The Immunity of Some Public Officers in Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended): Whether Protects the FCT Minister?
‘Immunity’ has been defined by Ese Malemi as the exemption of a person or body from legal proceedings, or liability. See: Ese Malemi, The Nigerian Constitutional Law, Princeton Publishing Company, Ikeja, Lagos, 2006, page 446. According to the Constitution of the Federal Republic of Nigeria, 1999, (as amended)-herein after referred to as the Constitution-, in section 308, it provides thus.—(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. (2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. (3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor ; and the reference in this section to ‘period of office’ is a reference to the period during which the person holding such office is required to perform the functions of the office’.
This paper is an attempt at considering whether the immunity conferred on the public officers mentioned in section 308(3) of the Constitution (supra) whether such immunity protects the Federal Capital Territory-herein after referred to as FCT- Minister? Also, this paper is necessary as a result of the need for the law enforcement agencies to always focus their attention on whoever that is holding the office of the FCT Minister against corruption and embezzlement of public funds which relates to criminal liability even while in the office and to make such Minister to be responsible and responsive to the performance of its roles under the laws.
In my humble view, I am of the submission that the immunity in section 308(3) of the Constitution does not protect the FCT Minister from arrest, investigation, prosecution (whether in civil or in criminal prosecution), so, he is as criminally liable as an ordinary public officer in Nigeria for his alleged criminal act. Also, some corruption allegations alleged to have been perpetrated by some of the past FCT Ministers has caused the FCT a great embarrassment and collapsed the administration of the FCT. And it should be noted that the President of the Federation is the only Governor for the FCT as a State of the Federation and the FCT Minister is only an appointee of the President of the Federation just like a Commissioner of a State of the Federation is appointed by the Governor of a State. For a clearer proof, section 301 of the Constitution is clear where it provides thus ‘301. Without prejudice to the generality of the provisions of section 299 of this Constitution, in its application to the Federal Capital Territory, Abuja, this Constitution shall be construed as if— (a) references to the Governor, Deputy Governor and the executive council of a State (howsoever called) were references to the President, Vice-President and the executive council of the Federation (howsoever called) respectively ; (b) references to the Chief Judge and Judges of the High Court of a State were references to the Chief Judge and Judges of the High Court, which is established for the Federal Capital Territory, Abuja by the provisions of this Constitution ; and (c) references to persons, offices and authorities of a State were references to the persons, offices and authorities of the Federation with like status, designations and powers, respectively ; and in particular, as if the references to the Attorney-General, Commissioners and the Auditor General for a State were references to the Attorney-General, Ministers and the Auditor-General of the Federation with like status, designations and powers.’. Also, the referenced section 299 of the Constitution is also clear about the President being the Governor of the FCT where it provides thus ‘299. The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation ; and accordingly— (a) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja ; (b) all powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution ; and (c) the provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this section.’. Furthermore, the provisions of section 302 of the Constitution is clear on the power of the President to delegate some of his powers and or functions to the Minister appointed for the FCT- Abuja where it provides thus ‘302. The President may, in exercise of the powers conferred upon him by section 147 of this Constitution, appoint for the Federal Capital Territory, Abuja, a Minister who shall exercise such powers and perform such functions as may be delegated to him by the President, from time to time.’. And by virtue of section 147(1), (2) and (3) and 148(1) of the Constitution, the procedure for the appointment of the FCT Minister has also been laid down as follows ‘147.—(1) There shall be such offices of Ministers of the Government of the Federation as may be established by the President. (2) Any appointment to the office of the Minister of the Government of the Federation shall, if the nomination of any person to such office is confirmed by the Senate, be made by the President. (3) Any appointment under subsection (2) of this section by the President shall be in conformity with the provisions of section 14 (3) of this Constitution. Provided that in giving effect to the provisions aforesaid the President shall appoint at least one Minister form each State, who shall be an indigene of such State. And by section 148(1) of the Constitution, it is provided thus ‘148.—(1) The President may, in his discretion, assign to Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of government.’.
Furthermore, I have considered the provisions of the FCT Act, 2006, Laws of the FCT too which is the law establishing the FCT, which by its Long Title provides thus ‘An Act to establish for Nigeria, a Federal Capital Territory and to provide for the constitution of a Federal Capital Development Authority for exercising the various powers set out in this Act, to execute other projects connected therewith, to provide for the laws applicable to that Territory and for appeals from the Upper Area Court and the law applicable thereto; and to provide for the delegation to the Minister of Federal Capital Territory of the executive powers vested in the President and those vested in him and the Governor of a State under the applicable laws.’. (Underlined words are mine for emphasis). Noteworthy, section 19 of the FCT Act even exempts the FCT Minister from some of the powers of the President that cannot be delegated and as such, it is my submission that that it is only some of the powers delegated to the FCT Minister by the President that he performs as his appointee and such appointment does not mean that the FCT Minister is protected by the Immunity enjoyed by the President of the Federation who is the Governor of the FCT as a State of the Federation. The said section 19 provides thus ‘19. The powers delegated to the Minister under the provisions of section 1 of this Act shall not include – (a) the exercise within the Federal Capital Territory of any executive or other functions of the Federation, by the President, the Judicial Service Commission or any other Federal Government authority; (b) any power expressly excepted under any other law, instrument or otherwise howsoever.’.
Furthermore, the section 308(3) of the Constitution listed those public officers who enjoy immunity from legal proceedings which does not include the mention of the FCT Minister. The law is clear that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue. See: the case of N.E.C.O. V Tokode (2011) All FWLR 105, at page 121, paragraphs: H-B.
Finally and therefore, it is my humble submission that the Immunity conferred on the President just as it is conferred on other expressly mentioned public officers does not protect the FCT Minister. So, I hereby recommend that law enforcement agencies of government fighting corruption should also pay a rapt attention to any person who is appointed as the Minister for the FCT-Abuja, so that the public funds can be protected from embezzlement or misappropriation. Most importantly because, there have been some rumours that some of the past Ministers appointed for the FCT- Abuja, have always rendered several budgeted funds for projects in the FCT-Abuja to suffer out of corruption and embezzlement.