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Gov Ambode and abuse of the Immunity Clause 13 Jun 2017

A lot of Nigerians have clamoured for the removal of the immunity clause from the Constitution. Opponents of Section 308 “Restrictions on legal proceedings” of the 1999 Constitution argue that it poses a hindrance to the fight against corruption, given that many of the people that are accused of corruption are our own elected officials, some of whom are protected by the constitutional provision.
    
I do not intend to join the debate on whether or not the immunity clause should stay. This article is an attempt to reconcile the perceived intent and purpose of the immunity clause against a specific incident involving the Lagos State Government (LASG), the High Court of Lagos State and the Otodo Gbame community in Lagos State.

On the 9th of October, 2016, the LASG announced its intention to demolish 'shanties' along waterfronts across the state. The government gave residents in the areas concerned seven days to vacate. According to the Justice and Empowerment Initiatives (JEI), an organisation that empowers poor and marginalised individuals, more than 300,000 residents in about 40 communities were going to be affected by the LASG eviction notice.

Several members of the different waterfront communities, with the support of some non-governmental organisations (NGOs), filed an action on behalf of their communities against the government, contending that the demolition would amount to an infringement on their fundamental rights. On 7th November, 2016, the court made an interim order, restraining the LASG and the Nigeria Police from carrying out any demolitions pending the determination of the suit.

A few days after the court order, a demolition exercise was carried out in the Otodo Gbame community, an Egun fishing settlement in Lekki. The LASG said the exercise, which reportedly displaced about 30,000 residents, was conducted due to a fire outbreak on 9th of November, 2016 that led to an ethnic clash between the Egun and Yoruba residents in the community. The government said the demolition was necessary in order to clear the debris caused by the fire incident. Not unexpectedly, the fire outbreak and the timing of the 'ethnic clash' raised suspicions. The government denied responsibility for the fire incident.

On the 26th of January, 2017, the court directed the parties in the suit to explore amicable resolution of the dispute and referred them to the Lagos Multi Door Courthouse (LMDC). The court also ordered parties to maintain status quo (that is 'the existing state of affairs').  After the parties attended a session at the LMDC on the 9th of March, 2017, and were asked to return for further mediation sessions on the 29th of March, the LASG carried out further demolitions in the Otodo Gbame community on the 17th and 21st of March, 2017.  

Carrying out demolition exercises during ongoing court-ordered mediation sessions is an act of utmost bad faith, which in itself should incur the ire of any court. The LASG was however additionally in breach of two court orders.

The applicants in the suit applied for committal to prison the persons involved in the demolition and the court ordered the Lagos State Governor Akinwunmi Ambode, the Commissioner of Police Lagos State, the Attorney General of Lagos State and the Commissioner of Physical Planning and Urban Development to appear before it to give reason why they should not be remanded in prison for disobeying its order.

This time around, the LASG did not deny carrying out the demolition acts. The government, however, argued that the demolitions were carried out in the performance of its duties to the larger population of the state, in ensuring that public health and safety were protected. Basically, the government's defence was that it was preventing residents from erecting 'shanties' that were destroyed in the November 2016 fire outbreak in order to maintain order and public safety.

In a rather disappointing anti-climax, the court dismissed the committal proceedings begun by the applicants. The reason was not that the court was persuaded by the bogus defence of the LASG. The case was dismissed on the grounds that the demolitions were carried out under the instruction and supervision of Governor Ambode, who enjoys constitutional immunity. Even the other persons summoned by the court were not held to be in contempt because they acted under the Governor's instructions.

Before we delve into the issue of Governor Ambode's immunity and how it did or did not interfere with the due administration of justice, it is pertinent to state that the reason given by the court for its refusal to commit other persons to prison for disobeying its orders sets a very dangerous precedent that must not be allowed to stand. Such interpretation would inadvertently give immunity to every civil and public servant once he is acting on the instructions of one of the beneficiaries of the immunity clause. The clause is not intended to cover every person that works under and for the beneficiaries but the beneficiaries themselves.  

Now to the issue of the clause itself, isn't it quite ironic and perplexing that citizens of Nigeria cannot get justice because of a provision in the constitution that is meant to protect them? One of Nigeria's most notable jurists, the late Niki Tobi, a former Justice of the Supreme Court, once said: “Good law, in my opinion, must have a human face. Good law should not patronize technicalities that will give rise or room to undeserved victories in litigation.”

Has the Nigerian constitution created a technicality that now aids executive lawlessness or was the lack of wrath and discipline in the case between the people of Otodo Gbame and LASG due to a timid interpretation of the constitution? Let's take a closer look at the provision in the constitution.

Section 308 of the 1999 Constitution (as amended), which contains the controversial provision, states inter alia: “(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 on 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.”

Subsection (2) however exempts “civil proceedings against a person to whom the section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party” from the restrictions on legal proceedings created by the clause.

Based on the different roles ascribed to the three different arms of government, the judiciary has constantly maintained that it intends to stay within its powers of interpreting and giving effect to the law, and not make or amend laws. The apex court has said, “…while the Courts have powers of interpretation of the law, it has no licence to veer into the legislative arena or constitute itself into the legislator however harsh or distasteful the piece of legislation may be…” The Supreme Court has also said, “The duty of the court is not to deal with the law as it ought to be but as it is.”

However, in carrying out its duty of interpreting the law, particularly the constitution, the main aim of the courts has always been to determine the intention of the legislature (which makes the law) and then give effect to that intention. On the several occasions that the judiciary has had to consider the constitutional provision governing the immunity clause, the courts have given the perceived reasons for the legislation to include protection of the dignity of office, to ensure freedom for the incumbent from coercive personal harassment. This is intended to protect the officeholders from distractions so they can focus on the serious business of governance, security of the state, and welfare of the people.

From the foregoing, it is not in doubt that the immunity was not intended to cover official matters. The constitution is careful to restrict the immunity to personal matters and matters affecting the officeholder personally. It is for this reason that the Governor could have been and was indeed sued in the suit filed on behalf of the various communities for the enforcement of their fundamental rights.

Why could he not be punished for disobeying court orders? One possible reason is that contempt proceedings are said to be quasi-criminal, even when they arise from civil suits. This is because prosecution of persons accused of being in contempt of court can lead to their incarceration. And by the immunity provided under the constitution, the beneficiaries cannot be arrested or imprisoned.

This raises the pertinent question of what remedy exists when the President or Vice President, Governor or Deputy Governor (who are covered by the immunity clause) – while acting in his/her official capacity – flagrantly disobeys a court order, or does any act that interferes with or undermines the administration of justice, especially in cases such as the one where the acts done in contempt of court cannot be easily set aside or undone. If the purpose of the immunity clause is to prevent the beneficiaries from being distracted from the work of governing, it cannot and should not be applied as a shield when they engage in acts that violate the dispensation of good governance.

I believe a level of legislative activism and creativity is required. Prison term should not be the only stick the judiciary can wield when the executive disobeys its orders. Our Constitution should include provisions that allow the courts to commence proceedings that could lead to the impeachment of the executive from office, if the circumstances warrant such action. There is no greater act of gross misconduct than the blatant disobedience of court orders. What better way is there to discipline an errant executive than to take what he loves the most – his power? The judiciary must not be reduced to a dog that barks but doesn't bite.