and that the only practicable way to solve such problems is through authority. Natural law in early times have been known to support the doctrine of the divine rights of kings therefore this may be the basis for the rationality of the doctrine of both sovereignty and the immunity of the sovereign as in this context, the sovereign is accountable only to God. It was invoked to justify and promote many different theories and agendas [ from absolute rule, the divine right of kings and obedience, to early ideas about human rights. The theologian Thomas Aquinas is remembered for his liberalizing influences on natural law thinking. Harmonizing the Christian idea of original sin with the Aristotelian concept of human flourishing, Aquinas developed a new theological, moral and political theory that provides an account of the relationships between four types of law - eternal law, natural law, divine law, and human (positive) law – and this has been widely adopted as a basis for Roman Catholic teaching. It might seem that no scheme of politics could be more purely ideal than one which asserts divine authority for its basis; a sure extract of divine law. The theory for the divine rights of kings in its completest form involves the following propositions: 1) Monarchy is a divinely ordained institution 2) Hereditary right is indefeasible 3) Kings are accountable to God alone 4) Non-resistance and passive obedience is enjoined by God These theorists in summary, believe that Monarchy is pure, the sovereignty being entirely vested in the king whose power is incapable of legal limitation. The Catholic priest Thomas Aquinas developed a theory of natural law in Summa Theologicae in which he affirmed Aristotle’s views that law is based on human reason and must be promulgated for the common good. In his words: The sovereign is said to be exempt from the law, as to its coercive power; since, properly speaking, no man is coerced by himself, and law has not coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pass sentence on him, if he acts against the law.... But as to the directive force of law, the sovereign is subject to the law by his own will, according to the statement ... that whatever law a man makes for another, he should keep himself ... Hence, in the judgment of God, the sovereign is not exempt from the law, as to its directive force; but he should fulfil it to his own free-will and not of constraint. Again the sovereign is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place. Although Aquinas acknowledged that the sovereign was exempt from the law because no other person was competent to pass sentence on him, he reasoned that it was proper for kings to submit to the law because whatever law a sovereign makes he should also respect it himself. On a final note, the researcher takes a look at the famous words of King James I delivered to his Lords and Commons at Whitehall on 21st March 1609/10. The state of monarchy is the Supremest thing upon earth: for kings are not only gods lieutenants upon earth, and sit upon gods throne, but even by god himself they are called gods. It is against this backdrop that the researcher assesses the origin of the law on immunity on the basis of natural law and associated theories. 2.2.2 Positive Law Theory Positivism is a reaction to the perceived deficiencies of natural law school. One of such deficiencies is the flexibility of natural law theory leading to its imprecision, also there are no definite sources. Legal positivism is the theory of law that emphasizes the ‘is’ as against the ‘ought’. It seeks to adopt the scientific to the approach to the study of law by focusing only on the phenomena that it can be experimental, observed and demonstrated. Positive law theorists are of the view that law should be certain and clear. While natural law theory exaggerates the relation of law and morality, positive law theory is a reaction against particularly that aspect of natural law theory. It insists on a distinction between human law, which they call positive law and moral laws. Positive law is the belief that law is established by the state for the benefit of the state as a whole. There is no moral purpose in legal positivism other than to ensure the survival of the state and its citizens. Obedience to law is no longer a matter of conscience and morality. Disobeying the law amounts to a crime and anyone who breaks the law is subject to punishment. This theory supports the legal process argument that the constitution is a product of processes that is created and largely controlled by man. The crucial difference between legal positivism and natural law theory, for purposes of analysis of the doctrine of immunity, lies in the manner in which the validity of law is determined. In this regard, positivism can be distinguished from a roughly-hewn version of a natural law theory which, to the extent that legal validity matters at all, employs a test that focuses on what the legal standard is rather than how it was created. Natural law theory attaches validity to law when its content passes a “moral test”, while legal positivism considers validity to depend on whether the law’s source was authorized to make law and on whether formal requirements were satisfied in the specific instance. This concept of law presupposes that; the existence of laws is not dependent on their satisfying any particular moral values of universal application to all legal system; the existence of laws depends then upon their being established through decisions of human beings in society. On this conception, it is reasonable to argue that the doctrine of immunity is created from the relationship between man-made laws; a sovereign and a subordinate body. The sovereign is ascribed with absolute power therefore subordinate bodies cannot attempt to use the law made by the sovereign to limit the power of the sovereign and make the sovereign face legal action. If laws come from the superior to the inferior, then the superior is entitled to enjoy some form of immunity from breaking his own law. Besides the superior is sovereign and absolute. This has clearly influenced polities around the world where the head of state is precluded from facing legal actions while in office. 2.3 CONCEPTUAL FRAMEWORK In this part, the research focuses on the definition of keywords and terms underlying the subject matter of the study that is constitutional Immunity in Nigeria. 2.3.1 Justice Many contemporary philosophers consider “justice” to be the crucial normative concept in ethics and political philosophy. Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise, laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Many different kinds of things are said to be just and unjust: not only laws, institutions, and social systems, but also particular actions of many kinds, including decisions, judgments, and imputations Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspectives, including the concepts of moral correctness based on ethics, rationality, law, religion, equity and fairness. The state will sometimes endeavor to increase justice by operating courts and enforcing their rulings. Consequently, the application of justice differs in every culture. Early theories of justice were set out by the Ancient Greek philosophers Plato in his work The Republic, and Aristotle in his Nicomachean Ethics. Throughout history various theories have been established. Advocates of divine command theory have said that justice issues from God. In the 1600s, philosophers such as John Locke said that justice derives from natural law. Social contract theory said that justice is derived from the mutual agreement of everyone. In the 1800s, utilitarian philosophers such as John Stuart Mill said that justice is based on the best outcomes for the greatest number of people. Theories of distributive justice study what is to be distributed, between whom they are to be distributed, and what is the proper distribution. Egalitarians have said that justice can only exist within the coordinates of equality. John Rawls used a social contract theory to say that justice, and especially distributive justice, is a form of fairness. Robert Nozick and others said that property rights, also within the realm of distributive justice and natural law, maximizes the overall wealth of an economic system. Theories of retributive justice say that wrongdoing should be punished to insure justice. The closely related restorative justice (also sometimes called "reparative justice") is an approach to justice that focuses on the needs of victims and offenders. The principles of justice for institutions must not be confused with the principles which apply to individuals and their actions in particular circumstances. The principle of justice for institutions is totally different as it is deemed that those institutions are created to represent the people and some people are appointed to be in that position as representatives. Immunity is being granted to those executive officers this is to enable them work properly without distractions arising from proceedings. 2.3.2 Immunity Immunity has several meanings depending on the context of its use. In legal parlance, immunity refers to exemption from performing duties, which the law generally requires other citizens to perform, or from a penalty or burden that the law generally places on other citizens. According to Black’s Law Dictionary, the term immunity means an exemption from a duty, liability, or service of process, especially such as exemption granted to a public official. The Dictionary further defines immunity by classifying it as absolute, congressional, constitutional, diplomatic, discretional, etc. Section 308 of the 1999 Constitution, popularly called the Immunity Clause, confers immunity from legal proceedings on certain political office holders. Political office holders so protected include a person holding the office of President or Vice-President, and Governor or Deputy Governor. The origin of this class of immunity dates back to the era of absolute monarchs, when it was believed that a king could do no wrong; hence the term “Sovereign Immunity”. The purpose of the immunity clause is to provide the incumbent a free hand and mind to perform the duties and responsibilities of his office without distraction from litigation. This, however, does not prevent criminal investigation while in office. The immunity is essentially for the protection of the dignity of the office and not for the individual office holder as such meaning that immunity comes as a result of the office one is holding especially as an executive. If a civil or criminal proceeding was instituted against any person before he/she became President, Vice-President, Governor or Deputy Governor, the action will abate automatically. Legal immunity, or immunity from prosecution, is a legal status wherein an individual or entity cannot be held liable for a violation of the law, in order to facilitate societal aims that outweigh the value of imposing liability in such cases. Such legal immunity may be from criminal prosecution, or from civil liability (being subject of lawsuit), or both. The most notable forms of legal immunity are diplomatic immunity, judicial immunity, and witness immunity. . 2.3.3 Corruption The word corruption has been described by different people as one of the greatest challenges to the establishment and consolidation of democratic systems in the continent. The notion that corruption adversely impedes development is no longer an issue of debate. Cross country empirical work has confirmed the negative impact of corruption on institutions, growth and productivity, policy processes, property rights, and consequently, development. In few African countries, the negative impact of corruption has been translated into political instability and frequent regime changes “Corruption is the intentional non-compliance with the arm’s-length principle aimed at deriving some advantage for oneself or for related individuals from this behavior.” There are three basic elements of this definition. The first element deals with the arm’s-length principle as it requires that personal or other relationships should play no part in the economic decisions that involve more than one party. Equal treatment of all economic agents is essential for a well-working market economy. Bias towards particular economic agents definitely violates the arm’s-length principle and fulfills a necessary condition for corruption. If there is no bias, there is no corruption. There are two additional necessary conditions for corruption, or rather conditions that must be fulfilled for observed bias (“non-compliance with the arm’s-length principle”) to be specified as corruption. The first condition is that the bias must be intentional – accidental violation of the arm’s-length principle because of, for example, imperfect information, does not represent corruption. Second, there must be some advantage for the individual who commits a violation of the arm’s-length principle; otherwise, there is no corruption. Violating impartiality may sometimes represent racism, but it is not corruption. Deriving some advantage, or seizing some benefit for the corrupted economic agent, can have different forms. It is a rather widespread notion that corruption is receiving money (this form of corruption is most often called bribery), but similar gain can imply expensive gifts or various favors returned. Giving expensive jewelry to the wife of the person who violated the arm’s-length principle and providing a well-paid job (with little work) for his son is definitely corruption. Seizing some benefit or deriving some advantage can be carried out simultaneously with a violation of the arm’s-length principle, but those two actions can be taken at different times. Namely, biased behavior of the one who is corrupted makes an informal, but sometimes binding obligation of the corruptor to return or repay the favor, and that obligation does not grow obsolete, so that seizing the benefits from the one who is corrupted moves into the future. There is widespread agreement among academics, policymakers and the informed public that corruption essentially involves the use of a public office for private gain, there is no consensus on the causes for corruption. An array of explanations includes centralization of power; lack of ethical leadership, morality, accountability, and transparency; greed; excessive or over-centralized economic and political power; and inefficiency. The variety illustrates the often morally charged and ethnically grounded debate on this contentious issue. The central argument is that corruption has lingered and even grown due to public office holders' refusal to follow the fundamental tenets of participatory governance--account for their actions and expenditures. It is clear from the democratic experience in most developing countries that establishing democratic forms of accountability is a long-term process that requires the involvement not only of politicians and elites, but civil society and the people in general. Civil society's role, however, in participatory governance in Africa has been sporadic because the government oftentimes has deliberately excluded it. More important, its various groups and interests have become very fragile and unable to act as a potent force as they have not been given the opportunity and/or protection to improve the quality of governance in their societies. The capacity of civil society and other stakeholders in the fight against corruption can only be useful when complemented with institutional interventions, which in most countries are controlled by the political and economic elites. Connecting this sub topic to our work we see that immunity has done more harm than good to our society especially on the side of corruption. Immunity like we have said earlier makes our leaders be like they are ‘untouchable rabbits’ by this we mean that because of that immunity that has been granted to them because of their position, they end up using the immunity to fulfill their treacherous deeds, they use the opportunity to commit all sorts of crime at that particular time because they know that nobody will question or drag them to court. Even after they get out of seat it is expected that they are to be reprimanded for their wrong doings but in Nigeria it is not so, instead the role of godfathers come into play, they come into save their sons from facing the rhythms of the law. We will be using Orji Uzor Kalu.v.F.R.N in this case Orji Uzor Kalu was accused of spending over 7 billion naira that was meant for the state and when the matter was taken to court he was found guilty as charged and was sentenced to 14 years imprisonment the matter was taken up on appeal he had already spent 6 months in prison, the appeal court held that the judge who gave the verdict had been transferred and the judgement would not stand therefore the matter has to be retried in court thereby setting Orji free from the prison but the funny thing is that till today the matter has still not be redressed in court. When we trace this back, we find out that it is still big dawgs that save them from the beats the law has given them. 2.3.4 Separation of Power The separation of powers is usually understood as a constitutional doctrine that separates government into autonomous institutions responsible for performing distinct functions. The most common system separates government into legislative, executive, and judicial branches. According to this model, the legislative power creates laws, the executive power enforces laws, and the judicial power interprets laws. Each branch theoretically performs only its own function, and the individuals working within each branch should not concurrently work in another branch. The main justification for separating powers between independent branches is to prevent any individual or group from accumulating excessive power and ruling tyrannically. Separation of power act as a check and balance to prevent abuse of power. The doctrine of separation of powers as it is understood today came largely from the work of the French Jurist Baron De Montesquieu in his book The Spirit of Law (chapter XI) who studied and expanded the work of John Locke. He was concerned with the preservation of political liberty of the citizen. According to him: Political liberty is to be found only when there is no abuse of power. Experience shows that every man invested with power will abuse it by carrying it as far as it will go... to prevent this abuse, it is necessary from the nature of things that one power should be a check on another...when the legislature, executive and judicial powers are united in the same person or body..., there can be no liberty...Again there is no liberty if the judicial power is not separated from the legislative and executive...There would be an end of everything if the same person or body whether of the nobles or of the, people, were to exercise all three powers. The separation of powers is typically implemented in conjunction with a system of checks and balances. These are methods, often included within a constitution, for each branch to counter and restrain the power of the other branches. Common checks include executive veto of legislative bills, legislative impeachment of the executive, and judicial overrule of executive and legislative actions. How these checks contribute to balances between the different branches is debated because balancing power presupposes the ability to measure it, and each branch has jurisdiction over different types of power. It is nevertheless generally acknowledged that including a system of checks and balances alongside the separation of powers helps prevent one branch from dominating the entire government. Confusion surrounds the separation of powers doctrine because governmental power has been devolved into functions and areas. The classic functions are legislative, executive, and adjudicative or judicial functions. These are also frequently referred to as powers. Separations based on areas include electoral affairs, civil service management, and auditing. These are also referred to as specialized tasks. The institutions responsible for particular areas often exercise multiple functions. The separation of powers phrase is ambiguous because it can refer to dividing overall power, functions, or areas. It is thus important to be clear about which way the term is being used. The French Declaration of the Rights of Man in 1789 went so far as to suggest that Any society in which the safeguarding of rights is not assured, and the separation of powers is not established, has no constitution The 1999 Constitution of the Federal Republic of Nigeria recognizes the doctrine of separation of powers. While section 4 of the Constitution vests the legislative powers of the federation on the National and State Houses of Assembly; section 5 and 6 vest the executive and judicial powers of the Federation on the President and Governors; and the courts established by the constitution, respectively. Additionally, section 147(4) of the Constitution provides that: a member of the legislature appointed as a minister of the Federation must vacate his seat in the legislature. This is consistent with the decision of the Court of Appeal in Hon. Abdullahi Maccido Ahmad v. Sokoto State House of Assembly & Anor, where the Court Per Salami JCA held inter alia that; The doctrine of separation of powers has three implications. a. that the same person should not be part of more than one of the arms or division of government; b. that one branch should not dominate or control another arm. This is particularly important in the relationship between (the) executive and the courts; c. that one branch should not attempt to exercise the function of the other... The tripartite division of powers is necessary for the purpose of achieving balance of authority and power for the smooth running of government at any level. The exceptions to the strict application of the theory of separation of powers are known as checks and balances. 2.3.5 Government If you compared all the governments in the world you would find out one thing and that is, that someone is in charge Government the office, authority or function of governing. Governing: having control or rule over oneself. Governance: the activity of governing. Accordingly, governance is a set of decisions and processes made to reflect social expectations through the management or leadership of the government (by extension, under liberal democratic ideals, the will of ‘the people’ as they rule themselves). There are many issues implicit in this set of relationships whose core revolves around the notion of citizenship as this defines the body politic over which claims of self-rule apply. In the most general sense we have the difference between a liberal democratic view that the government (state) serves citizens who have a natural claim on services as a benefit and right of citizenship on the one hand, and on the other the counter enlightenment view often associated with fascism: that the citizen must serve the state and has no rights other than those granted by the state. A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a means by which organizational policies are enforced, as well as a mechanism for determining policy. Each government has a kind of constitution, a statement of its governing principles and philosophy. While all types of organizations have governance, the term government is often used more specifically, to refer to the approximately 200 independent national governments and subsidiary organizations. The role of the government is to protect the lives, properties, and liberties of her citizen also to provide those services that her individuals cannot provide on her own. To exercise authority, governments are given power to use force We may well ask: are we governing? Does a government exist that represents all of its citizens? Have things changed so much that we do not even concern ourselves with any semblance of legitimacy – perhaps settling that old debate over whether or not the state is relatively autonomous from capital? We are left to ponder whether or not our definition of ‘citizen ‘is too broad, and whether there are effectively two classes of citizens: those who manage to get government support when no competing claims are presented, and those whose wealth and corporate ties ensure that governments act on a narrow definition of ‘the public’ as it governs. The different types of governments portray immunity no matter how tough the government is. For example, in an autocratic government the leader is supreme and has the absolute power to do anything without questions and nobody can take him to court because he has immunity because of that position he is in. 2.3.6 Rule of Law The rule of law is a concept that describes the supreme authority of the law over governmental action and individual behaviour. It corresponds to a situation where both the government and individuals are bound by the law and comply with it. The concept of the rule of law is one of the prominent and important constitutional concepts. It is a fundamental principle accepted as a standard not only for judging the performance of government, but also for determining which is beneficial or destructive to humanity. This concept is the bedrock of our system of justice. Being the bedrock of our system of justice, it is of great importance, so as to justify the legal order and legitimize the system of a given society. The rule of law being a constitutional concept remains the cornerstone of governance in any given polity. It means that everything must be done according to the law. This implies that both the government and the governed must always justify their actions in law. And that government should be conducted within the framework of recognized rules and principles which restrict discretionary power, which Coke colourfully spoke of as “golden and straight net wand of law as opposed to the uncertain and crooked cord of discretion.” It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power. But the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests’ conflict with others’ they should accept legal determinations of what their rights and duties are. Also, the law should be the same for everyone, so that no one is above the law, and everyone has access to the law’s protection. In Shugaba v. Minister of internal Affairs , the Court held that rule of law ensures equality of all persons without any distinction, that it also guarantees transparency and incorruptibleness and must be preferred. Stretching further on the position of the law on equality and supremacy of the law, Yohanna A Madaki posits that the rule of law means supremacy of the law, equality of both government and governed before the law, absence of arbitrariness in government. It also means governance according to known due process established by laws that are certain and respected for the right of the individual. It then follows that a despotic government, particularly one not elected or one fraudulently elected cannot observe the rule of law. The phrase “rule of law” only entered common parlance in the nineteenth century thanks to the writings of British constitutionalist Albert V. Dicey. His Introduction to Study of the Laws of the Constitution provides the first major explanation of what the rule of law entails in a liberal democracy. According to Dicey, the rule of law consisted of three inter-connected elements. Firstly, the rule of law demands that no person should be subject to punishment except for a breach of a pre-established law, and it is the ordinary courts that are the proper venue for determining whether such a breach of law has occurred. The rule of law is therefore incompatible with the “exercise of wide, arbitrary or discretionary powers of constraint” by government officials. Secondly, under the rule of law everyone is equal in the eyes of the law. This implies that government officials should not enjoy special immunities (save for the monarch) and should be held accountable for their actions before the ordinary courts. 2.4 SUMMARY OF REVIEW We have looked at some of the concepts associated with the doctrine of immunity, we have also looked at the theoretical framework that brought about the application of this doctrine we did this by examining some of the materials that were available on immunity. From the researches we have done so far, we have seen that this particular doctrine is universal that is it is everywhere around the world, in one form or the other, for some the immunity is absolute while for some the immunity is qualified. There is no doubt that countries have a way of running their government smoothly, thus the need for immunity it becomes pertinent for the leader to enjoy some level of immunity associated with his acts as the legitimate head of state against whom there can arise no accusation and prosecution in a court of law. The review of literature has revealed a loophole between the statutory and structural framework which regulates the application of the doctrine of immunity in Nigeria on the one hand, and the dangers likely to be caused by the strict application of the doctrine. During the course of this research the available materials were good enough to sustain the research on the topic ‘Immunity Clause and its effects in fighting corruption in Nigeria’. Works from Thomas Aquinas, John Locke and other theorists of law helped with the foundational theories of the state and government which has elucidated some factors underlying the grounds for the application of the doctrine of immunity. A. V. Dicey among others provided the research with a good background to develop context for the conceptual framework for the appraisal of the doctrine. Extra efforts will be made to fill in the gaps in some of the literature on the doctrine of immunity in Nigeria; exploring emerging problems and suggesting new ways of intervention in order for the doctrine to fully actualize the intendment of political stability and stable national development. These are issues, not adequately covered by most of the literature on the subject matter of the review. 2.5 HISTORICAL REVOLUTION "The king can do no wrong" is a maxim familiar to layman and lawyer alike. Legal historians are in awe at the very bases of this unwanted and unjust concept, and legislatures have gradually relinquished the state's claim to irresponsibility. Obscurity and uncertainty must characterize any discussion of the historical evolution of this rule of immunity. Therefore, countless litigants have been stunned by the rigorous application of the dead but lethal residuum of an outmoded doctrine. Different opinions are held as to the origin of this doctrine. It is known that the petition of right developed during the reign of Edward I, and it has been argued that prior to the reign of Edward I, the king was subject to suit in his own courts, but in their authoritative work on early England, Pollock and Maitland state as a simple fact that even at that time, the king was free from suit and prosecution in his own courts. It is not clear at exactly what point the personal immunity of the king was transformed into its present-day counterpart- the immunity of the Crown. It seems, however, that this change was accomplished during the rise of the nation state. Therefore, what was once the mere personal immunity of an individual was finally merged with the whole concept of sovereignty; and the theory of the divine right of kings lent support to the proposition that the king was above the law-that he was in fact the law-giver appointed by God, and therefore could not be subjected to the indignity of suit by his subjects. The origin of the immunity clause in the Nigerian constitution can be traced to colonialism and Nigeria’s affinity to Britain in the immediate post-independence period. Due to Nigeria’s colonial background, many of her laws and statutes simply mirror those of her former colonial overlord, the United Kingdom. Nigeria is a creation of the 1914 Constitution fashioned out by the Lord Fredrick Lugard, a British imperialist. Prior to the colonial arrangement of the fragmented territories that sum up Nigeria, each territory had its distinct unwritten constitution. English law (common law) was incorporated into the Nigeria’s political sphere alongside the territorial unification arrangement. Subsequently, the country witnessed constitutional developments which are classified into two historical epochs; colonial and post- colonial constitutional amendments. The colonialists maintained outright dominance with the legislation of draconian and repressive laws such as Seditious Offences Ordinance, immunity clause, etc. So far, the post-independence constitutional amendments have been shielding the Nigerian political elite from proper accountability. The constitutions enacted and promulgated by both the civilian and military administrators respectively hampered for combative tones of average Nigerians against unfavorable and tyrannical policy of government. Immunity clause among other constitutional provisions that were incorporated into the post-independence constitutions protects a category of Nigerian political leaders from legal suits. As a Nigerian Law Report has indicated, the subsection on immunity was designed to ensure that the political Chief Executive has immunity similar to that enjoyed by the British monarch, such that his actions would not be challengeable in court. It adds, however, that such immunity would be without prejudice to any ministerial duty of answering to the legislature for the advice tendered. The inclusion of the clause in Nigerian constitutions may be designed to mark out the sphere in which the legislature, rather than the judiciary, might call the executive to order. A second and arguably reason for the inclusion of the immunity clause in the Nigerian constitution is the need for the political chief executive to be able to perform his/her duties without inhibition. This was well summarized in the case between Obih v Mbakwe in the Second Republic where it was held that: The purpose of this section is to prevent the Governor from being inhibited in the performance of his executive functions by fear of civil or criminal litigation arising out of such performance during his tenure of office. The provision should not be extended beyond this purpose. A third reason for the inclusion of the immunity clause in the Nigerian constitution is the effect of contagion. This is the feeling that if older polities such as the United Kingdom and near contemporaries like India have it in their constitutions, Nigeria could as well include it in hers, especially because it was identified with some merits. The influence of contagion in politics should not be overlooked when one considers its impacts in the making of many coup-de-tats and military regimes in sub-Saharan Africa between the 1950s and the 1980s. CHAPTER THREE LEGAL AND INSTITUTIONAL FRAMEWORK OF IMMUNITY IN GOVERNMENT 3.1 LEGAL FRAMEWORK FOR IMMUNITY IN NIGERIA 3.1.1 Immunity Clause Under The 1999 Constitution To ensure the dignity of the offices of the Chief executives, the need to put in place what guarantees and safeguards this protection under the 1999 Constitution cannot be overemphasized. Thus, this chapter seeks to explain the rationale for the doctrine of immunity and to examine the scope of the doctrine under section 308 of the 1999 Constitution with the exceptions or limitations thereto. In Nigeria, the Constitution is regarded as supreme. The purpose of this work is to discuss the implication of Supremacy of the constitution in the Nigerian situation which provides the ultimate framework for the doctrine of immunity. Supremacy in this context can be understood as the position of the constitution having the superior or greatest power or authority. Due to the fact that pursuant to section 2 of the Constitution Nigeria is a federal republic, therefore it has a written constitution. Generally, it is pertinent to note that a written constitution is supreme, the Nigerian constitution provides for its supremacy in some of its provisions. But before we state those provisions it is important that we note that it is true that the constitution made provision for immunity clause but that does not mean that these people that immunity was provided for in the constitution are superior or higher than the constitution. The first Section of the 1999 constitution that deals with the supremacy of the constitution is section 1(1). It provides thus: “This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal republic of Nigeria”. By the provisions of this section it means that the provisions of the constitution is binding on all persons in Nigeria, the status of the person does not matter. Even the number one citizen of the country, the President, is bound by the constitution. There are numerous case laws where the actions of the president were declared unconstitutional and of no effect whatsoever. The celebrated case of AG Lagos v. AG Federation is a popular one and it will be used to buttress this point. In this case, it was declared that the actions of the president in withholding the federal allocation to Lagos state was in contrast to Section 162 (5) of the constitution, thus they were unconstitutional. From this case we see that although the president as the chief executive officer of Nigeria has been granted powers to make certain decisions it should not be ultra vires to the provisions of the constitution and it should be noted that though the president has certain powers it does not make him superior to the constitution. Another case we should consider is that of Inakoju v Adeleke. In this case, some members of the Oyo state house of assembly purported to remove the Governor of the state. However, they did not follow the procedures laid down by the provisions of Section188 of the Constitution. Due to this, the Supreme Court, through a leading Judgment by Tobi JSC declared their actions null and void. From the foregoing cases, it can be seen that acts which contravene the provisions of the constitution will be declared null and void because the constitution is supreme and shall have binding force on all persons and authorities throughout Nigeria. This still brings us back to the point that the constitution is supreme over everyone not even one person is left out especially in Nigeria. Immunity as we all know is not a stranger to the African continent especially in Nigeria, although there was no written constitution that laid down the powers of the king but everyone knew that there were powers that the king possessed that were not questioned. Using our Yoruba tribe as a case study the ‘Oba’ was presumed and is still known to have so much powers to take certain decisions on his own without fear of being questioned , there is a Yoruba adage that explains this power , “you cannot ignore a call from the king with an excuse that you were consulting your oracle, if the result comes out positive can it still not be contradicted by the king?” there is a similar adage too “if on being ordered by the king to appear before him and your excuse was that you were consulting the oracle; is it not the king that still owns both you and the oracle?” 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, they might even be given death sentences. An example is the Osun State monarch who was standing trial for alleged rape of a corps member. It is from this historical background (especially the colonization experience) that we 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 made similar provisions. In the 1979 Constitution also similar provision was made for immunity, even the still born 1989 constitution had the immunity clause. In fact, under the 1979 Constitution , in the case of Chief (Mrs.) Funmilayo Ransome Kuti v Attorney General of the Federation, the Supreme Court dismissed the appeal filed by the plaintiff on the basis of the maxim ‘rexnon potest precarre’ (the King can do no wrong). With respect to the internal affairs of Nigeria in general, and particularly Nigerian constitutions, the idea of granting immunity to elected political -office-holders has a long history. In the 1963 Constitution of Nigeria, provisions for immunity for the President, Vice-president, Governor and Deputy-Governor of a region existed under Section 161 Subsection 1(a-c) and Subsection 2. Under the 1979 Constitution, they existed under Section 267 Subsections 1 (a-c), and Subsections 2 and 3. Under the 1989 Constitution, they were codified under Section 320 Subsections 1(a-c), 2 and 3 (Federal Military Government of Nigeria, 1989) while the 1999 Constitution has these provisions in Section 308 Subsections 1(a-c), 2 and 3 (Federal Government of Nigeria, 1999). With particular reference to the 1999 Constitution, the provisions are as follows: Section 308 Subsection (1): 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. Subsection 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. Subsection 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 3.1.2 Money Laundering (Prohibition) Act Money laundering is regarded as a crime in many countries including Nigeria and so many definitions has been given regarding this subject matter, although it is regarded as financial crime but money laundering has many forms, but it is pertinent to know the meaning of the subject matter. ‘Money laundering’ is the process of changing large amounts of money obtained from crimes, such as drug trafficking, into origination from a legitimate source. It is a crime in many jurisdictions with varying definitions. It is a key operation organized crime and the underground economy in US law it is the practice of engaging in financial transactions to conceal the identity, source, or destination of illegally gained money. The common law definition is wider; the act is defined as "taking any action with property of any form which is either wholly or in part the proceeds of a crime that will disguise the fact that that property is the proceeds of a crime or obscure the beneficial ownership of said property". In the past, the term "money laundering" was applied only to financial transactions related to organized crime but today its definition is often expanded by government and international regulators such as the US office of the comptroller of currency to mean "any financial transaction which generates an asset or a value as the result of an illegal act", which may involve actions such as tax evasion or false accounting. In the UK, it does not even need to involve money, but any economic good. Courts involve money laundering committed by private individuals, drug dealers, businesses, corrupt officials, members of criminal organizations such as the mafia, and even states. In Nigeria this subject matter is not alien to Nigerians as there has been series of cases of money laundering in the nation by different set of people especially those in the political sector due to the catastrophe that this crime has caused in the world including the nation (Nigeria) they thought it wise to establish anti money laundering laws that criminalizes money laundering. Money laundering is defined in the Money laundering (Prohibition) Act of 2011 (As Amended) as "when a person in or outside Nigeria directly or indirectly conceals or disguises the origin or; converts or transfers, removes from the jurisdiction; acquirers, uses, retains or takes possession or control of; any fund or property, knowingly or which he/she should reasonably have known that such fund or property is, or forms part of the proceeds of an unlawful act." A body corporate on the other hand is liable on conviction, to a fine of not less than 100% of the funds and properties acquired as a result of the offence committed, and a withdrawal of its license. Where the body corporate persists in the commission of the office for which it was convicted in the first instance, the Regulators may withdraw or revoke the certificate or license of the body corporate. According to the United States Treasury Department; “Money laundering is the process of making illegally-gained proceeds (i.e., "dirty money") appear legal (i.e., "clean")”. Typically, it involves three steps: placement, layering, and integration. First, the illegitimate funds are furtively introduced into the legitimate financial system. Then, the money is moved around to create confusion, sometimes by wiring or transferring through numerous accounts. Finally, it is integrated into the financial system through additional transactions until the "dirty money" appears "clean". Under the Nigerian law there are some acts which constitute money laundering and there are novel provisions spelt out in different sections of the Act. Section 1 of the Act makes it illegal for any individual to accept or make any cash payment that exceeds N5,000,000.00 (Five Million Naira) . This means that every cash transaction over N5m must be done via a financial institution. Likewise, corporate institutions shall not make or accept any cash payment of a sum exceeding N10,000,000.00 (Ten Million Naira) except in a transaction through a financial institution. The Act also provides in sub section 3 that any individual who is transporting cash or negotiable instruments in excess of US $10,000 or its equivalent must declare this to the Nigerian Customs Service. Non declaration of the funds or false declaration s an offence that is punished upon conviction by the individual forfeiting the funds in question, or to imprisonment of not less than 2 years or both. In Nigeria there are notable cases of money laundering and they include: Federal Republic of Nigeria v. James Ibori & 5 others, Tafa Balogun v EFCC, Lucky Igbinedion, the former governor of Edo State was accused by EFCC of embezzling about 4.4 billion Naira and money laundering. Corporate fraud refers to political and business scandals which arise with the disclosure of malpractices by trusted executives of large public companies. This includes misusing or misdirecting funds, overstating revenues, understating expenses, overstating the value of corporate assets or underreporting the existence of liabilities, sometimes with the cooperation of officials in other corporations and affiliates. A notable corporate fraud case is the case of Cadbury Nigeria Plc. The company was found to be falsifying its financial and accounting reports by inflating its profit figures by millions of Naira. The company was fined for publishing misleading accounts for a number of years in order to boost its profit. In IGP v. Mandilas and Karaberis and Anor, the court held liable the company and its manager for the offence of stealing. Financial corporate fraud involves substantive amounts of money and are geared towards maintaining or increasing the share price of the perpetrating companies the stock exchange market. Different forms of corporate fraud include: bribery and corruption, theft of cash, physical assets and confidential information, misuse of accounts, procurement fraud, payroll fraud, financial accounting misstatement, inappropriate journal, vouchers, suspense account fraud, false employment credentials and frauds. The money laundry offences as stated by section 16 of the Act include thus: Money laundering offences 16. (1) Without prejudice to the penalties provided under section 15 of this Act, any person who- (b) destroys or removes a register or record required to be kept under this Act; (c) carries out or attempts under a false identity to carry out any of the transactions specified in sections 1 to 5 of this Act; or (d) makes or accepts cash payments exceeding the amount authorized under this Act; (e) fails to report an international transfer of funds or securities required to be reported under this Act; or (2) A person who commits an offence under subsection (1) of this Section shall be liable on conviction- (a) in the case of an offence under paragraphs (a) to (c), of subsection (1) to imprisonment for a term of not less than 2 years but not more than 3 years or to a fine of N500,000 and not more than N1,000,000; (b) in the case of an offence under paragraph (d), a forfeiture of 25% of the excess above the limits placed in section 1 of this Act; (c) in the case of an offence under paragraphs (e) and (f) where the offender- (i) is an individual, a fine of not less N1,000,000 or not more than N3,000,000 or a term of imprisonment of not less than 2 years or not more than 3 years or to both, and (ii) is a financial institution or anybody corporate to a fine of not less than N3,000,000 or more than N25,000,000. (3) A person found guilty of an offence under this section may also be banned indefinitely or for a period of 5 years from practicing the profession, which provided the opportunity for the offence to be committed. 3.1.3 Criminalization of Corruption under the Criminal Code When we hear the word corruption many people apportion it to a particular set of people also some view corruption from the angle of bribery only, but there are different forms of corruption therefore this section will expose us to the meaning of corruption it’s forms and we will also see that the Criminal code criminalizes corruption. There is no generally acceptable definition of what amounts to corruption that will be acceptable to all disciplines. It has been defined as,” An act done with 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 wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others” . Corruption can also be viewed as the misuse of public office for private gain. It encompasses abuses by government officials such as embezzlement and nepotism, as well as abuses linking public and private actors such as bribery, extortion, influence peddling, and fraud. Corruption arises in both political and bureaucratic offices and can be petty or grand, organized or unorganized. Corruption is a form of dishonesty or a criminal offence which is undertaken by a person or organization that is entrusted with a position of authority, in order to make illicit benefits or the abuse of power for one’s personal gain. From this last definition of what corruption is corruption is not just accrued to one person a group of persons can be corrupt, and for someone or a group of people to be corrupt it means that a certain responsibility has been handed over to them and they possess some kind of power over others to make decisions that will either affect the others positively or negatively, so the above sentence technically means that corruption evolves with power and by power it involves any form of power or authority. For some people, the word corruption invokes the image of a government minister secretly accepting millions from a company in exchange for a public contract, or motorists paying off traffic police to avoid speeding tickets in all when they hear the word corruption goes to bribery. Bribes large or small, are the most well-recognised type of corruption, but other forms also exist. We will also consider nepotism or cronyism, these are practices where officials extend preferential treatment – such as access to jobs, or other resources and services – to their family members, or friends and associates. Let us also picture the finance manager who embezzles company funds that had been entrusted to her care. The concept of corruption isn’t alien to the Nigerian economy with the return of democracy, corruption has once again occupied the front burner in our national discuss. Due to repressive Decrees and Edicts muzzling a free press, past military governments in Nigeria have discouraged any serious attempt to expose or exorcise the scourge through the medium of a free press. An example of such repressive law is the Public Officers (Protection Against False Accusation) Decree. The Decree sought to punish any person who makes an embarrassing accusation against any public officer whether such accusation is true or false. Let’s picture it that situation, imagine disobeying a decree and its consequences and now with this particular decree protecting public officers the consequences will be so grave. In the face of such a law, it was indeed difficult for any Nigerian, especially journalists, to expose corrupt practices. Consequently, the vice grew in leaps and bounds. Indeed, the vice was elevated to an art when the expression, “settlement” was coined as a euphemism for corrupt practices by the general public especially during the regime of the maximum dictator, General Ibrahim Babangida. The regime of Ibrahim Babangida adopted the vice as an official government policy by buying cars for officers and men of the Nigerian Armed Forces without any legal basis for it. This policy was generally referred to as “IBB spirit” by the rank and file of the armed forcesThe “IBB spirit” received judicial condemnation in the case of The Nigerian Air Force v Ex-Wing Commander L.D James, where Onu JSC had this to say, “the court below preferred to believe the evidence of one of the accused persons of the usual practice in the armed forces of giving gifts in “IBB Spirit”. A gift in the IBB spirit given outside and in excess of lawful authority is clearly illegal, particularly procured in the instant case, through fraudulent means” . A dubious attempt was made by that regime to address the problem when it set up the National Committee on Corruption and Other Economic Crimes under the chairmanship of a retired Justice of the Supreme Court, Kayode Eso. The Committee made far-reaching recommendations, including the setting up of an independent commission agency against corruption. The report of the Eso Committee, revolutionary as it was, was never implemented. Considering the fact that that regime was itself steeped in corrupt practices, it is not surprising that the government never implemented the report. Viewed against the fact that General Ibrahim Babangida spent eight uninterrupted years as Nigeria’s maximum ruler, the problem then becomes very enormous. The magnitude of the problem can then be better appreciated. There are different causes of corruption which will be highlighted briefly. The direct involvement of government in economic activities is an invitation for corruption to thrive. Government has no business in business. In a recent survey conducted by the Movement for New Nigeria, the movement identified inter alia, the following causes of corruption in Nigeria: A fundamentally flawed structure of the Nigeria Republic. The absence of functioning government systems in the Federation. Nepotism and tribalism in the administration of justice, running of government, and conduct of businesses. Political instability Inefficient police force and police structure. Absence of civic education and civic responsibility in the populace. Late or non-payment of wages to public employees. Like other countries Nigeria has acknowledged that corruption is a crime and has criminalized it under the criminal code. There are certain sections that criminalizes corruption they are; Section 98 (a)(b)(c)(d) which provides for official corruption on public officials inviting bribes. 3.1.4 Corrupt Practices and Other Related Offences Act The act seeks to prohibit and prescribe punishment for corrupt practices and other related offences. It establishes an Independent Corrupt Practices and Other Related Offences Commission vesting it with the responsibility for investigation and prosecution of offenders thereof. Provision has also been made for the protection of anybody who gives information to the commission in respect of an offence committed or likely to be committed by any other person. Since we have already discussed the meaning of corrupt practices in the previous section we will just highlight some provisions that is against corruption in this act. Under the Corrupt Practices and other Related Offences Act 2000 (ICPC Act) a wide range of offences are created which cover acts of corruption that can be committed by both public and non-public officers. We shall look at some of these as follows: a) Accepting or giving gratification Section 8 of the ICPC Act makes it an offence for any person to accept gratification by corruptly asking for or receiving any property or benefit, or an attempt of this. A public officer who commits any of these acts is liable to imprisonment for seven years. The provision of section 8 is impari material (i.e. the same) with that of section 98 of the Criminal Code on bribery. Section 9 of the ICPC Act cover acts of any person giving or accepting gratification through agent, by corruptly giving or procuring any property or benefit, this provision is the same as section 98A of the Criminal Code. Section 17 of the ICPC Act is on the offence of receiving gratification through agent. The section also defines what are ‘consideration’, ‘agent’ and ‘principal’. This offence attracts five years imprisonment. Section 1 of the ICPC Act has a very wide definition of the word ‘gratification’ used throughout in the Act. b) Acceptor or giver of gratification to be guilty irrespective of purpose not carried out Section 10 ICPC Act deals with any person who asks for, receives or obtains property or benefit. This provision is similar to the provision of section 98B of the Criminal Code. The difference is that under section 10 of the ICPC Act, the word ‘corruptly’ was not used to qualify the ‘asking’ or ‘receiving’. Also, section 10 of the ICPC Act only captured the provisions in section 98B(1) and excludes the one under section 98B(2) but the provision of 98B(2) is made as section 11 of the ICPC Act. Therefore, on sections 8, 9, 10 and 11 of the ICPC Act, the analysis made under bribe above as regards sections 98, 98A and 98B of the Criminal Code will apply. c) Fraudulent acquisition or receipt of property Section 12 of the ICPC Act is on fraudulent acquisition of property and the provision is almost the same as the one in section 101 of the Criminal Code, save that the provision of section 12 ICPC Act excludes the words ‘and to be fined at the discretion of the court’ contained in section 101 of the Criminal Code. Also, the punishment under the ICPC Act is stiffer, being seven years imprisonment while that of the Criminal Code is three years. Also, the proviso that, the offender cannot be arrested without warrant contained in section 101 of the Criminal Code is not included in the provision of section 12 of the ICPC Act. Section 13 of the ICPC Act is on fraudulent receipt of property and same provision is part of the one contained in section 427 of the Criminal Code, the penalty is provided under section 14 of the Act as three years’ imprisonment. Section 14 of the ICPC Act is on penalty for offences committed through postal system. This provision is remaining part of that contained in section 427 of the Code. While the offence under the Act carries a surprisingly lesser penalty of seven years’ imprisonment that of the Code is stiffer as it is imprisonment for life. d) Deliberate frustration of investigation by the Commission It is an offence under section 15 of the ICPC Act for anyone with intent to defraud, conceal a crime or frustrate the Commission in its investigation of anyone suspected of crime under the Act, by destroying or falsifying any book, document, etc., or is a privy to such acts, or, omits or is a privy to omitting any material particular from any such book, document, etc. The penalty is imprisonment for seven years. Section 16 of the ICPC Act prohibits a public officer from making false statements or returns. This attracts seven years’ imprisonment. This offence is similar to the in section 103 of the Criminal Code but that of the Code carries a lesser punishment of three years. e) Wider scope of bribery offence Section 18 of the ICPC Act makes it an offence for any person to give bribe to a public officer or for a public officer to solicit, counsel or accept gratification in respect of any act or omission which includes voting or abstaining from voting at any meeting of public body in favour or against any measure, resolution or the preventing of any official act. Receiving bribe to vote at meetings is wider that covered by the Criminal Code. Also, receiving gratification covers acts such as performing or otherwise, aiding, expediting or delaying, or hindering the performance of any official act. The punishment for this is five years’ imprisonment. This offence is wider in scope than the ones under the Criminal Code in respect of bribery. Section 19 of the ICPC Act makes if an offence for any public officer to use his office for gratification by conferring corrupt or unfair advantage upon himself or any person. The offence carries a punishment of five years’ imprisonment. f) Forfeiture of gratification Under section 20 of the ICPC Act, any public officer found guilty of soliciting, offering or receiving gratification under the Act, in addition to the punishment specified for the offence, shall forfeit the gratification and also be liable to pay a fine of not less than five times the sum or value of the gratification. Where the gratification cannot be valued, the fine to be paid is ten thousand naira. g) Bribery in respect of auctions or contracts Sections 21 and 22 of the Act, provides for offences on account of accepting bribe in respect of auctions and for giving assistance as regards contracts, etc. The provision of section 22 prohibits various acts such as, influencing execution of contracts, inflation of contract sum or price of goods and services, signing of contracts without budgetary provision, transferring or spending the sum allocated for a particular project or service on another. These offences carry punishment ranging from three to seven years imprisonment, and in some cases with additional fine of one hundred thousand or one million naira, as the case may be. h) Duty to report bribe It is now mandatory under section 23 of the ICPC Act, for a public officer to who gratification has been given, offered or promised, and any person from whom gratification has been solicited or obtained or from whom an attempt has been made to obtain from, to report the same to either at the nearest office of the Independent Corrupt Practices and Other Related Offences Commission (ICPC) or a police officer. Failure to report without reasonable excuse carries a fine of one hundred thousand naira or to a term of imprisonment not exceeding two years, or to both fine and imprisonment. Other offences specified in the ICPC Act includes dealing with property acquired through gratification – section 24, making false or misleading statement to the ICPC – section 25, attempt and conspiracy punishable as an offence under the Act – section 26. Powers of the Commission: The ICPC Act established the Independent Corrupt Practices and Other Related Offences Commission (ICPC), which have powers to receive all cases of alleged corrupt practices, under the Act, investigate and prosecute them. The Chairman of the Commission also has wide powers under sections 45, 46, 48, 50 and 51 of the Act to enhance the effective performance of the Commission. 3.2 INSTITUTIONAL FRAMEWORK 3.2.1 Economic and Financial Crimes Commission Definition of economic and financial crimes under the EFCC Act includes any form of fraud, money laundering, embezzlement, bribery, tax evasion, foreign exchange malpractices, looting and any form of corrupt malpractices, etc. The Economic and Financial Crimes Commission (EFCC) is a Nigerian law enforcement agency that investigates financial crimes such as advance fee fraud (419 fraud) and money laundering. The EFCC was established in 2003, partially in response to pressure from the Financial Action Task Force on Money Laundering (FATF), which named Nigeria as one of 23 countries non-cooperative in the international community's efforts to fight money laundering.] The agency has its head office in Abuja, Nigeria. From the late 1990’s to 2000’s Nigeria was regarded as an outcast among nations due to some people we regard as fraudsters who fraudulently obtained money from foreigners popularly known as “419” or “advanced fee fraud”. Due to this problem, Nigerians suffered untold hardships wherever they went, consequently fighting economic crime became an important problem that the government had to deal-with. However, due to the complex nature and technical development of economic crimes, the government had to set up a special commission to handle investigation and prosecution of economic crimes instead of using the regular law enforcement agents which we all know as EFCC. EFCC started work in 2003, and in 2004, there was a re-enactment of the EFCC act to tackle limitations in the 2002 Law. The role of EFCC in fighting corruption in Nigeria is clear from this quotation – “To provide financial security and provide a level playing field in the economy for all stake holders” … Here are the primary functions of the commission as specified in EFCC Act 2004. The functions are spelt out in section 6 of the Act though not all functions will be highlighted here thus, Section 6: The Commission shall be responsible for - a) the enforcement and the due administration of the provisions of this Act; b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.; c) the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority; d) the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crimes related offences or the properties the value of which corresponds to such proceeds; e) the adoption of measures to eradicate the commission of economic and financial crimes; f) the adoption of measures which includes coordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes; g) the facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes; h) the examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved; i) the determination of the extent of financial loss and such other losses by government, private individuals or organizations; j) carrying out such other activities as are necessary or expedient for the full discharge of all or any of the functions conferred on it under this Act. In all her effectiveness the commission still faces some challenges Facing EFCC’s Effectiveness The role of EFCC in fighting corruption in Nigeria has not been fully effective due to overwhelming problems such as: 1. Lack of a Special Court The reason we are asking for a special Court to try EFCC cases, is because of unnecessary delays and adjournments in the usual Courts. A special Court, will give speedy trial of corruption and financial crimes cases and give justice faster. 2. Enacting Assets Forfeiture Law The Legislature should quickly pass Assets Forfeiture Law. This will allow EFCC to seize assets of suspects of corruption and financial crimes, before they convict them to make them unable to influence results of law suits in court. 3. Inadequate Financial Support Government should increase EFCC budget. You need a lot of money to fight corruption and financial crimes. 4. Training Employees of the Commission Training staff of the commission who will investigate and prosecute the anti-corruption fight, ought to be first priority of government if they want good staff that can outwit those who commit modern economic crimes. 5. Outdated Laws The colonial masters wrote the Evidence Act in use in Nigeria in 1945, while the Penal and Criminal Codes are over 50 years old. The Legislature should amend these obsolete laws in line with modern realities. 3.2.2 Independent Corrupt Practices Commission The Independent Corrupt Practices Commission (ICPC), (in full the Independent Corrupt Practices and Other Related Offences Commission) is a Nigerian agency that was inaugurated on 29 September 2000 following the recommendation of President Olusegun Obasanjo. The mandate is to receive and investigate reports of corruption and in appropriate cases prosecute the offender(s), to examine, review and enforce the correction of corruption prone systems and procedures of public bodies, with a view to eliminating corruption in public life, and to educate and enlighten the public on and against corruption and related offences with a view to enlisting and fostering public support for the fight against corruption. The Corrupt Practices and other Related Offences Act 2000 governs the committee's activities. The commission works with other international bodies such as the United Nations Committee on Anti-Corruption (UNCAC), Transparency International, and the African Union (AU) Convention Against Corruption. Now just like the EFCC the ICPC also has various functions that has been spelt out in the Corrupt Practices and Other Related Offences Act they are; General Duties of the Commission to receive investigate complaint and prosecute offenders. It shall be the duty of the Commission- (a) Where reasonable grounds exist for suspecting that any person has conspire to commit or has attempted to commit or has committed an offence under this Act or any other law prohibiting Corruption, to receive and investigate any report of the conspiracy to commit, attempt to commit or the Commission of such offence and, in appropriate cases, to prosecute the offenders; (b) To examine the practices, system and procedures of public bodies and where, in the opinion of the Commission, such practices, systems or procedures aid or facilitate fraud or corruption, to direct and supervise a review of the, (c) To instruct, advise and assist any officer, agency or parastatals on ways by which fraud or corruption may be eliminated or minimized by such officer, agency or parastatal; (d) To advise heads of the public bodies of any changes in practices, systems or procedures compatible with the effective discharge of the duties of the public bodies as the commission thinks fit to reduce the likelihood or incidence of bribery, corruption and related offences; (e) To educate the public on and against bribery, Corruption and related offences; and (f) To enlist and foster public support in combating Corruption. 3.2.3 Nigeria Police Force The Nigeria Police is the principal law enforcement and the lead security agency in Nigeria. Designated by the 1999 constitution as the national police of Nigeria with exclusive jurisdiction throughout the country. The Nigeria Police Force is a very large organisation consisting of 36 State commands grouped into 17 zones and 8 administrative organs. The police force in Nigeria is a national body which falls under the command of the Inspector General of Police. Police officers are deployed in all thirty-six states, each of which is under the control of the Commissioner of Police for that specific state. The police force has the mandate to a) To protect the lives and properties of citizens in Nigeria b) To prevent, dictate and investigate crime c) To prosecute offenders. Nigeria Police Force was first established in 1820. In 1879 a 1,200-member armed paramilitary Hausa Constabulary was formed. In 1896 the Lagos Police was established. A similar force, the Niger Coast Constabulary, was formed in Calabar in 1894 under the newly proclaimed Niger Coast Protectorate. In the north, the Royal Niger Company set up the Royal Niger Company Constabulary in 1888 with headquarters at Lokoja. When the protectorates of Northern and Southern Nigeria were proclaimed in the early 1900s, part of the Royal Niger Company Constabulary became the Northern Nigeria Police, and part of the Niger Coast Constabulary became the Southern Nigeria Police. During the colonial period, most police were associated with local governments (native authorities). In the 1960s, under the First Republic, these forces were first regionalised and then nationalised. The Nigeria Police Force performed conventional police functions and was responsible for internal security generally; for supporting the prison, immigration, and customs services; and for performing military duties within or outside Nigeria as directed. Plans were announced in mid-1980 to expand the force to 200,000. By 1983, according to the federal budget, the strength of the NPF was almost 152,000, but other sources estimated it to be between 20,000 and 80,000. Reportedly, there were more than 1,300 police stations nationwide. Police officers were not usually armed but were issued weapons when required for specific missions or circumstances. They were often deployed throughout the country, but in 1989, well into Nigeria's second military dictatorship, Babangida announced that a larger number of officers would be posted to their native areas to facilitate police- community relations. The Nigerian Police Force was established under section 214 of the constitution of the Federal Republic of Nigeria paraphrased thus; S 214(1) there shall be a force known as the Nigeria Police Force, subject to this provision no other police force will be established for the federation. (1) Subject to the provisions of this constitution (a) The police force shall be organised in accordance with the provisions prescribed by the Act of the National Assembly (b) The members of the Police Force shall have powers and duties as may be conferred to them by law… The Police Force as enabled by the Police Act and section 4 of the Police Act stipulates the functions of the police they are; i) Maintaining public safety ii) Protecting the lives and properties of the citizens iii) To vet and approve privative schools and private investigative outfits iv) To discharge duties within and outside Nigeria as may be required under this Act or any other Law. The police force has a wide range of duties though not all were listed here, sections 23-30 of the Act also contains the powers that the police can exercise in the course of their duties they include; power to make arrest, power of public prosecutions, power to effect summons etc. 3.2.4 Judicial Institutions The Law of Nigeria consists of courts, offences, and various types of laws. Nigeria has its own constitution which was established on 29 May 1999. The Constitution of Nigeria is the supreme law of the country. There are four distinct legal systems in Nigeria, which include English law, Common law, Customary law, and Sharia Law. English law in Nigeria is derived from the colonial Nigeria, while common law is a development from its post-colonial independence. Customary Law is derived from indigenous traditional norms and practices, including the dispute resolution meetings of pre-colonial Yoruba land secret societies and the Èkpè and Okónkò of Igboland and Ibibio land. Sharia Law (also known as Islamic Law) used to be used only in Northern Nigeria, where Islam is the predominant religion. It is also being used in Lagos state by Muslims. The country has a judicial branch, the highest court of which is the Supreme Court of Nigeria. The Nigerian constitution recognizes courts as either Federal or State courts. A primary difference between both is that the President appoints justices/judges to federal courts, while State Governors appoint judges to state courts. All appointments (federal or state) are based on the recommendations of the National Judicial Council. The Federal courts are: The Supreme Court, the Court of Appeal and the Federal High Court. The State courts include: The High Court of a State, the Customary Court of Appeal of a State and the Sharia Court of Appeal of a State. Each of the states (currently thirty-six) is constitutionally allowed to have all of these courts. However, the predominantly Muslim northern states tend to have Sharia courts rather than Customary courts. The predominantly Christian southern states tend to have Customary courts and not Sharia courts. Due to the fact that the Nigerian capital (known as happy town or The Federal Capital Territory, FCT) is not a state, it has no Governor. Its courts that are equivalent to the state courts have their Judges appointed by the President and are thus federal courts. The FCT courts are: The High Court of the FCT, the Customary Court of Appeal of the FCT and the Sharia Court of Appeal of the FCT. Tier 1 Court: Supreme Court The Supreme Court of Nigeria is the highest court in Nigeria. It is based in the capital, Abuja. The Supreme Court is mainly a court of appellate jurisdiction and is the final appeal court in the country. It also has original jurisdiction in State vs. State and State vs. Federal Government cases. The Supreme Court is headed by a Chief Justice who is assisted by other Justices. The appointment of the Chief Justice and Justices requires confirmation by the presiding Senate. Tier 2 Court: Court of Appeal The next highest court is the Court of Appeal, in Abuja. However, to bring the administration of justice closer to the people, the Court of Appeal has multiple divisions (currently sixteen) in various parts of the country. The head of the Court of Appeal has the title President of the Appeal Court. The President is assisted by Justices. Only the appointment of the President of the Appeal Court requires Senate confirmation. The Court of Appeal is mainly a court of appellate jurisdiction, however it has original jurisdiction for presidential and vice-presidential election petitions. The Federal Court of Appeal is where the multiple legal systems (English, Customary and Sharia) of Nigeria converge. It is constitutionally required to have at least three Judges who are versed in customary law and at least three Judges who are versed in Islamic personal law. Judgements from the tier 2 court can be appealed to the Supreme Court (the tier 1 court). Tier 3 Court Just below the Federal Court of Appeal are the tier 3 courts. They include: (1) the Federal High Court and (2) the High Court of a stat e/FCT, (3) the Customary Court of Appeal of a state/FCT and (4) the Sharia Court of Appeal of a state/FCT. The Federal High Court is based in Abuja. In order to bring the administration of justice closer to the people it has a division in each of the thirty-six states of the country. The Federal High Court is generally a court of original jurisdiction. However, it has appellate jurisdiction from tribunals such as the Tax Appeal Tribunal. It is presided over by a Chief Judge who is assisted by other Judges. The High Court of a state/FCT is the highest English law court in a state or the FCT. The High Court of a state/FCT and the Federal High Court have similar powers. Due to the fact that there is a division of the Federal High Court in each state and that each state has its own High Court, there is usually some confusion as to which court is which. For example, in Lagos state, there is a Federal High Court, Lagos and a High Court of Lagos State (sometimes referred to as The Lagos State High Court). It is presided over by a Chief Judge who is assisted by other Judges. The Customary Court of Appeal of a state/FCT is the highest Customary law court in a state/FCT. It is presided over by a Judge who has the title: President of the Customary Court of Appeal of the state/FCT and is assisted by other Judges. The Sharia Court of Appeal of a state/FCT is the highest Sharia law court in a state/FCT. It is presided over by a Grand Khadi who is assisted by other Khadis. Judgements from the tier 3 courts can be appealed to the tier 2 court (Federal Court of Appeal). Tier 4 Courts: State Courts The lowest courts in the country are all state courts (there is no federal court in this group). They include: (i) the Magistrate Courts that handle English law cases; (ii) the Customary Courts that handle Customary law cases; and (iii) the Sharia Courts that handle Sharia law cases. Judgements from the tier 4 courts can be appealed only to their respective higher tier 3 courts (e.g. judgements from the English law Magistrates Court can only be appealed to the tier 3 English law court (the High Court of a state/FCT). Other Courts Election Tribunals There are two types of election tribunals viz.: (1) National Assembly Election Tribunals that deal with petitions from the Senate and House of Representatives elections and (2) Governorship and Legislative Election Tribunals that deal with petitions from the Gubernatorial and State House of Assembly elections. Election tribunals are set up by the President of the Federal Court of Appeal in consultation with the Chief Judges of the High Courts of the states, Presidents of the Customary Courts of Appeal of the states and/or Grand Khadis of the Sharia Courts of Appeal of the states. Code of Conduct Tribunal The Code of Conduct Tribunal is established by the Chapter C15 Code of Conduct Bureau and Tribunal Act, No. 1 of 1989 Laws of the Federation of Nigeria, 2004 with commencement date of 1 January 1991, which "provide for the establishment of the Code of Conduct Bureau and Tribunal to deal with complaints of Corruption by public servants for the breaches of its provisions. The Code of Conduct Tribunal (CCT) shall consist of a chairman and two other members, whose chairman shall be a person who has held or is qualified to hold office as a Judge of a superior court of record in Nigeria and shall receive such remuneration as may be prescribed by law. The chairman and other members of the Tribunal shall be appointed by the President on the recommendation of the National Judicial Council. The tenure of office of the CCT chairman and members shall expired when he attains the age of seventy years. A person holding the office of chairman or member of the Code of Conduct Tribunal shall not be removed from his office or appointment by the President except upon an address supported by two-thirds majority of each House of the National Assembly of Nigeria praying that he be so removed for inability to discharge the functions of the office in question (whether arising from infirmity of mind or body) or for misconduct or for contravention of the Act. A person holding the office of chairman or member of the Tribunal shall not be removed from office before retiring age, save in accordance with the provisions of the section of the Act. Judgements from the Code of Conduct Tribunal can be appealed to the tier 2 court (Federal Court of Appeal). CHAPTER FOUR IMPACT OF THE IMMUNITY CLAUSE ON THE EFFECT TO DISCOURAGE CORRUPTION IN NIGERIA 4.1 IMMUNITY AND THE RULE OF LAW The Rule of Law as the name suggests has many connotations which when put together point to the prevalence of law in the society. The rule of law is a liberty centered constitutional concept which stipulates that everything must be done in accordance with the law. It encapsulates such ideals as government according to the law, equality before the law and the independence, and autonomy of the judiciary among others. The rule of law is fundamental and prerequisite in a democratic system of government. Thus, just as one observes the rule of grammar in order to make sense in conversation, therefore a society must abide by rule of laws to maintain peace. The rule of law is therefore imperative for the maintenance of public order. It is a fundamental principle accepted as a standard not only for judging the performance of government, but also for determining which is beneficial or destructive to humanity. This concept is the bedrock of our system of justice. Being the bedrock of our system of justice, it is of great importance, so as to justify the legal order and legitimize the system of a given society. The rule of law is a principle which provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. The rule of law stands in contrast to the idea that the leader is above the law - a feature of old Roman, Nazi , and certain other past law or legal systems. Thus, no matter how arbitrary a rule is, the leader is not above the law that is what the Rule of Law entails. The Rule of Law entails that everything in the governance of man in any society must be done according to the law. It also means that the business of government should be conducted within the framework of rules that are certain and public rules and principles to avoid dictatorial tendencies because if discretionary powers are allowed, the big dawgs in government would use the powers for their own benefit to the detriment of the citizens or less privileged members of the society. Thus, the court has tried to strike a balance between discretion and the law, especially as regards the observance of the fundamental human rights as contained in chapter four of the constitution of the Federal Republic of Nigeria (1999) as amended. Therefore, in the case of Shugaba Darman v. Federal Minister of Internal Affairs , the court declared the action of the defendant who unlawfully deported the plaintiff (the then majority leader of the Bornu State House of Assembly) to Chad Republic on the allegation that he was not a Nigerian citizen. Apart from declaring the deportation illegal, the plaintiff was awarded damages of over one hundred thousand naira. Therefore, the rule of law exists to check the excesses of those in government. The rule of law also entails the equality of all citizens before the law so that each citizen has equal rights to be protected by the law and at the same time has equal to resist any infringement into his person or interests in property. This right to protect his interest is against the government and fellow citizens. The functions of law are therefore to create an ordered atmosphere in a polity, which enhance peaceful development of the state. One of the important functions of laws is that, they define the citizens’ rights and duties. No man should be dealt with wickedly either by the government or his compatriots because, by the rule of law, both the rulers and ruled are equal before the law. So, where such infringements on citizens’ rights occur, firstly, it is a clear departure from the rule of law; and secondly, it entitles the citizens free access to the judicial processes in order to ventilate their grievances. The rule of law is both a deterrent and a shield. The legal system must work properly, ensuring that justice is not unduly delayed. The Rule of law has no delight in unduly prolonged cases, a situation whereby courts adjourn cases on the cause list for over a decade which is tantamount to ‘Justice delayed is justice denied’ is no rule of law; and in a situation where for instance a report showing lawyers applying for prolonged adjournments, preliminary objections, unnecessary appeals in order to stultify the judicial process does not enhance the rule of law. Stretching further on the position of the law on equality and supremacy of the law, Yohanna A Madaki posits that the rule of law means supremacy of the law, equality of both government and governed before the law, absence of arbitrariness in government. However, it is worthy of note that for the rule of law to be supreme, the people whose conduct and affairs are regulated by such law must have participated in the making of that law either directly or through their freely and democratically chosen representative where people have input in the making of the laws with which they are governed; like in the constitutional democracy of Nigeria, where the preamble of the 1999 Constitution reads thus: “We, the people of the Federal Republic of Nigeria … do hereby make, enact and give to ourselves the following Constitution.” Otherwise such law will not be regarded and respected as supreme. In furtherance of this discourse, Dicey posits the rule of law to also mean; A formula for expressing, the fact that the law of the Constitution, the rules which in foreign countries naturally form part of a constitutional code are not the source but the consequence of the rights of individuals, as defined and enforced by the courts. To Dicey, from his proposition hereinabove stated - human right existed before the Constitution. Human rights are not creations of the Constitution but are antecedent and precede the political society. They are what make us human and are precondition to a civilized existence. The Constitution merely protects and save these existing rights. The writer agrees entirely with Dicey’s view because human rights are natural rights and accrue to us by virtue of the fact that we are human beings. Hence, the rule of law means respect for human rights. These rights could broadly be divided into political, economic and social rights. It involves respect for and protection of human rights by government, its servants and agents and by everyone in the country. Without human rights there can be no justice, and life is meaningless. Furthermore, rule of law also means respect for the decision of the Court. It then means that there should be respect for the orders, decisions and processes of the Courts. A dissatisfied party may appeal against a decision up to the Supreme Court. To underscore the importance of the judiciary and obedience to its decisions or orders Dr. Nnamdi Azikiwe had this to say “the judiciary is the bulwark of the liberty of citizens.” In the formal sense the rule of law means any ordered structure of norms in a given society. Importantly, for there to be rule of law there must be a constitutional democracy where the Constitution is rigid, supreme and above all other laws of the Land. Immunity is defined as ‘freedom from duty or penalty, an exception from any charge, duty, tax or imposition. Immunity is a right peculiar to some individual or body, an exception from some general duty or burden, a personal benefit or favour granted by law contrary to the general rule’ Black’s Law Dictionary defines immunity as: An exemption from serving in an office, or performing duties of law generally required by other citizens to perform, for instance, exemption from penalty, burden or duty, also called ‘special privilege’ Webster’s dictionary defines immunity as an ‘exception from tax, duty or jurisdiction, freedom from danger or penalty’. When we bring it back home, Chukwuma Eneh J.C. A said that: It should be noted that ‘exemption’ carries a similar meaning as immunity, so that when one is exempted from existing legal relations, he will be said to have immunity or exemption. The doctrine of immunity turns out to be the correlative of disability and the negative of liability, again, in other word; immunity is clearly analogous to disability tending to no liability. To Oladele Balogun: The word immunity sounds like a Yoruba word- ‘immuniti’. The meaning of ‘immunity’ in Yoruba means the state of being unconquerable and invincible. Section 308 of the 1999 Constitution defined immunity clause as an exemption from legal proceedings on certain political office holders. The protected persons include persons holding the office of President, Vice-President, Governor or Deputy Governor. The origin of this class of immunity dates back to the era of absolute monarchs, when it was believed that a king could do no wrong this is known as “sovereign immunity”. The purpose of immunity clause is to provide the incumbent a free hand and mind to perform the duties and responsibilities of his office without distraction from litigation. The immunity protects the dignity of the office and not the individual office holder as such. If a civil or criminal proceeding was instituted against any person before he/she became federal, state or local government chief executive, the action will abate automatically. Therefore, this immunity does not extend to acts done in abuse of the powers of their office of which they are liable upon the expiration of their tenure. It is important to note that the judiciary has absolute immunity for actions and decisions taken in their official capacity. However, experience has shown that it is not only protected officers that are corrupt in Nigeria. There are cases of corrupt practices carried out by officials who are not protected by the immunity clause. Examples are local government chairmen, directors of government institutions, ministers, and so on. These categories of persons are not protected by section 308 of the 1999 Constitution. The effect of Section 308 on proceedings against the aforementioned persons render such proceedings civil or criminal, null and void and of no effect. In Industrial &Commercial Serving Nigeria Ltd v Balton BV, it was held that once one of the parties to the suit belongs to the category of office holders named in Section 308(3), the suit must be struck out, this is the appropriate order. Also, in R v Madan, it was held that immunity need not be expressly claimed, that its existence renders the exercise of jurisdiction null and void. Thus, the Court is robbed of its jurisdiction. It is therefore no surprise that the High Court of Kaduna struck out the action instituted by the Economic and Financial Crimes Commission against Governor Joshua Dariye of Plateau State. The Court in Attorney General (Federation) v Abubakar also construed the meaning of the word ‘notwithstanding’ which was used in opening the section. It said that: When the word ‘notwithstanding’ is used in a section of a statute, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that, as used in section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said section. Thus, the above authority makes Section 308 absolute and not undermined by any statute. The immunity clause as earlier said is purposely provided to protect the aforementioned person from any civil or criminal proceedings that might want to be instituted while serving in their respective capacities. The question that arises at this juncture is whether a President or Governor can institute or continue a proceeding against any person while serving as a governor? Put in another way, can they pursue an appeal? In Tinubu v I.M.B Securities Plc, the Governor of Lagos state was the appellant in the case, the Court of Appeal adjourned the case until the appellant vacated the office. The Supreme Court upholding the decision of the Court of Appeal stated Per Kalgo J.S.C: It is my respectful view therefore that whichever way you look at it, the combined effect of paragraphs (a) and (c) of subsection (1) of section 308 constitutes a total prohibition and any step taken to proceed with the appeal now pending in the Court of Appeal is a contravention of section 308(1) of the Constitution. It should quickly be added that nothing stops a Governor or President from initiating a suit to obtain remedy from wrongs done to him. This principle was laid down as early as 1981 in Chief Victor Onabanjo v Concord Press of Nigeria, the plaintiff, the Governor of Ogun state in his personal capacity sued the defendant, publishers of Concord Newspapers for libel, Kolawole J. of the High Court held that since the Governor was not Expressly incapacitated by any provision of the Constitution, he could sue in his private and personal capacity. In the words of Oguntade J.C. A : Reading the provision of section 308 of the 1999 Constitution above, and giving the provision its ordinary interpretation, there is nothing stopping a Governor from initiating actions against other persons for reliefs in his personal capacity. It may appear rather odious and may be unfair that the same Constitution that protects a governor from being sued does not correspondingly protect other persons from the suit of the governor. But it is not for me to read into the constitution a provision not therein stated. This decision has been cited with approval in Duke v Global Excel Communications limited. This case commenced at the High Court of Rivers State. The respondent, who at the material time was the executive Governor of Cross Rivers State, instituted an action against the appellants for an alleged libelous publication in the Global Excellence Magazine. Upon service of the writ, a conditional appearance was entered on behalf of the appellants who also filed a notice of preliminary objection based on the provisions of section 308 of the Constitution, challenging the jurisdiction of the Court to entertain as constituted. The main ground of objection was that in line with the immunity enjoyed by the plaintiff under section 308, he too could not institute, maintain, or continue with any legal proceedings, including the present one in any court of law. Swayed by this submission, the trial court held inter alia that a serving Governor could not sue or be sued in his personal capacity while still in office. On appeal, the Court of Appeal, by a majority decision allowed the respondent’s appeal by holding that although a serving Governor cannot be sued, he can sue in his personal capacity while in office. On a further appeal to the Supreme Court, the decision of the Court of Appeal was upheld. From the foregoing we have seen that the concept of immunity is against the principles of rule of law. The rule of law upholds the principle of equality before the law, equality involves both the ruler and the ruled. But the meaning of immunity is exclusion, immunity excludes people from legal responsibilities because of their position. Immunity as a concept in Nigeria was supposed to be a good thing, the clause was couched to help the executives work properly without interruptions of legal proceedings, but when ruthless and untrained people are given opportunity, they go extra to misuse the opportunity for their benefit. In Nigeria section 308 was couched to help the executives work properly without hindrances, but we find out that most of these leaders commit so many crimes in the name of their office and get away with it because there is no enforcement of the law against them and even when there is one there is always a top dawg to save them from the consequences of their actions. Practically no human has instituted an action against an executive while on seat and the human being has succeeded because corruption has eaten too deep into the system and destroyed the main objective of the concept of immunity. 4.2 IMMUNITY AND THE FIGHT AGAINST CORRUPTION One argument that has caused a whole lot of uproar in the air today is the retention or removal of immunity clause in section 308 of CFRN. Some argue that the retention of immunity especially in getting rid of corrupt practices in government, misappropriation of public funds etc is unrealistic, while others say opine that since section 308 of the CFRN 1999 as amended provided for executive immunity, that the constitution should also make provisions for legislative immunity. But all these views point to one direction, which practically means that the main reason immunity was provided for is not being actualized, rather it has bred so much corruption in the land. Corruption derives from the Latin word corruptus, which means to break or destroy. Corruption encompasses any act undertaken with the deliberate intent of deriving or extracting monetary or other benefits by encouraging or conniving in an illegal activity . Corruption has pervaded all spheres of the Nigerian life from the mundane to the sublime. It has become systemic way of life of many public servants. In Nigeria, corruption has increasingly become a central issue in election campaigns and military interventions in the polity. we have been bitterly about leaders at the national level but when we bring it down to our ordinary lives whether as students or as normal individuals, some way or the other there is a trace of corrupt practices in their actions. Having explained what corruption is in the previous sections we will be considering the importance of immunity and its challenges in fighting corruption in Nigeria. Despite everything said against the immunity clause, section 308 of the constitution is well meant. Immunity clause greatly abhors corruption. Corruption hampers our country from progress. The fight against corruption is exigent and should not be selective or obstructed under any excuse of immunity. The President, or as the case may be, a governor, is not suitably placed to enjoy the luxury of time defending lawsuits, whether frivolous or meritorious, while in active duty as governor or president. Our proclivity for lawsuit knows no bounds; removal of that immunity clause from our constitution would in all probability ends up doing more harm than good to our fragile constitutional democracy. In the sense that if the president keeps going in for lawsuits there will be a slack in his duty as the president and he will not function well putting the nation or state in jeopardy. Every individual, as well as members of the opposition parties would, through frivolous lawsuits and spurious petitions, incapacitate sitting President or Governors as the case may be, without regard to judicial ethics or the concerns of Nigerian voters. In the process, take them off course from real and purposeful governance. In essence, executive immunity enhances harmony in the political process that would, no doubt, be eroded, if Presidents and Governors are exposed to the vagaries of our judicial system. Adding to that, arrest and trial of those protected under the section, would paralyze activities in the affected states or at the federal level, as the case may be. That was the rationale and legislative intent of section 308 of the 1999 Constitution defined as the thinking of the drafters based on public policy considerations. There is no doubt that the benefits of the Immunity Clause outweigh the defects. The defects, are traceable to the inability of those empowered with law enforcement obligations to make the Constitution live up to its true purpose as the supreme law of the land. It requires diligent performance (prosecution) as expected of true fiduciary (EFCC, Police, ICPC, and the AG). It is all about the interpretation and genuine intent to fight the ills of corruption and unjust enrichment that irredeemably wrecked a supposedly great nation-state. When wet act on the impulse of the moment and abrogate a constitutional framework that is imbued with the right ingredients to serve worthy national purpose growing our democracy and simultaneously, ensuring stability in the political system there is every possibility of destablising the government. If Presidents were obligated to justify legally each contestable action of the executive branch, they would be subjected to intolerable control and inspection by a supposedly coordinate branch and would be burdened by countless impediments to effective action. Even if criminal action charges are brought against a President, there are several conceptual problems. The president is the penultimate member of the executive arm, thereby giving him the powers to make decisions on certain matters in the interest of the public and it is because of this public interest that the President and the Governors have the opportunity to make these decisions without fear of liabilities. Justice Powel in Nixon v Fitzgerald while emphasizing on the significance for immunity relied on two arguments: (1) the President cannot make important and discretionary decisions if he is constant fear of civil liability and (2) Diverting the President’s time and attention with a private civil suit affects the functioning of the entire federal government thereby abrogating the separation of powers mandated by the constitution. Nwabueze is perhaps, the most emphatic African voice on this point. It is his opinion that the immunity granted to the President for instance: is for the office and not for the man…It is the majesty and dignity of the nation that is at stake. To drag an incumbent president to court and expose him to the process of examination and cross examination cannot but degrade the office. The affront to the nation involved in this could be easily perceived if it is a foreigner temporarily resident in the country were to take its president to court for, say, a breach of contract, and attempt to discredit him in cross-examination as a liar and disreputable person. It makes no difference that the complainant is a national. The interest of the nation in the preservation of the integrity of its highest office should outweigh the inconvenience to the individual of the temporary postponement of his suit against the president. Nigerian Courts have also commented on the rationale. In Chief Collins v Sam Mbakwe , the Supreme Court noted per Kayode Eso J.S.C: I think the purpose of section 267 of the 1979 Constitution is clear. It is to prevent the Governor from being inhibited in the performance of his executive functions by fear of civil or criminal litigation during his tenure of office. Again, in Alamieseigha v Yeiwa, the Court of Appeal noted that: “The intendment of the section is to bar any proceedings, civil or criminal which will have the effect of interfering with the running of the office to which any of them was elected…” Thus, the importance of the immunity clause cannot be over emphasized, due to the impact it plays in the stability of executive arm of government. Thus, we can say that the immunity clause is not the problem but the persons that are immune are using it as an umbrella to shield themselves from the law. If an offence is established against the President or Governor, it can ultimately lead to his /her removal via impeachment. In essence, incumbent President or Governor must only be removed from office through an impeachment before being subject to the criminal process. The Chief Executives should not be taken from duties that only they can perform unless and until it is determined by the parliament that they are to be relieved of those duties. The President or a Governor can be swiftly removed from the office for gross misconduct which includes the commission of a crime. Category of impeachable offenses is not limited to abuses of official power. In line with the aforementioned point, impeachment process is better suited to the task because it is fast and efficient. It will be done by the representatives of the people because the whole country or the entire state will be involved in the process. In addition, it is faster than a criminal trial and there is no appeal from the verdict of the assembly. Again, once the executive is removed, he can then be prosecuted and his removal will facilitate effective political administration of the state and place the political system on a healthy course. The retention of the Immunity Clause in the 1999 Constitution is justified in that prosecution of a sitting President or Governor prior to impeachment would create serious practical difficulties and interruption in political administration. If the Immunity Clause is removed from the 1999 Constitution, it would definitely be a difficulty to arrive at the point the President or the Governor could be impeached; could it be while the criminal proceedings are going on against him/her or after his/her trial and conviction? If the public officer is to be presumed innocent until found guilty which must be proved beyond reasonable doubt, then, he/she cannot be removed during the pendency of criminal proceedings. In view of this, process of his/her removal cannot proceed until a court had resolved a variety of complicated threshold legal questions and hold the chief executive criminally liable. It is important to note that a criminal trial in court can take several months or years to conclude and the accused has the right of appeal. In this way, a President or a Governor may complete his term before he is finally convicted. At the same time, the President or the Governor may spend a considerable amount of his time in office meeting with his legal team to prepare a defense to the criminal allegations against him/her. Hence, putting aside the possibility of criminal confinement, the severity of the burden imposed upon the President or the Governors by the initiation of a criminal prosecution and also from the need to respond to such charges through the judicial process would seriously interfere with their ability to carry out their functions. An individual's mental and physical involvement in the preparation of his defense both before and during any criminal trial would be intense; the same applies to either the President or the Governor of a state since they are also human. The process contemplates the defendant's attendance at trial and, indeed, his right to confront witnesses who appear at the trial. The retention of the Immunity Clause in the 1999 Constitution is justified because its removal does not favor public policy. The President and the State Governors are elected directly through a general election. However, a criminal trial of a sitting President or a Governor will confer upon a single Judge, the power to overturn the wish of the people as demonstrated in the general elections. Allowing criminal proceedings against a sitting executive would aggrandize judicial power and narrow constitutionally defined executive powers. Public policy disfavors prosecution of a sitting executive. Hence in order to fight corruption, the people who will act as the law enforcement should be honest people not people who are easily tossed about because the problem is not the immunity as immunity is for the office not the person. As we have stated earlier even after they have served their term in office immunity does not cover them anymore, godfatherism does that. Thus, in fighting corruption proper human beings should be instituted as law enforcement agents and godfatherism should be tackled. 4.3 EXAMINATION OF IMMUNITY CLAUSE IN FOREIGN JURISDICTIONS We will be examining immunity clause in foreign jurisdictions and we will be considering or using the U.S.A and U.K as case studies. Immunity Clause in the United States of America Unlike the case in Nigeria’s Constitution, the immunity clause is not enshrined in the Constitution of the United States of America. Notably, as a common law principle, the courts have recognized certain types of executive immunity. The President has absolute immunity from civil liability for his official acts. The leading case on this is Nixon v. Fitzgerald. In November 1968, Ernest Fitzgerald, an air force management analyst testified before congressional sub-committee that aerospace developmental projects would necessitate an increase in cost of over US$2 billion. In January 1970, the Pentagon fired him in a cost-saving re-organization. Fitzgerald, who believed he was fired from his defence department job in retaliation for testimony in which he had criticized military cost overruns, sued President Nixon and some of his administrative officials for violating his First Amendment and Statutory Rights. The United States Supreme Court in its lead judgment read by Justice Powel held that the President is entitled to absolute immunity from civil damage actions for all acts within the “outer perimeter” of his authority. The Court held that since the President has authority to prescribe the manner in which the business of the Armed Forces will be performed, including the authority to dismiss personnel, Nixon was immune from liability for firing Fitzgerald even if he caused it maliciously or in an illegal manner. However, the President does not have immunity at all for acts that are completely unconnected with his official duties. In Clinton v. Jones, Paula Jones brought a suit for private damages against President Bill Clinton while he was in office. Jones claimed that while she was by the State of Arkansas and Clinton was Governor of Arkansas, he made sexual advances to her. Clinton contended that as President of the United States of America, he should have temporary immunity to last while he is in office against virtually all civil litigations arising out of events that occurred before he took office. The court, unanimously rejecting the contention, held that no immunity of any kind is expressed in the constitution and that by the decision in the Fitzgerald case, unofficial acts such as the one this case was based on are not within the perimeter, not even the outer perimeter of the President’s official responsibility. The American President is also not immune from court processes. The President could be subpoenaed to produce relevant documents in criminal matters. In United States v Nixon, in March 1974, a federal grand jury indicted seven Nixon aides on charges of conspiracy to obstruct justice and other Watergate-related offences. The President was named as an un-indicted co-conspirator. The Watergate Special Prosecutor then persuaded the federal trial court to issue a subpoena duces tecum to the President requiring him to produce various tapes and documents relating to certain meetings involving the President. These documents and tapes were to be used during the trial of the indictments. The President released some of the tapes but refused to produce the tapes themselves and moved to quash the subpoena. The trial court rejected the President’s claim of privilege. On appeal, it was held that the President is amenable to a subpoena to produce evidence for use in a criminal case despite the general immunity. The court noted that neither the doctrine of separation of powers nor the need for confidentiality of high-level communications without more, could sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances. From the exposition above, the United States of America practices qualified executive immunity. The President is only immune from civil liability for acts done in the discharge of his official duties. Now we will be looking at immunity in the UK, when doing that we will be examining the UK State Immunity Act 1978. The absolute immunity doctrine has been the traditional position in England until after 1945, an examination of the case law indicates increasing judicial misgiving. The confirmation of the absolute immunity doctrine in the Parlement Belge was followed for over 50 years but there were several opinions on it. The matter came before the Court of Appeal in The Porto Alexandre case , which concerned a writ issued against a Portuguese requisitioned vessel for non-payment of salvage charges. A Court of Appeal upheld the ruling of Hill J that immunity could be claimed simply on the State Immunity Act 1978, enacted to provide a code as to the circumstances in which immunity might be granted. It came into effect on 22 November 1978 and is not retrospective; it therefore follows that cases will come before the courts where the legislation does not pertain either because the events took place before the operative date or because the facts come within one of the exceptional situations where the legislation does not apply. The purpose of the legislation was to enable the United Kingdom to ratify both the 1926 Brussels Convention on the Unification of Certain Rules relating State-Owned Vessels and the 1972 European Convention on State Immunity which was signed by seven countries including the United Kingdom, the legislation became operational by 11th June 1976. It is arguable that the legislation would be sufficient to meet the United Kingdom’s obligations under the draft of the International Law Commission, should that document one day enter into force. Another important objective was to ensure that the United Kingdom as a center of trade was not damaged by rules that were thought to be unfavorable to trading interests. The legislation begins with the general principle that a state will be immune from the jurisdiction of the courts of the United Kingdom save in respect of exceptional situations listed in Sections 2-11. Section 2 of the legislation provides that a state shall not have immunity if it submits to the jurisdiction after the dispute giving rise to the proceedings has arisen or where there is a prior written agreement. The effect of this provision is to set aside the old common law rule that a state could not agree to submit to the jurisdiction in advance. Thus, Saville J was able to rule in A Company Ltd v. Republic of X that a written submission in advance could on its construction extend to both process and to pre-judgment attachment. However, a choice of law clause in favour of the law of the United Kingdom does not constitute a submission. Section 2(3)(a) provides that a state is deemed to have submitted if it has instituted the proceedings, and normally admission will arise if the state has intervened in or taken any steps in the proceedings. However, there will be no submission if the purpose of intervening is to assert immunity or to claim an interest in property in circumstances where the state would have been able to waiver. Then, there must be clear evidence of an intention to waive so that a written letter to an employee indicating that she might have certain right under United Kingdom employment could not be construed as being capable of creating a prior written agreement, similarly as a matter of construction, a letter sent by a medical officer to an industrial tribunal did not constitute submission to the jurisdiction. Any submission will be deemed to extend to any appeal arising out of the action but not to any counterclaim unless it arises out of the same legal relationship or facts as the claim. Any submission to the jurisdiction must be by a person having the capacity to act, such as the head of diplomatic mission or by an authorized agent. Any question on possible immunity should in principle be decided at the outset of the hearing before the court at first instance examines the merits of the case. It would seem that if a tribunal at first instance fails to consider the question of immunity because of the absence of relevant evidence then the appellate body is under a duty to consider the matter and is not precluded by rules restricting the submission of new evidence on appeal. It is arguable that the most important provision of the legislation, which provides that a state will not be immune in respect of “a commercial transaction” or; …an obligation of the State which by virtue of a contract (whether a commercial transaction or not) fails to be performed wholly or partly in the United Kingdom. In these circumstances the definition of a “commercial transaction” is central and this is provided by s3(3) which defines a commercial transaction as: (a) any contract for the supply of goods and services; (b) Any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c) Any other transaction or activity (whether of a commercial, industrial, financial professional or other similar character) into which a state enters or in which it engages otherwise than in the exercise of sovereign authority. It is clear that the draftsman has chosen to avoid the distinction between acts jure imperil and acts jure gestionis. It is also evident that matters falling within are automatically commercial transactions while for the purposes of this must be “otherwise than in the exercise of sovereign authority”. In respect of this latter expression Evan J., in Australia and New Zealand Banking Group v. Commonwealth of One of the difficulties in this context will be whether an analysis of conduct is to be subject to minute dissection or is one entitled to take a broad view of what constitutes “sovereign activity”. Although the case did not concern commercial dealings this division of opinion is to be found in the speeches in Kuwait Airways Corporation v. Iraqi Airways Company; this latter case indicates that conduct has to be analyzed in detail over time so that subsequent conduct with third parties may deprive the transaction of the protection of “sovereign activity”. While it is clear that a United Kingdom judge will simply follow the words of the State Immunity Act 1978 some guidance can be obtained by observing the practice in the United States where the restrictive approach was adopted much earlier. The relevant United States legislation defines a “commercial activity” as “a regular court of commercial conduct or a particular commercial transaction or act”. The approach of the United States courts has been to focus upon the nature rather than the purpose of the act and they have not been slow to find that an activity is in substance, commercial. Thus, attempts to engage in price fixing by states or the operation of an insurance monopoly will constitute commercial activities as will the issuing of commercial bonds. In like terms, the conduct of a state airline or the purchase of cement will be regarded as commercial activities as indeed will the issuing of foreign treasury notes. Particular difficulty has been encountered in the United States in respect of the activities of state-controlled or state-owned banks. In such cases, a distinction has emerged between those cases where the state bank acts as an internal regulator in which the act of state doctrine may produce jurisdiction and those instances where the state bank is engaged in normal operations within capital markets; in the latter instance the activity will be regarded as commercial and not subject to immunity. 4.4 LESSONS FROM OTHER JURISDICTIONS From the previous section we see that they still have the same view about immunity, for instance in the US immunity is recognized but unlike the Nigerian setting where the section for immunity is section 308 of the CFRN (1999) as amended, in the United States immunity though granted to the executives is not enshrined in their constitution. There is another peculiar thing about immunity in the United States it is the fact that unlike section 308 of the constitution where the Presidents, Vice President, Governors, Deputy Governors are granted immunity from civil and criminal proceedings arising from their positions, in the United States they are being granted immunity against civil liabilities from his official acts. Though not enshrined in the constitution immunity is recognized and the common thing is that immunity was created for the position and not the person in the position. Then in the United Kingdom though immunity was recognized but the type of immunity that was recognized was sovereign or restrictive immunity it is also known as state immunity. Sovereign immunity was derived from British common law doctrine based on the idea that the King could do no wrong. In the United States, sovereign immunity typically applies to the federal government and state government, but not to municipalities. The first privileges and immunities clause are found in Article IV of the United States Constitution. This clause says that 'The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.' The framers added this clause in hopes of encouraging travel between the states. They wanted U.S. citizens to feel secure in their travels between states and know that they would be guaranteed the same general rights everywhere in the U.S. Throughout history, the Supreme Court has narrowly interpreted which rights are provided through Article IV. Some of the rights that are protected include the right to acquire and possess property, the right to bring and defend actions in a court of law, and the right to receive the same tax treatment as the citizens of the taxing state. ` There's a second privileges and immunities clause found in the Fourteenth Amendment to the Constitution. This clause says that 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' This clause was added after the abolition of slavery and as a part of the Fourteenth Amendment's equal protection guarantees. Though slaves were now free under the federal law, Congress wanted to ensure that the states respected the new rights and freedoms of the former slaves. It's helpful to remember that not all states were in favor of abolishing slavery. Despite the apparent limitations of the Eleventh Amendment, individuals may, under certain circumstances, bring constitutional and statutory cases against states. In some of these cases, the state's sovereign immunity has either been waived by the state or abrogated by Congress. In other cases, the Eleventh Amendment does not apply because the procedural posture is such that the Court does not view them as being against a state. As discussed below, this latter doctrine is most often seen in suits to enjoin state officials. However, it has also been invoked in bankruptcy and admiralty cases, where the res, or property in dispute, is in fact the legal target of a dispute. CHAPTER FIVE SUMMARY, CONCLUSION AND RECOMMENDATIONS 5.1 SUMMARY The concept of immunity clause was enshrined in section 308 of the constitution in order to create a smooth running of government by the executive without interference of litigations or law suits arising out of a criminal or civil liability from the position. We have seen that immunity is not an alien to any society and it didn’t come into existence because the constitution said so, thus immunity as a concept has been in existence but for the purposes of this study we focused on immunity clause in the constitution and its effect in fighting corruption in Nigeria, going through the work we will notice that the main purpose of the immunity clause was to ensure the smooth running of government without interruptions, we also discovered that immunity was created for the position not the person. There have been so much arguments against or for immunity but no matter how much arguments that are made and no matter the sensibility in the argument for the removal or retention of the immunity clause, the immunity clause was created for the position and not the person. Many think that it is because of immunity that many corrupt leaders get away with their crimes but truth be told, it is no fault or immunity is not to be blamed for the lack of competent agencies that fight crime neither is immunity to be blamed for nepotism and godfatherism that has eaten deep into the system. We also found that during this research that immunity in Nigeria is enshrined in the constitution, therefore any law that is inconsistent with the constitution is void and of no effect, also immunity was also made in the interest of the citizens, because when the President is paraded around every time because of litigations arising either out of a criminal or civil liability there are several interruptions that will arise out of those suits in the smooth running of the government. Immunity generally means exclusion from what everybody is meant to do because of the position he is occupying. We also looked at immunity and its contrast with certain constitutional concepts like the Rule of Law, Separation of Power, Justice and some other concepts. When we place juxtapose immunity and some of these concepts we see that there are some contrasts for instance immunity and the rule of law, there is a bit of contrasts between these two concepts while the rule of law posits equality of everyone before the law without exclusion immunity means exclusion from responsibilities especially legal ones. Immunity also respects the supremacy of the constitution as it has been enshrined in the constitution therefore any law against immunity is inconsistent with the constitution thus void. As we continued with the research, we also discovered that immunity in Nigeria has legal framework with the constitution as the main legal framework there are also institutions that were instituted to ensure that immunity is not abused, as the research progressed we saw that immunity as a concept is not in Nigeria or their constitution alone, immunity as concept or part of governance is found in other countries of the world we used the UK and US as case study. We also noticed that immunity must not be in writing for it to be regarded as immunity it is being practiced in democracy and other forms of government including dictatorship. Most countries have come together and decided that for the smooth running of government immunity is needed, the head of state or the sovereign is meant to enjoy a level of immunity associated with his acts as the head of state without having to face prosecutions in courts. However, the strict application of the immunity clause in the constitution has gotten so many responses and opinions, one of the responses is that the constitution has recognized the immunity of just the executives without recognizing the immunity of both the legislature and the judiciary. The constitution has established the doctrine of immunity in the foundations of Nigerian laws, therefore any law that is inconsistent with the doctrine of immunity either by disqualifying or qualifying the doctrine of immunity is void and with no effect. It is true that the doctrine of immunity is absolute but for the interest of the people and democracy in some cases the doctrine of immunity can be set aside especially in cases of electoral petitions The rationale is that the res in these actions will certainly be destroyed if it were to wait until the tenure of the incumbent of the particular political office before deciding if he was validly elected in the first place. Ordinary democracy is the only known limitation that ousts the immunity clause entirely. As regards the issue of corruption in Nigeria, the public opinion is that immunity should be repealed from the constitution before it spreads the menace to the legislative and judicial arm. Comparative study of the doctrine in the selected foreign jurisdictions reveals that the unwritten constitution of Britain does not contemplate immunity and the Prime Minister can and will face criminal charges if he is suspected of misconduct while in office. On the other hand, the United States constitution provides immunity for only the legislative members of the house and does not contemplate the executive or the judiciary. But the president still has immunity against proceedings that will arise out of liabilities from criminal or civil liabilities as executives, though there are still exceptions as was noted in the previous chapter. 5.2 CONCLUSIONS In analyzing the doctrine of immunity and its discussions under Nigerian constitutional law the inadequacies in the legal framework, philosophy and administration of the doctrine has been pointed out in the previous chapters. As we reviewed literatures, we found the emptiness in the policies and legislations that form the basic legal framework on the inclusion of the doctrine of immunity in Nigeria. Despite the good intentions with which the doctrine of immunity was created regarding its application on certain elected public officers the negative implications in Nigerian democracy are more than the positive outcomes for democracy and democratic consolidation. When we ask about public opinions on immunity the doctrine is associated with embezzlement, fraud and different levels of ills in the society. Ninety-eight percent of the public wants the immunity clause to be removed from the constitution because there is no strict adherence to the doctrine and its exceptions. For Nigeria to uphold and defend the fundamental principle of equal justice for all her citizens, there is need for the development of the rationale for the inclusion of absolute immunity in Nigerian law. Research in the previous chapters has shown that there is need for restructuring the institutional framework for the smooth application of the doctrine. Whether the clause is removed or not, proper emphasis should be placed on creating an environment for smooth running of democracy through true separation of powers, corruption free judiciary, formation of functional and competent public prosecution process, electoral reforms, change in value system and the promotion of good governance. 5.3 RECOMMENDATIONS Having assessed the legal and philosophical framework, this research proffers recommendations with a view to facilitating reforms and changes in the constitutional law of executive immunity in Nigeria. These recommendations ensue in the following areas: 1. There is need to revive the institutions that will ensure that the doctrine of immunity is not abused. There are has been cases where these executives have committed very heinous crimes and have gotten away with it without the proper institutions conducting proper investigations concerning the crime alleged against them. The people that are fit for the position are those who are honest and people of integrity so that they will not be easily swayed by the impact of godfatherism. 2. It is also recommended that the provisions of section 308 of the Nigeria 1999 Constitution be amended so as to exclude issues on the assets of relevant office holders so that actions can be taken against the estate of office holders whereby their official actions affect their private estates. In conditions involving assets which can be destroyed over time the courts should allow actions towards protecting the rights of private individuals to recover their losses/interests from elected officials by suing the assets of those elected officials for proprietary actions. 3. The common law principle of misconduct in office should be enacted into our laws and operate alongside immunity clause. Official misconduct in this regard should be defined to include corruption and other financial crimes and power to prosecute should be open to private individuals considering that an Attorney General who naturally has power to prosecute in these matters is appointed by the same persons who enjoy this immunity and would not be naturally expected to go against the same persons who have power to fire them. BIBLIOGRAPHY Books Amucheazi E. and Olatawura O., The Nigerian Legal System/Tribunals: An Analysis, The Judiciary and Democracy in Nigeria, National Orientation Agency (NOA), Abuja, 1998, Brock, Stephen L., Natural Inclination and the Intelligibility of the Good in Thomistic Natural Law, Vera Lex 6. 2005 Dicey, A. V., Introduction to the Study of the Law of the Constitution, (1885) Dipo Kolawole (ed.), Nigerian Foreign Policy since Independence: Trends, Phases and Changes’, Lagos: Julius and Julius Associates, 2004 Emmanuel S.I, Constitutional Law, (Larchmont NY. 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