From Sovereign Immunity to Constitutional Immunity in Nigeria: Reappraising the Gains and Pitfalls

Abstract

Recently, Prince Harry (Prince Henry Charles Albert David) the Duke of Sussex, testified in a London court that his life has been blighted by intrusion from Britain’s tabloid press, marking the first time in more than 130 years that a member of the royal family has given evidence at trial. The prince, who has consistently refused to settle long standing hacking claims where others have, appeared at the High Court in a highly anticipated civil lawsuit against MGN Ltd., the publishers of the newspapers the Daily Mirror, the Sunday Mirror and The Sunday People. This calls for an inquisition on the controversies surrounding the Immunity privileges enjoyed by Royals which Nigeria had adopted in its Section 308 of the 1999 Constitution. Despite its antiquated feudal origins, the doctrine of immunity has continued to find relevance even in the most modern republican states. There has however been a striking change in the content of justifications often advanced for it. At the beginning, it was simply assumed that the king of England could do no wrong. Thus, an action against His majesty was out of the question; more so where the venue for adjudication was the king’s court and the presiding judge was the king himself or one of the courtiers. In addition to this quaint rationalization, the king had the full status of a sovereign, approximating the state all by himself. The perceived impossibility of subjecting a sovereign state to legal action found expression in the phrase “sovereign immunity”. In Nigeria the Constitution of the Federal Republic of Nigeria in its section 308 provide for executive immunity on specified public officers viz: The president, Vice President, Governors and Deputy Governors. I submit that the immunity clause is not founded in an expressed lack of confidence in the courts to dispense justice, but in political expediency. The drafters of the 1999 Constitution neither thought the executives infallible nor did they want to offer them a gratuitous escape from the law. This is why the immunity granted the Executive is not absolute as there are limitations. Among other provisions cited, the law provides that the executives can be sued in their nominal capacities, and in a special tribunal for complaints arising from electoral matters. Also, they could be sued after their tenure of offices. Moreover, under the doctrine of the separation of powers, the actions of the president and governors are closely monitored through the oversight functions of the legislative arm of government and equally subject to judicial review.