Astrology

CONSTITUTIONAL IMMUNITY CLAUSE AND
THE FIGHT AGAINST CORRUPTION IN NIGERIA
Sesan Fabamise*
ABSTRACT
One of the most pressing debates in Nigeria today is on the continued retention,
or removal, of the immunity clause enshrined in section 308 of the 1999
Constitution of the Federal Republic of Nigeria. Some scholars canvass for
the removal of the immunity clause because its retention, they argue, appears
ironic in view of the stance of the government to rid governance of corrupt
practices, including misappropriation of public funds. Others have called for
its retention while another set of scholars further ask that it be extended to
the leadership of the National Assembly and the States Houses of Assembly.
This latter group has said that the Senate President, the Deputy Senate
President, the Speaker of the House of Representatives and the Deputy Speaker
as well as the Speakers of the States Houses of Assembly and their Deputies
should be granted immunity under the Constitution. This article discusses the
immunity clause and its sphere, extent and limits as it relates to the officers
protected, the arguments for and against its retention in the Constitution, as
well as state practices in other jurisdictions.It concludes that it is expedient to
retain the clause, but the call in some quarters to expand it to cover the
leadership of the National Assembly and States Houses of Assembly is not
viable.
Keywords: Corruption, immunity, Constitution, sustainable development.
DOI: https://dx.doi.org/10.4314/jsdlp.v8i2.8
1. INTRODUCTION
Corruption derives from the Latin word corruptus, which means to
break or destroy.1 Literally, corruption means to break away, destroy or
depart from morality, sound ethics, tradition and civic virtues, law and
* LL.B (Lagos), LL.M (Lagos) Associate Professor and Head of Department, Public
and International Law, College of Law, Afe Babalola University Nigeria.
1 Black’s Law Dictionary, 8th Edition (Thoins on West-USA, 2004).
156 AFE BABALOLA UNIVERSITY: J. OF SUST. DEV. LAW & POLICY VOL. 8: 2: 2017
religion. In practice, corruption is any form of unethical, dishonest or

illegal conduct by a person in authority, mostly for private gain.2 The
United States Vision 2010 Committee defined corruption as “all those
improper actions or transactions aimed at changing the normal course
of events, judgments and positions of trust”.3 The Committee further
listed sixteen forms in which corruption manifests itself in Nigeria.
These include advance fee fraud (also known as 419), bribery, extortion,
nepotism, favouritism, inflation of contracts, falsification of accounts,
perversion of justice by organs administering justice, tax evasion,
smuggling and racketeering, money laundering, hoarding adulteration
of market goods and denting of measures to reduce their contents
with a view to giving advantage to the vendor, abuse of office, foreign
exchange swindling and drug trafficking, heinous economic crimes
against the state (most of the time in collusion with multinational
companies and foreigners) examination malpractices and election
malpractices.4
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.5 The benefits of corruption
may also be obtained by harassing innocent people through the abuse
of power or authority, or authority acquired by an explicit or implicit
contract with another party or through a solemn promise to act in
good faith.Corruption is also the degeneration in rules and norms of
official conduct brought about by the permeating of selfish and unethical
consideration in taking decisions by a person in authority knowing
that such decisions contravene the rules guiding the behaviour of a
person in such position.6 Generally speaking, corruption is a departure
2 Daniel Kaufmann and Pedro C. Vicente, Legal Corruption (World Bank Publication,
2005) 1-5 http://siteresources.worldbank.org/INTWBIGOVANTCOR/
Resources/Legal_Corruption.pdf
3 Report of the Committee on Homeland Security and Governmental Affairs United
States Senate to Accompany S. 3243 https://www.congress.gov/111/crpt/
srpt338/CRPT-111srpt338.pdf
4 ibid.
5 D Kaufmann and Pedro C. Vicente (n 2) 5-7.
6 See S. Igbinedion, “Workability of the Norms of Transparency and Accountability
Against Corruption in Nigeria” (2014) 3 (1) Afe Babalola University Journal of
Sustainable Development Law and Policy 150-152; Y. Akinseye-George, Legal
System, Corruption and Governance in Nigeria(New Century Law Publishers Ltd.
Lagos 2000) 9.
2017 CONSTITUTIONAL IMMUNITY CLAUSE AND THE FIGHT 157
from morality, ethics, tradition, law, civic virtues and normal duties for
private pecuniary or status gains. The common denominator in all these
is that corruption is the abuse of office, abuse of due process for personal
or selfish interest as against the common good. It is usually preceded
by financial or non-financial inducement.
Corruption has pervaded all spheres of the Nigerian life from the
mundane to the sublime.7 It has become systemic and a 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.8 The corruption phenomenon has the concomitant effect of
exacerbating poverty and has been held responsible for under-
development, increase in the cost of goods and services, the production
of substandard goods and services as well as the systemic destruction
of the society. Corruption makes the cost of doing business extremely
high.9 According to a former Secretary-General of the United Nations,
Mr Kofi Anan, corruption:
is an insidious scourge that impoverishes many countries and affects

all. It discourages foreign investments and hinders economic
growth. It is a major obstacle to political stability and to successful
social and economic development of any nation.10
7 S. Igbinedion (n 6); N Ikpeze, “Fusion of Anti–Corruption Agencies in Nigeria:

A Critical Appraisal” (2013) 1 (1) Afe Babalola University Journal of Sustainable
Development Law and Policy 148-150; Gresham Sykes & David Matza, cited in
Obi N. I. Ebbe, “Political Corruption in Africa,” in Rick Sarre, et al (eds), Policing
Corruption: International Perspectives (Lexington Books 2005) 105.
8 For example, from 1996 to 2005, the Corruption Perception Index (CPI) of the
Transparency International (TI) ranked Nigeria in the category of the six most
corrupt countries in the world. See generally Transparency International,
Corruption Perception Index accessed 28 August 2017. See also N Goodling,
“Nigeria’s Crisis of Corruption: Can the UN Global Programme Hope to resolve
this Dilemma?” (May 2003) 36 Vanderbilt Journal of Transnational Law 997,
1003.
9 Paolo Mauro, “The Effects of Corruption on Growth, Investment, and Government
Expenditure: A Cross-Country Analysis,” in Kimberly Ann Elliot (Editor),
Corruption and the Global Economy (Institute for International Economics 1997)
90-91 (suggesting an inverse relationship between corruption and investment);
Syed Hussein Alatas, Corruption: Its Nature, Causes and Functions (Gower
Publishing Company Limited 1990) 10-16; J Mbaku (ed), Corruption and the
Crisis of Institutional Reforms in Africa (The Edwin Mellen Press 1998) 54-55.
10 United Nations Office on Drugs and Crime, Global Action against Corruption;
The Merida Papers (Vienna United Nations, 20014) 1-2.
Nigeria’sunder-development, despite the abundance of human and

material resources, is because of the corruption that has pervaded the
firmament of governance for many decades. Indeed, a Prime Minister
of Britain recently described Nigeria as a “fantastically corrupt” country.
It is in the light of this that the government has decided to fight headlong
this hydra-headed and insidious corruption scourge. It is a general
opinion in Nigeria that if the government is serious about this fight
against corruption, then, no official should be immune from prosecution
for corrupt practices.
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.11 The Dictionary further
defines immunity by classifying it as absolute, congressional,
constitutional, diplomatic, discretional, etc.12
Section 308 of the 1999 Constitution of the Federal Republic of
Nigeria (as amended), popularly called the Immunity Clause, confers
immunity from legal proceedings on certain political office holders.13
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”.14 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. If a civil or criminal
proceeding was instituted against any person before he/she became
11 Black’s Law Dictionary, 8th Edition (Thoins on West-USA, 2004) Pg.1438; Oxford
Dictionary of Law, 6th Edition (Oxford University Press) 265 merely defines
immunity as freedom or exemption from legal proceedings.
12 ibid.
13 1999 Constitution of the Federal Republic of Nigeria C 23 LFN 2004.
14 It is provided for in s267 of the 1979 Constitution and S161 of the 1963
Constitution.
President, Vice-President, Governor or Deputy Governor, the action

will abate automatically.
Many scholars and commentators have argued that granting some
categories of public office holders immunity from prosecution while
the government says it is fighting corruption is ironical.15 However,
experience has shown that it is not only protected officers that are
corrupt in Nigeria. There have been 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. For example, a Director of the Police Pension
Fund embezzled several billions of the Nigerian Naira (local currency)
recently. These categories of persons are not protected by section 308
of the Constitution. The incentive for corruption is then is not the
immunity clause. Observably, the Nigerian corruption problem is not
in the immunity clause butwith a currently unidentified factor.
This article examines the utility or otherwise of the immunity
clauses in the fight against corruption in Nigeria. After this introduction,
section 2 reviews the scope, extent and limits of constitutional
immunity in Nigeria as it relates to the officers protected, the arguments
on its’ retention in the constitution. Section 3 examines how state
practices in other jurisdictions with respect to absolute or restrictive
immunity clauses can guide constitutional reform on immunity in
corruption cases in Nigeria. Section 4 discusses why it is expedient to
retain constitutional immunity clauses in Nigeria, while demonstrating
that expanding it to cover the leadership of the National Assembly and
States Houses of Assembly should be discountenanced. Section 5 is
the conclusion
2. MEANING AND HISTORICAL EVOLUTION

OF IMMUNITY
The concept of immunity stemmed from Sovereign or State Immunity,
that is, the ability of a state to invoke immunity from the jurisdiction
15 See F. Falana, “Official Corruption and Immunity in Nigeria” Premium Times (7

July 2016); C Speckbacher, Immunities from the Perspective of the CoE’s Group
of States Against Corruption (GRECO) (2014) 1-3; Transparency International,
“When Immunity Becomes a Licence to Break the Law” (29 April 2013) <https:/
/www.transparency.org/news/feature/when_immunity_becomes_a_
licence_to_break_the_law>.
of the courts of another state in circumstances where the courts of that

other state would have otherwise been vested with jurisdiction on the
subject matter.16 Jurisdiction itself concerns the power of the state to
affect people, property and circumstances and reflects the basic
principles of state sovereignty, equality of states and non-interference
in domestic affairs.17
Under Customary International Law, a foreign State or Head of
State could sue in a foreign court but could not be sued without his
consent. 18Sovereign Immunity19 is, therefore, a doctrine precluding
the institution of a suit against the sovereign (government) without
its consent. It springs from the English common law concepts that (1)
the “King can do no wrong”20 and (2) that there can be no legal right as
against the authority that makes the law on which the rights
depends.The basis of this immunity was the equality of Sovereigns
who could, therefore, not exercise power over one another – “par in
parem non habit imperium”.21 This privilege is based on reciprocity and
comity. It ensures that states and heads of states are unimpeded in the
exercise of their functions.
The main incidence of immunity is that the beneficiary is exempted
from the jurisdiction of a foreign court. Submission to jurisdiction must
be proved; such submission may be by treaty or by contract with a
private party. The property of a foreign state, such as a warship22 or an
embassy is protected by immunity. According to Watts,23 Sovereignty,
until recently, was regarded as appertaining to a particular individual
16 H.A. Olaniyan, “United Nations Convention on Jurisdictional Immunities of States

and Their Property: Why Nigeria Should Ratify and Domesticate It” (2006) 1,
Current Law Series 128.
17 Malcolm N. Shaw, International Law (4th ed), Cambridge University Press 1997)
452.
18 U.O. Umozurike, International Law (3rded, Spectrum Books Limited, 2005) 90.
19 This is otherwise called State Immunity and the two can be used interchangeably.
The doctrine, though commonly believed to be rooted in English law, is actually
rooted in the inherent nature of power and ability of those who hold power to
shield themselves.
20 From the olden days, it was believed that kings ruled by divine right and that all
rights flowed from the sovereign.
21 That is,”an equal has no power over an equal”.
22 For example, Art; 95 of the UN Convention on the Law of the Sea, 1982 provides
– “warships on the high seas have complete immunity from the jurisdiction of
any state other than the flag state”.
23 AD Watts, “The Legal Position in International Law of Foreign Heads of States,
Heads of Governments and Foreign Ministers, 247 HR 1994.
in a state and not as an abstract manifestation of the existence of

power of the state. That Sovereignty could not be made subject to the
judicial process of his country and could not be sued in a foreign court
was gradually extended to state sovereignty. Indeed, the combined
effects of the provision of Article 2(1) of the charter of the UN and the
maxim par in parem non habet imperium made it virtually difficult for
the municipal court of a state to manifest its power over a foreign
sovereign state without the latter’s consent.
The leading case of the doctrine of Sovereign Immunity is the case
of the Schooner Exchange v Mcfaddon24 where Chief Justice Marshall of
the United States’ Supreme Court declared that the jurisdiction of a
state within its own territory was exclusive and absolute.
According to Marshall C.J.,
One sovereign, being in no way amenable to another, and being

bound by obligations of the highest character to degrade the dignity
of his nation … can be supposed to enter a foreign territory only
under an express license, or in the confidence that the immunities
belonging to his independent sovereign station,though not expressly
stipulated, are reserved by implication, and will be extended to
him.25
The doctrine was equally discussed in the Parlement Belge Case26 where
the English Court of Appeal stated that every state:
… declines to exercise by means of its courts any of its territorial

jurisdiction over the person of any Sovereign or ambassador of
any other state, or over the public property of any state which is
destined to public use … though such sovereign ambassador or
property are within its jurisdiction.
In Under Erill v Hermandez,27 the court said:
Every sovereign state is bound to respect the independenceof every

other Sovereign State and the courts of the countrywill not sit in
judgment on the acts of the government ofanother done in its own
country.
24 7, Cranch 116 (1812).

25 The Schooner Exchange v. Mcfaddon, 7 Cranch 116 (1812) ep.i.
26 (1880) 5 PD 19).
27 168 US 250 (1897).
Discussed below is the case of Mighell v Sultan of Jahore, which

established that the scope of Sovereign Immunity extends to personal
acts of the sovereign.
3. ABSOLUTE VERSUS RESTRICTIVE IMMUNITY

One of the most controversial aspects of the doctrine of immunity is
whether it embraces all state acts or only some of them. When
governments restricted themselves purely to governmental functions,
it was easier to concede them immunity.
A Head of State travelling abroad is entitled to complete immunity
and any building occupied by him is extra-territorial. If he travelled
Incognito, his immunity commences as soon as he declares his identity.
In Mighell v Sultan of Jahore,28 under the assumed name of Albert
Baker, the Sultan, while in Britain, contracted to marry Miss Mighell.
On failing to do so, she sued for a breach of promise. The Sultan’s
claim of immunity was upheld on his revealing his true identity.
If there is doubt as to whether an entity deserves immunity, the
question is referred to the ministry for External Affairs whose statement
is conclusive. In the Arantzazu Mendi Case,29 the statement from the
British foreign office [that Britain] recognized defacto the government
of General Franco conferred immunity on the ship, which was held on
the orders of that government, as opposed to the de jureclaim of the
Republican Government.Then, if there are two possible sovereigns,
the External Affairs Ministry’s statement is decisive.30
Generally speaking, there is no consistent practice with respect to
which organ of a foreign state or subdivision, such as a province or
region, should be entitled to immunity. Certain municipal systems grant
immunity to political subdivisions while others do not. France denies
such immunity, while USA and Britain accord it. Britain recognized the
immunity of the Sultan of Jahore but another Magistrate court in Britain
rejected the claim made by the Agent-General of Eastern Nigeria not
being an agent of the Nigerian Federal Government.31 This would appear
to be an internal arrangement that is applied without strict uniformity.
The European Convention on State Immunity 1972 does not recognize
28 (1894) QB 149.
29 (1939) AC 256.
30 Haile Selassie v. Cable and Wireless Ltd (1939) ch D 182 (1938) ch D 545.
31 R v Achara 1963 (unreported).
the immunity of political subdivision by providing that contracting

states may declare that constituent parts may invoke their provision
and bear the corresponding obligations.
Governments in commercial activities led to an increasing number
of states distinguishing between purely governmental function – acta
jure imperil – and commercial activities acta jure gestonis; – and
restricting immunity to the former.
Lord Wilberforce in 1 Congress Del Parside32 puts the rationale
succinctly:
… it is necessary in the interest of justice for individuals

havingtransactions with State to allow them to bring each
transactionbefore the courts. To require a state to answer a claim
based upon each transaction does not involve a challenge to the
governmental act of that State. It is, inaccepted phrases, nether a
threat to [the] dignity of that state, nor any interference with its
sovereign function …
This distinction has led to the doctrines of absolute immunity and

the doctrine of restrictive immunity. This distinction has been adopted
in a number of multilateral treaties. The Paris Peace Treaties of 1919
and 1920 denied the defeated states any right, privileges or immunities
in foreign trade. The Brussels Convention for the Unification of Certain
Rules Relating to the Immunity of State-Owned Vessels 1926 and the
Additional Protocol 1934 33 also made the distinction. The same
principle applies to the General Convention of the High Seas 1958,34
the Convention on Territorial and Contiguous Zone 1958, 35 the
Convention on the Settlement of Investment Disputes between States
and Nationals of the Other States 1965,36 the Convention on Civil
Liability for Oil Pollution Damage 196937 and the United Nations
Convention on the Law of the Sea 1982.38
The European Convention on State Immunity with its Additional
Protocol 197239 adopts the distinction as does the Convention of
32 1981 3 WCR 329, Fox 98 LQR (1982)94.

33 176 LNTS 199.
34 450 UNTS, 42.
35 506 UNTS, 205.
36 575 UNTS, 159.
37 973 UNTS, 3.
38 Article 96.
39 11 ILM, 470.
Immunity of States in Respect of Commercial and Other Transactions

of a Private Character 1960, 40 the Convention on Jurisdictional
Immunity of States of OAS 198341 the Harvard Draft 1932, the German
Society of International Law 1968 and the Montreal Draft Convention
on State Immunity of the International Law Association 1982. Britain
too adopted the distinction in 1978.42
Under the doctrine of Absolute Immunity, the Sovereign is immune
from foreign jurisdiction in all cases irrespective of the circumstance.
However, the flurries of activities of states have led to the modification
of the absolute immunity rule. The modification has led to the adoption
of the doctrine of restrictive immunity.
In the Parlement Belge case (Supra), the Court of Appeal stressed
that the principle to be deduced from all the relevant preceding cases
was that every state:
declines to exercise by means of its courts any of its

territorialjurisdiction over the person of any Sovereign or
ambassador or of any other state,or over the public property of
any State which is destined to public use … even though such
Sovereign ambassador or property be within its jurisdiction.
The doctrine was equally applied in the case of Porto Alexandre.43

The extension of the doctrine to an agent was established in the case
of Krasina v Tass Agency44 where the Court of Appeal held that the
Agency was a State Organ of the USSR and was thus entitled to
immunity from local jurisdiction.45 However, in Dralle v Republic of
Czchoslovakia,46 the Supreme Court of Australia declared that:
In the light of the increased activity of states in the commercialfield,

the classic doctrine of absolute immunity had lost its meaning
and was no longer a rule in international law.47
40 A Slan – African Legal Consultative Committee, Third Session, Columbia, 1960

(Secretariat of the committee), New Delhi, India.
41 22 ILM, 292.
42 State Immunity Act 1978.
43 (1920) 30.
44 (1949)2 All ER 274.
45 See Also the Case of Duff Development Co. Ltd v. Kelantan Government(1924)
17AC 797.
46 (1950)17 ILR 155.
47 See also Alfred Dunhill of London v. Republic of Cuba 15 ILM 1976.
The doctrine of restrictive immunity was accepted in Nigeria in the

case of Trendtex Trading Co. Ltd v Central Bank of Nigeria48 where the
three judges of the Court of Appeal accepted the validity of the restrictive
immunity as being consonant with justice, comity and international
practice. The court held that the Central Bank of Nigeria was a
governmental department but a “legal” entity of its own right and,
therefore, not entitled to jurisdictional immunity.49 Several states have
reflected the restrictive immunity doctrine in their domestic
legislations.50
3.1 An Examination of the UK State Immunity Act 1978

Although the absolute immunity doctrine remained the orthodox
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 Belge51 was followed for over 50
years but with increasing reservations. The matter came before the
Court of Appeal in The Porto Alexandre case,52 which concerned a writ
issued against a Portuguese requisitioned vessel for non-payment of
salvage charges. A Court of Appeal53 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 date54 or because the facts come within one
of the exceptional situations where the legislation does not apply.55
The express purpose of the legislation was to enable the United
48 1 (1977) QB 529 C.A.

49 Several other cases have reaffirmed this decision. See for example, 1 Congresso
del Parfido (1981)2 All ER.
50 See for example, the United States Foreign Sovereign Immunities Act 1976, the
South African Foreign States Immunities Act 1981 and the United Kingdom
Immunity Act, 1978.
51 (1880)5 PD 197.
52 (1920) 30.
53 The Porto Alexandre (1920) 30.
54 D. Bowett (1978) 193; R White (1979) 42 MLR 72; FA Mann (1979)50 BYIL
43; G. Delaume (1979) 73 AJIL 188.
55 Hispano Americana Mercantile SA v. Central Bank of Nigeria (1979)2 Lloyd’s Rep.
277; 1 Congresso del. Partide (1981)1 AC 244.
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.56
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 centre
of trade was not damaged by rules that were thought to be unfavourable
to trading interests.57
The legislation begins with the general principle58 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.59
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.60
Thus, Saville J was able to rule in A Company Ltd v. Republic of X61 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.62 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
56 The European Convention on State Immunity was signed in Basle by seven

countries including the United Kingdom on 16 May 1972 and came into force on
11 June 1976.
57 See also, Arbitration Act 1979. This concern was mentioned several times during
the parliamentary debates and was precipitated by fears that the United States
Foreign Sovereign Immunities Act 1976 could lead to financial transactions
being lost by the city of London.
58 State Immunity Act 1978, sl; Art 15 of the European Convention on State
Immunity (1972).
59 See also, Art 1 and 2 of the European Convention on State Immunity (1972).
60 Kahum v. Pakistan Federation (1951)2 KB 1003; Baccus SRL, v. Servicio Nacional
del Trigo (1957) 1 QB 438.
61 A Company Ltd. v. Republic of X (1900)2 Lloyd’s Rep 520 (although by operation
of s 16 of the Act property subject to the Diplomatic Privileges Act 1964 will be
immune).
62 State Immunity Act 1978, s. 2(2).
intervened in or taken any steps in the proceedings.63 However, there

will be no submission if the purpose of intervening is to assert
immunity64 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 under s.2.65
Similarly as a matter of construction, a letter sent by a medical
officer to an industrial tribunal did not constitute submission to the
jurisdiction.66 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.67 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.68 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.69
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.70
3.1.1 Commercial Transaction71

It is arguable that the most important provision of the legislation is
s3, which provides that a state will not be immune in respect of “a
63 State Immunity Act 1978, s.2(3)(b) s.2(3)(b); High Commissioner for India v.
Ghosh (1960)1 QB 134, 28 ILR, 150.
64 ibid. s 2(4)(a).
65 ibid. s 2(4)(b). This would in principle cover the situation in Compania Naviera
Vascongada v. Steamship Cristina (1938) AC 483.
66 Ahmed v. Government of Saudi Arabia (1996)2 All ER 248.
67 Arab Republic of Egypt v. Camal-Ehlin (1996)2 All ER 237.
68 State Immunity Act 1978, s.2(6) reflecting to some extend the position at common
law, see Sultan of Johore v. Abubakar Tunka Aris Benduhor (1932), AC 318, High
Commissioner for India v. Cheshj (1960)1 QB 134. 28 ILR 150 (CA).
69 State Immunity Act 1978, s.2(7).
70 United Arab Emirates v. Abedghafor (1993) ICR65; Arab Republic of Egypt v.
Gamal Eldin (1996)2 All ER 237.
71 European Convention on State Immunity (1972), Art 4.
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 s.3 (3) (a) or s3 (3) (b) are automatically
commercial transactions while for the purposes of s3 (3) (c) they 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 Australia,72 held that in interpreting s.3(3)(c)
it was important to pay regard to the overall context and that a claim
for negligent misstatement arising out of a loan transaction might be
caught by both s.3(3)(b) and s.3(3)(c).
Secondly, in respect of s.3(1)(b) it would seem that in contrast to
s.3(1) (a) the contract need not have been entered into by the state
itself and the formulation is wide enough to include contracts of
indemnity and guarantee.73 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;74 this latter case indicates that
72 Australia and New Zealand Banking Group v. Commonwealth of Australia (1989)

(see transcript).
73 Macline Wastson and Co Ltd. v. Department of Trade and Industry (1987) Ch.
72.
74 (1993) 1 WLR 1147.
conduct has to be analysed 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 states75 or the operation of an insurance
monopoly76 will constitute commercial activities as will the issuing of
commercial bonds.77 In like terms, the conduct of a state airline78 or
the purchase of cement79 will be regarded as commercial activities as
indeed will the issuing of foreign treasury notes.80
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 jurisdiction81 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.82
Although the United States has followed the restrictive doctrine
since 1952 the relevant law is now set out in 1605(a)(2) of the Foreign
Sovereign Immunities Act 1976 which provides that the foreign state
will not be immune in any situation in which the action is based upon
75 International Association of Muchinists and Aerospace workers v. OPEC (1979)

477 F. supp. 533, (1962) 76 AJIL 160.
76 American International group Inc. v. Islamic Republic of Iran (1981) 75 AJIL 371.
77 Carl Marks & Co. v. Union of soviet Socialist Republic (1988)82 AJIL 129.
78 Argentine Airline v. Ross (1974) 63 ILR 198.
79 National American Corporation v. Federal Republic of Nigeria (1977)16 ILM 505;
(1978) 17 ILM 1407.
80 Schmult v. Polish People’s Republic (1984) 742 F 2d 67.
81 Callejo v. Buncomer SA (1985) 24 ILM 1050.
82 Alfred Dunbill of London Inc v. Republic of Chuba (1976) 425 US 682; 66 ILR
212; Republic of Argentina v. Wedlocer Inc. (1992) 100 ILR. 309.
a commercial activity carried on in the United States by the foreign

state; or upon an act performed in the United States in connection
with a commercial activity of the foreign state elsewhere or upon an
act outside the territory of the United States in connection with a
commercial activity of the foreign state elsewhere and that act causes
a direct effect in the United States’.
The sub-section embraces three elements. In respect of the first
element it is clear that the commercial activity taking place in the United
States must be substantial and not de minimis. 83 Where the act
performed in the United States is in connection with a commercial
activity of a foreign state elsewhere then the act within the United
States must be sufficient to constitute the foundation of a legal claim.84
In respect of the third element, namely, that of direct effect, something
of legal significance must take place within the United States.85
3.1.2 Contracts of Employment86

Section 4 of the State Immunity Act 1978 makes specific provision in
respect of contracts of employment which were specifically excluded
from s.3.87 Section 4 provides that there will be no immunity in respect
of contracts of employment where the contract is made in the United
Kingdom or the work was to be wholly or partly performed there.88
However, the section excludes those cases where, when the proceedings
are brought, the individual is a national of the state concerned89 or
83 Zahun v. Kingdom of Saudi Arabia (1988)82, AJIL 828, 849 F 2d 1511 (US
Court of Appeals).
84 Zahun v. Kingdom of Saudi Arabia (1988)49 F 2d 1511: Saudi Arabia v. Nelson
(1993) 100 ILR 545.
85 Trans American Steamship Corporation v. Saudi Democratic Republic (1986) 76
AJIL 357; 767 F 2d 998;Texas Trading & Milling Corporation v. Federal Republic of
Nigeria (1981) 20 ILM 620; 647 F 2d 300; 63 ILR 552; Zolanv. Kingdom of
Saudi Arabia (1988) 849 F 2d 1511; but see also Republic of Argentina v. Welbover
Inc. (1992) 100 ILR 509.
86 Art 5, European Convention on State Immunity (1972); see H. Fox, Employment
Contracts As an Exception to State Immunity Is All Public Service Immune”
(1995) 55 BYIL 97, R. Carnett, State immunity in employment matters’ (1997)
46 ICLQ 81.
87 State Immunity Act 1978, s.3(3)(c).
88 ibid, s.4(1).
89 As was the case in Arab Republic of Egypt v. Gamal Eldin (1990)2 All ER 237.
This would have been the case in Songupta v. Republic of India (1983) ICR 221
had it not been outside the legislation because the employee had been appointed
price to the commencement date. State Immunity Act 1978, s. 42(2)(a).
where the individual was neither a national of the United Kingdom

nor habitually resident90 there, or where the parties have reached an
agreement in writing to the contrary.91 However, the exclusions in
respect of contracts of employment have to be read with s.16(1), which
removes the application of the provisions in respect of members of a
diplomatic mission or consular staff.92
3.2 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.93 The President has absolute immunity from civil
liability for his official acts. The leading case on this is Nixon v.
Fitzgerald. 94 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.
90 State Immunity Act 1978, s.42(2)(b) for recent consideration of the expression
“habitually resident”, see Nesa v. Chief Adjudication Officer (1998)2 AB ER
778 (CA) (1999) 1 WLR (HL) for a review of the concept, are P. Ragerson,
Habitual residence the new domicile (2000) 49 ICLQ 86.
91 State Immunity Act 1978, s.4((1)(c).
92 Ahmed v. Government of the Kingdom of Saudi Arabia (1996)2 All ER 248.
93 S.L. Emmanuel, Constitutional Law (Larchmont N.Y. Emmanuel Publishing Corp.,
1992)p.
94 457 U.S. 31 (1982).
However, the President does not have immunity at all for acts that
are completely unconnected with his official duties. In Clinton v. Jones,95
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 subpoenaedto produce relevant documents in
criminal matters. In United States v Nixon,96 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.
95 1 65 U.S. L.W. 4372 (27 May 1997).

96 418 U.S. 683 (1974).
3.3 Immunity Clause under the Nigerian Law

The 1999 Constitution of the Federal Republic of Nigeria is the supreme
law of the land and, by virtue of section 1 of the Constitution, has a
binding force on all authorities and persons throughout the federation.
Section 308 provides for Restriction on Legal Proceedings as follows:
(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:
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 a person is only a nominal party.
(3) This section applies to a person holding the office of President
or Vice-President, Governor or Deputy Governor; and the
reference in this section to “period of office” is a reference to
the period during which the person holding such office is
required to perform the functions of the office.The person
holding the office does not even have the right to waive the
immunity because any such waiver is ineffective as the
immunity is not that of the person holding the office but of
that particular office he represents during the tenure of the
office.97
97 Alamieyesigha v.Yeiwa (2001)33 WRN 144.

For example, in Tinubu v. IMB Securities Plc,98 the Court of Appeal

took the view that a person to whom section 308 applies could not
even as an appellant pursue an appeal before this Court during the
period of his office. The court took the view that a plaintiff to whom
section 308 did not directly apply could not initiate or continue
proceedings against a person to whom section 308 applies. The latter
person could not pursue an appeal against any decision of the trial
court. The reason being that, to allow that person was akin to a
continuation of the proceedings before the lower court, the Supreme
Court in upholding the reasoning of Court of Appeal said per Iguh JSC.
In my view, the Immunity granted to the incumbent of the relevant

office under section 308 (1) (a) of the Constitution prescribes an
absolute prohibition on the courts from entertaining any
proceedings, civil or criminal, in respect of any claim or relief
against a person to whom that section of the Constitution applies
during the period he holds office. No question of waiver of the
relevant immunity by the incumbent of the office concerned or
indeed, by the courts may therefore arise. In my view, the Court of
Appeal declined to entertain the appellant’s appeal pending before
it as to do otherwise would amount to continuing the plaintiff/
respondent’s suit against the defendant/appellant, a suit which
under section 308 (1)(a) of the 1999 Constitution shall not be
continued against the appellant while he remained Governor of
Lagos State.99
Similarly, in Industrial Commercial Service Ltd v. Balton B. V.,100 the

Court of Appeal held that no question of waiver of the relevant immunity
by the incumbent of the offices concerned, or indeed by the courts
may arise; it is an absolute bar. Even where the incumbent fails to rely
on the immunity clause the court will still decline jurisdiction to
entertain the case. In Rotimi and others v. Macgregor,101 an action for
damages for trespass committed by the defendants against the plaintiff
was brought before the court. While the action was pending the first
981 (2001) 16 NWLR (Pt 740) 670.

99 ibid 695.
100 (2003) 8 NWLR (Pt 822) 223. See also Akume v. National Party of Nigeria
(1984)5 NCLR 494, where the court rejected the contention of the plaintiff
counsel that Governor AperAku could easily waive the immunity and subject
himself to trial.
101 (1974) NSCC 542.
defendant became the Military Governor of Western State. The provision

of section 161(1)(c) of the 1963 Constitution applied and the action
should have been struck out against him. The Supreme Court held
that section 161(1)(c) of the Constitution prescribesimmunity from
court process, and the incumbent of the relevant office cannot waive
the effect of the section, so that even if it was not relied on before the
court, the court is bound to give effect to it.
The immunity clause has been criticized on the ground that the
public officials mentioned in section 308(3) of the Constitution are
incentivized in the commission of civil wrongs or crime. For instance,
by the provision of the immunity clause, it is almost impossible to
hold any case against an incumbent, even if he openly commits an
offence. Hence, the Governor of a State is practically above the law
because he is immune to prosecution for any type of offence while his
tenure lasts. That is why some Governors were alleged to have indulged
in carefree looting of their state treasury. Some Governors have allegedly
been involved in the murder of political opponents while some have
been arrested abroad for money laundering and other criminal
activities.Also, waiting for four or eight years before commencing civil
or criminal proceedings against the President, Vice-President, Governor
or Deputy Governor, will create an opportunity for a criminally-minded
executive to destroy the evidence and make it almost impossible for
the law to take its due course.102 However, there are some exceptions
to the immunity clause, these include:
a. Where the incumbent is a nominal party in a suit and suits
against official acts:
The 1999 Constitution stipulates that the immunity clause

does not extend to a civil action against the President,
Vice-President, Governor or Deputy Governor in his official
capacity, as well as a civil or criminal action in which he
is only a nominal party.103 It simply means that immunity
granted by section 308 does not protect official acts. So,
an incumbent cannot while acting in his official capacity
claim immunity from legal process. The section will only
protect acts as done in the personal capacity and while
the person is in office at the time the writ was issued. For
102 This Day, 22 February 2008, p.80.

103 S. 308 (2)1999 Constitution.
example, in Abacha v. Fawehinmi,104 the Supreme Court

held per Uwaifo JSC.
Subsection (2) is self-explanatory. The immunity provided for

does not apply to [the] person in question in his official
capacity or to a civil or criminal proceeding in which such a
person is only a nominal party. The immunity is to protect
such a person from the harassment, the immunity provided
for in the Constitution does not arise and does not apply.
Where the incumbent is only a nominal party in the civil
suit, the immunity granted by section 308 of the Constitution
will not apply. In Anzaku v. Governor of Nasarawa State,105 an
action for wrongful dismissal from employment by Lafia Local
Government Council was successfully maintained against the
Lafia Local Government Council with the Governor as a
nominal party.106
b. Police investigations – Section 308 of the 1999 Constitution
does not immune the officials stipulated in its subsection (3)
from police investigation.
This is because investigation of a crime by the police is a
preliminary course, which may or may not result in a criminal
prosecution. There is a distinction between “proceedings” and
“investigation” leading to the proceedings. In civil proceedings
investigation is hardly necessary, but in criminal proceedings,
where allegations of crime are made, there is always the need
to ensure that there is sufficient evidence to prosecute and
these may involve questioning, arrest or even detention where
necessary of the person or persons involved. There is no doubt
that in all criminal allegations, investigation plays an
important part and it will make or mar subsequent criminal
proceedings, but that does not qualify it as being part and
parcel of the proceedings.
It follows, therefore, that police investigation of a
criminal allegation is not and cannot be regarded as criminal
proceedings so as to qualify such proceedings under section
104 (2000)6 NWLR (Pt. 660) 288. See also Dasuki v. Muazu (2002)16 NWLR (Pt.
793) 319.
105 (2005)5 NWLR (Pt. 919). 448. See also ICS (Nig) Ltd v.Balton B.C.
(2002)8NWLR (Pt. 822)223.
106 ibid 351-532.
308(1). The holders of office mentioned in section 308(3)

can, therefore, be investigated provided they are not
questioned, arrested or detained or asked to make any
statement in connection with such investigation. 107 It is
important to note that when an incumbent is investigated
and strong evidence is gathered against him, it will not be
used to commence criminal proceedings against him. The
evidence must be kept in the cooler until such a time the
officer vacates the office.
c. Election petitions – The immunity granted certain functionaries
of government from civil and criminal proceedings under
section 308 of the 1999 Constitution does not extend to
election petition proceedings. This is because election petitions
are special proceedings completely divorced and separated
from civil proceedings within the context of section 308.
d. Acts Done Outside Nigeria – The immunity granted certain
officials under section 308 of the 1999 Constitution does not
cover acts done by these officials outside the country. This
was why the former Governor of Bayelsa State (Governor
Alamieyeseigha) was arrested in Britain while he was still the
Governor of Bayelsa State for money laundering. A discussion
of the case will now be carried out.
3.4 Immunity Clause and Acts Done Outside Nigeria:

The Alamieyeseigha Case
In September 2005, the late Diepreye Solomon Alamieyeseigha, the
then Governor of Bayelsa State, one of the 36 constituent states that
make up the Federal Republic of Nigeria, was arrested, detained and
charged with the criminal offence of money laundering. The governor
challenged his arrest, detention and subsequent arraignment in court
on the grounds that as the governor and chief executive of Bayelsa
State, he enjoyed Sovereign Immunity in International Law.Following
this claim, several jurists, professors of law, senior advocates in the
profession and other public affairs commentators have taken positions
on the issue raised.
Professor Fidelis Oditah, QC, a counsel to the governor was of the
107 Fawehinmi v. Inspector General of Police 10 NSCQR 826.

opinion that the governor was entitled to immunity in Britain.108 He

believed that “[L]ike the Federal Government, Bayelsa State has three
arms of government – the executive, legislature and judiciary.
Accordingly, as the Head of Bayelsa State, the governor has immunity
from criminal jurisdiction under all applicable laws including the laws
of Nigeria, England and International Law…”.
Chief Gani Fawehinmi, SAN, a foremost Nigerian legal practitioner
opined that no immunity would avail the embattled governor. According
to him, “Under International Law, immunity is enjoyed by the head of
a Sovereign State. State here means nation state and not a geographical
or political division within the nation state like Bayelsa State. The
Customary International law recognizes nation division within a nation
state as deserving immunity for the head of that nation state. In Nigeria,
the head of the nation was President Olusegun Obasanjo. According to
the political division in Nigeria, there were 36 geographical states with
36 governors but none of them is the head of the nation state of Nigeria.
None of the 36 governors enjoys immunity under the Customary
International law, consequently, the Bayelsa state governor; Chief
Diepreye Alamieyeseigha does not enjoy immunity outside Nigeria.109
Dr Olu Onagoruwa, a former Attorney-General and Minister of
Justice of the Federation of Nigeria interjected that the governor was a
diplomatic agent of Nigeria and thus cannot be tried or arrested for
any criminal offence. He believed that “by all account, Alamieyeseigha
is a high diplomatic agent of the Nigerian state. He presides over the
executive apparatus of his state, which is part of the Nigerian state
….” as an agent of the Nigerian state, Alamieyeseigha cannot be arrested
or detained”.110 He concluded by saying that the governor’s trial is a
breach of international law.
Professor Ijalaye, an emeritus professor of law at the Obafemi
Awolowo University, Ile-Ife, held an opinion that coincided with
Fawehinmi. On the immunity conferred on any governor of the 36
108 See “Alamieyeseigha’s Detention and Arraignment Violate International

Law”The Guardian Newspaper (4 October 2005) 69.
109 See the Punch Newspaper, 4 October 2005, 46
110 See “Alamieyeseigha and International Law”The Guardian Newspaper(3 October
2005) 65. This argument appears to me to be quite sound. It would appear
that a better immunity would have been available under diplomatic immunity
than sovereign immunity. The learned former Attorney cited decided case like
US v Telum the case of the Dutch Ambassador and the LandaraveHessee case
of 1963; Mighell v. Sultan of Jahore amongst others to buttress this position.
states of the federation of Nigeria as provided for in Section 308 of

Nigeria’s Constitution, he believed that sovereignty belonged to the
Head of President of a nation-state. He further declared, “…. Foreign
heads of state, whether monarchs or presidents, embody in their
persons the Sovereignty of their states and when they visit or pass
through the territory of another Sovereign and Independent Country,
they are wholly exempted from the local jurisdiction, both civil and
criminal”.111 He concluded that no sovereign immunity would avail
DSP Alamieyeseigha.
Chief Wole Olanipekun, SAN, a former President of the Nigerian
Bar Association (NBA) held the view that the governor enjoys immunity
like the president of the Federal Republic. He maintained that Bayelsa
State, a political sub-division like any other state, is recognized under
International law as a Sovereign state that is entitled to immunity …
that considering both the Nigerian Constitution and the applicable
Acts in the UK together with the Vienna Convention and a host of
decided cases by British and other foreign courts, that governor DSP
Alamieyeseigha enjoys immunity from prosecution in the United
Kingdom”.112
Professor Akindele Oyebode, a foremost jurist and acclaimed
Professor of International Law, holds the view that the concept of
absolute Sovereign Immunity is otiose, unfashionable in contemporary
international law. He believes that at best, what we have is restrictive
sovereign immunity and that the immunity, as canvassed by the
Governor, cannot avail him.113
Professor Itse Sagay, also a Professor of International Law, contends
that the Governor enjoys immunity outside Nigeria. He draws the basis
of his argument from section 308 of the Nigerian Constitution and
declares that:
[T]here can be no basis for concluding that whilst thePresident

enjoys sovereign immunity “in that capacity”. Governor
111 “Sovereign Immunity and Governor DSP Alamieyeseigha”, Guardian Newspaper

(11 October 2005) 67.
112 “Alamieyeseigh’s immunity under the Nigerian Constitution and International
Law”, Guardian Newspaper (31 October 2005) 19.
113 This view was expressed on the network service of the Nigeria Television
Authority (NTA) on “periscope”, a programme that equally featured Professor
ItseSagay. The two learned professors took positions that were dramatically
opposing.
Alamieyeseigha, who is protected by identical provisions in the

same section as head of the Government of Bayelsa State enjoys
some measures of immunity in that capacity.
He further asserts that:
a federation’s sovereignty is split between the federal state and the

federating states … that Sovereignty must be divided between the
federal state on the one hand, andon the other hand, the member
states.114
The debate on whether Chief DSP Alamieyeseigha enjoys Sovereign

Immunity under International Law continued with learned jurists taking
opposing positions. The controversy was so intense and the divergence
of opinion so plethora that the whole legal firmament was pervaded
by confusion. The British Court’s judgment in the case will now be
appraised.
3.5 The Crown Court’s Judgment in Alamieyeseigha v.

Crown Prosecution Service
3.5.1 The charges
The claimant has been charged by the Crown Prosecution Service
(“CPS”) with three offences as follows:
In the first charge, the claimant is alleged to have received
£420,000 into a bank account held at HSBC in London on or
about the 14 December 2001 contrary to section 93C(1)(A) of the
Criminal Justice Act 1988 as amended. The money, it is alleged,
represented the proceeds of a corrupt payment received from an
oil and property merchant in Nigeria.
In the second charge, the claimant is alleged to have money
laundered the sum of £475,724 contrary to section 93C(1)(A) of
the Criminal Justice Act 1988 as amended by paying into the
account of a firm of solicitors (Nedd & Co) on or about the 22
March 2003, for use when purchasing a property at 68-70 Regents
Park Road, London, N3.
The third charge relates to a cash sum of £920,000, which
was found at the claimant’s home on 15 September 2005. Again
114 “International Law, Governor Alamieyeseigha and Sovereign Immunity”

Vanguard Newspaper(14 October 2005) 19.
the CPS alleges that this sum represents the proceeds of criminal
conduct contrary to section 327(1) of the Proceeds of Crime Act
2002.
3.5.2 The issue before the British Court (“the Court”)

Whether a Governor and Chief Executive of a state, which is constituent
part of the Federal Republic of Nigeria, is entitled to immunity in
criminal proceedings brought in the court. Mr Edward Fitzgerald QC,
one of the counsels to Diepreye Solomon Peter Alamieyeseigha (“the
claimant”) had brought a claim by judicial review to quash the decision
to prosecute the claimant on the grounds that he is entitled to sovereign
immunity in his capacity as Governor and Chief Executive of Bayelsa
State, which is a constituent part of the Federal Republic of Nigeria.
3.5.3 The judgment

In its decision, the court states that Bayelsa State is not entitled to
State Immunity and that the claimant is also not so entitled. In reaching
its decision, it took into consideration reports of experts from both the
claimant and the defendant.The claimant relied on a report of Professor
Benjamin Nwabueze, a highly experienced Nigerian advocate as well
as a writer on legal matters.The defendants adduced a report from Dr
Tunde Ogowewo, a Senior Lecturer at King’s College, London, who is
an expert in Nigerian Law. They both explained the relevant provisions
in the Constitution of the Federal Republic of Nigeria 1999 (“the
Nigerian Constitution”) and the Nigerian case law, which is relevant to
the case. The court reached its decision on the following grounds.
(a) The Legal Capacity to Enter into Foreign Relations
Bayelsa State has no legal powers to conduct foreign relations
for and on behalf of itself because “external affairs” are
exclusively reserved to the Federal government.
(b) A Certificate from the Secretary of State
The Secretary of State for the Foreign and Commonwealth
Office had issued a certificate under section 21 of the 1978
Act dated 26 September 2005, which records that:
The Federal Republic of Nigeria is a State for the purposes

of Part 1 of the Act, Bayelsa is a constituent territory of
the Federal Republic of Nigeria, a federal state for the
purposes of Part 1 of the Act. (The claimant) is the
Governor and Chief Executive of Bayelsa State and is not

to be regarded for the purposes of Part 1 of the Act as
Head of State of the Federal Republic of Nigeria.
(c) The Functions of Member Statesand the Federal Government

That the Nigerian Constitution shows that the States such as
Bayelsa State do not have any powers in respect of a number
of matters which would normally be associated with a
sovereign state.
(d) Limited Powers of Federal Sub-States
That there are provisions in the Nigerian Constitution, which
show limited powers of federal sub-states such as Bayelsa
State in relation to the Federal Republic of Nigeria.
On relevant Nigerian case laws, the court considered the Supreme
Court decision in the case of Attorney-General of the Federation of Nigeria
v. Attorney-General for Abia State (2001), 11 NWLR where it was held
that federal states, such as Bayelsa, are not sovereign states. In that
case, the defendants were the Attorney-General for all the sub-states
in Nigeria, including Bayelsa State. It was stated in the judgment of
the court that “the defendants in the action are not persons within the
scope of international law not being sovereign states” (per Ogundare
JSC at page 749C) and that “it is certainly not true that the “state”
referred to in international conventions refer to our provinces that we
conveniently call States”. The court also considered the judgment in a
more recent Supreme Court case of Attorney-General of the Federation
of Nigeria v. Attorney-General of Abia State (No. 2) (2002) 6 NWLR
where Chief Justice Uwais said that “the 36 constituent states of Nigeria
are not members of the comity of Nations and so the provisions of
international law do not directly apply to them but the Federation”
(pages 728-729).
4. REFORMING CONSTITUTIONAL IMMUNITY

CLAUSE IN NGERIA
The immunity granted by the 1999 Constitution is not absolute. The
Constitution does not intend to grant the specified officials immunity
forever from civil and criminal proceedings in respect of any civil wrong
or criminal offence allegedly committed during the tenure of their office.
Once their tenure expires civil or criminal proceedings could be
commenced against them. Thus, immunity merely suspends liability.

In Dasuki v Muazu,115 the former military Governor of Sokoto State
contended that because of the immunity granted by the Constitution,
he could not be held liable for acts done in his official capacity as
Military Governor of Sokoto State. The Court of Appeal rejected this
contention and held that the constitutional immunity applied only to
protect him while in office and that he remained liable for such acts
and enjoys no further protection after he left office. This explains why
the constitution in its proviso to Section 308(1) states in ascertaining
whether any period of limitation has expired for the purpose of any
proceedings against a person to whom this section applies, no account
shall be taken of his period in office. In other words, to determine
whether an action is statute barred, the period of office is not
counted.116
Also, an incumbent so protected by Section 308 of the Constitution
is immune from civil and criminal actions, arrest or imprisonment in
pursuance of a court process or from any court process, compelling or
requiring his attendance,117 but a civil action could be brought against
the named public officers in their official capacity or as a nominal party.118
The immunity is also limited only to the period of office. This is why,
to determine whether any period of limitation has expired for the
purpose of any suit against the immune person, no account is taken of
the period of office.119 It is also important to note that the police or
other agencies of government can investigate the public officerswhile
they are still in office. The EFCC recently froze the account of Mr Ayo
Fayose, the Governor of Ekiti State, arguing that S308 had not been
violated as the freezing of the account was in pursuance of their
investigation and does not have anything to do with prosecution which
they agree was immutable. Protected officials are also not protected
for acts outside the country, as the immunity has no extra-territorial
application. It is only the President that enjoys protection under the
international doctrine of Sovereign Immunity. Such immunity is not
extended to the Governors of constituent states in a federation.
115 (2002)16 NWLR (Pt. 793) 319.

116 ICS (Nig) Ltd v Balton B.V.
117 S. 308(1) of the 1999 Constitution.
118 S. 308(2), id.
119 S. 308(1) (a) & (3), id.
In view of the events of the recent past where the DSS became the
Agency of government fighting corruption, the argument that the
immunity clause should be totally expunged from the Constitution
cannot be supported. If executive immunity is removed, given the
excessive control wielded by the President over prosecution machinery
like the Police, EFCC, the ICPC, Code of Conduct Bureau, the DSS and
other agencies, the Governors can suffer intense harassment from the
President due to political differences that he may have with them.120
From all indications, therefore, the purpose and extent of the
immunity clause is to allow an incumbent completely to have a free
hand and mind in the performance of the duties and responsibilities
assigned to the office, which he or she holds under the Constitution.
But this is not intended to grant him or her immunity forever from full
criminal investigation or any criminal proceedings in respect of an
offence allegedly committed by him or her during the tenure of office.
Immunity is meant to provide a conducive atmosphere where public
functionaries can work without any distraction of litigation or hindrance
by any service of any court process.121 Secondly, the immunity is
essentially for the protection of the majesty and dignity of the office
not for the individual incumbent as such. To drag an incumbent to
court and expose him to the process of examination or cross-
examination would degrade the office.
The power of impeachment bestowed on the Legislature to get the
protected officials removed from office when case(s) of misconduct
bothering on criminality or financial mismanagement are established
against them is very potent. Legislators should be completely
independent and free from executive influence. This will enable them
to hold the Governors and Presidents accountable to the people
because they will not condone or cover up a Governor or President
who has committed a criminal act or civil wrong. The power of
impeachment would be a potent weapon against a corrupt but protected
public official. Nigerians should be advised to insist that only credible
and honourable men are elected to preserve the dignity and integrity
of people elected to the highest offices. This will go a long way in
curbing corruption.
120 G. Omoarishe, “Reconsidering Executive Immunity under the Nigeria

Constitution” (2007-2010) Nigeria Current Law Review299; A.G. Anambra
V.A.G. Federation & 35 (2005) 7 MJSC 1.
121 J.A. Yakubu,Constitutional Law in Nigeria (Nigeria, Demyax Law, 2003)13.
5. CONCLUSION
The legislative intent for providing constitutional immunity clauses in
most commonwealth jurisdictions is to protect the dignity and integrity
of the holder of an elective office. This intention is particularly more
fundamental and essential in Nigeria given the fledgling and emerging
nature of the nation’s democratic institutions. Removing the immunity
clause could open a floodgate of frivolous litigations against elected
officers especially from “professional litigants” with the sole aim and
objective of distracting the officer from the very serious business of
governance.
The investigation of the activities of the incumbent office holders
should continue as it does not conflict with the provisions of the section
and they can be made to answer to these investigations as soon as
they leave office.However, constitutional immunity should not be
extended to the legislative arm of government because such immunity
does not avail the third arm of government – the judiciary. More
importantly, all the members of the legislature are equal upon being
elected. The leaders become primus inter pares upon election to
leadership positions and can be removed anytime and substituted by
another member without or with minimal disruption to legislative
business.
Furthermore, the process of removal from office of protected officers
as provided for in the Constitution should be used in proven cases of
breach of trust, corruption or mismanagement. The officer concerned
can be made to face charges as soon as they are lawfully removed from
office as the immunity will abate immediately.

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CONSTITUTIONAL IMMUNITY CLAUSE AND

THE FIGHT AGAINST CORRUPTION IN NIGERIA

Keywords: Corruption, immunity, Constitution, sustainable development.

religion. In practice, corruption is any form of unethical, dishonest or

is an insidious scourge that impoverishes many countries and affects

7 S. Igbinedion (n 6); N Ikpeze, “Fusion of Anti–Corruption Agencies in Nigeria:

Nigeria’sunder-development, despite the abundance of human and

President, Vice-President, Governor or Deputy Governor, the action

2. MEANING AND HISTORICAL EVOLUTION

15 See F. Falana, “Official Corruption and Immunity in Nigeria” Premium Times (7

of the courts of another state in circumstances where the courts of that

16 H.A. Olaniyan, “United Nations Convention on Jurisdictional Immunities of States

in a state and not as an abstract manifestation of the existence of

One sovereign, being in no way amenable to another, and being

… declines to exercise by means of its courts any of its territorial

In Under Erill v Hermandez,27 the court said:

Every sovereign state is bound to respect the independenceof every

24 7, Cranch 116 (1812).

Discussed below is the case of Mighell v Sultan of Jahore, which

3. ABSOLUTE VERSUS RESTRICTIVE IMMUNITY

the immunity of political subdivision by providing that contracting

… it is necessary in the interest of justice for individuals

This distinction has led to the doctrines of absolute immunity and

32 1981 3 WCR 329, Fox 98 LQR (1982)94.

Immunity of States in Respect of Commercial and Other Transactions

declines to exercise by means of its courts any of its

The doctrine was equally applied in the case of Porto Alexandre.43

In the light of the increased activity of states in the commercialfield,

40 A Slan – African Legal Consultative Committee, Third Session, Columbia, 1960

The doctrine of restrictive immunity was accepted in Nigeria in the

3.1 An Examination of the UK State Immunity Act 1978

48 1 (1977) QB 529 C.A.

Kingdom to ratify both the 1926 Brussels Convention on the Unification

56 The European Convention on State Immunity was signed in Basle by seven

intervened in or taken any steps in the proceedings.63 However, there

3.1.1 Commercial Transaction71

commercial transaction” or; … an obligation of the State which by

72 Australia and New Zealand Banking Group v. Commonwealth of Australia (1989)

conduct has to be analysed in detail over time so that subsequent

75 International Association of Muchinists and Aerospace workers v. OPEC (1979)

a commercial activity carried on in the United States by the foreign

3.1.2 Contracts of Employment86

where the individual was neither a national of the United Kingdom

3.2 Immunity Clause in the United States of America

95 1 65 U.S. L.W. 4372 (27 May 1997).

3.3 Immunity Clause under the Nigerian Law

97 Alamieyesigha v.Yeiwa (2001)33 WRN 144.

For example, in Tinubu v. IMB Securities Plc,98 the Court of Appeal

In my view, the Immunity granted to the incumbent of the relevant

Similarly, in Industrial Commercial Service Ltd v. Balton B. V.,100 the

981 (2001) 16 NWLR (Pt 740) 670.

defendant became the Military Governor of Western State. The provision

The 1999 Constitution stipulates that the immunity clause

102 This Day, 22 February 2008, p.80.

example, in Abacha v. Fawehinmi,104 the Supreme Court

Subsection (2) is self-explanatory. The immunity provided for

308(1). The holders of office mentioned in section 308(3)

3.4 Immunity Clause and Acts Done Outside Nigeria:

107 Fawehinmi v. Inspector General of Police 10 NSCQR 826.