Gov Am­bode and abuse of the im­mu­nity clause

The clause is not in­tended to cover ev­ery per­son that works un­der and for the ben­e­fi­cia­ries but the ben­e­fi­cia­ries them­selves.

Financial Nigeria Magazine - - Contents - La­gos State Gover­nor Ak­in­wunmi Am­bode

Alot 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

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.”

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.

Otodo Gbame res­i­dents fled on ca­noes as their homes were be­ing lev­eled by the La­gos State Gov­ern­ment

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