(A Legal Opinion by Sylevester Udemezue)
Note: “VeePee” means “Vice President”
?1). A PERSON PROTECTED BY THE IMMUNITY PROVISIONS IN SECTION 308 OF THE 1999 CONSTITUTION CAN BE INVESTIGATED IN RESPECT OF CRIMINAL ALLEGATIONS.
?2). So, one doesn’t need to waive immunity in order to be investigated by relevant law enforcement agencies
?3) It is legally impracticable and impossible to successfully, temporarily waive your immunity (while still in office) except/unless by resignation from the office.
?4). A civil suit cannot satisfy the requirements of a ROBUST ADJUDICATION of a criminal/corruption allegation.
?5). Any person accused of corruption remains innocent unless and until the criminal allegations are proven beyond reasonable doubt in a court of law. So, why worry about Media Trial?
?6). When a false allegation is published against a leader, it is reasonably sufficient for the leader to issue or cause to be issued a PUBLIC restatement refuting the allegation (giving his own side), and thereafter the leader should RemainFocused on governance.
?7) It is part of effective leadership to face and receive bashings and even allegations from the leader’s detractors and critics; so, threatening (through your lawyers) to go to court against your accusers is unnecessary;
I have read these news items: (1). “I am prepared to waive my immunity” – Gov Seyi Makinde (https://www.google.com/amp/s/www.vanguardngr.com/2019/06/i-am-prepared-to-waive-my-immunity-gov-seyi-makinde/amp/) and (2). “I Will Waive Immunity To Clear My Name,” Osinbajo Reacts To Allegations (https://www.google.com/amp/s/www.channelstv.com/2019/09/25/i-will-waive-my-immunity-to-clear-my-name-osinbajo-reacts-allegations/amp/); (3). Osinbajo threatens to sue people spreading fake news about him on social media (https://www.google.com/amp/s/www.pulse.ng/news/local/osinbajo-threatens-to-sue-people-spreading-fake-news-about-him/nmgmqvv.amp).
I offer my opinion from the legal perspective, on the matters arising. First, I respectfully submit that it is not legally possible to temporarily waive or suspend the legal implications of the immunity provisions contained in section 308 of the 1999 Constitution, for purposes of having civil or criminal proceedings filed against the occupant of the office, or for a robust adjudication to be done to clear the office holder’s name, while the leader is still in office.
Purporting to temporarily waive immunity is akin to parties in a civil or criminal proceeding/action purporting to agree on their own (without any statutory or other legal support) to confer jurisdiction on a court of law in a case in which such court clearly and statutory lacks jurisdiction. Such is wild good chase; an exercise in futility —- a case of building a castle in the air, which is a fruitless, meaningless and useless action.
There are only two options open to the occupant of such office in the circumstances: (1) resign from office to extricate yourself from the protection of section 308, so that you can submit a full criminal adjudication (trial) over the matter, to clear your; or (2)Submit to investigation now and cooperate with investigating law enforcement agents in order to determine whether or not there is any prima facie case against you, and if there’s, to wait until your tenure ends for a ROBUST ADJUDICATION of the charges or allegations against you in order to determine whether or not you’re guilty.
Civil adjudication cannot satisfy the requirements of any robust adjudication on the matter. This is because, while you’re still in office, and protected by section 308, only you may sue in your own personal capacity. Yes, Prof Osinbajo (as the VeePee) may institute a civil action against a citizen — see
GLOBAL EXCELLENCE V DONALD DUKE ((2007) LPELR -1323(SC): But you, the VeePee, cannot be sued in your personal capacity, neither may any criminal prosecution or civil proceedings be initiated against you in your personal capacity while you are still in occupation of such office, and protected by immunity.
I repeat, you as an occupant of an office covered by immunity lack the vires to waive or suspend such immunity. No Governor Deputy Governor or Presido or VeePee in Nigeria has the vires to waive his immunity while still in office.
Further, I humbly suggest that current threats by the VeePee’s lawyers to proceed to court with a defamatory suit against the publishers of the alleged “defamation” against the VeePee, may not yield the desired result because, the only way to determine whether or not such criminal allegations are true or credible is for relevant law enforcement agencies to FIRST launch/undertake a thorough investigation into the allegations with a view to determining the veracity of same.
Without such investigations carried out, and report thereof made public, it would be difficult for any court in Nigeria to be in possession of any jurisdiction to pronounce on the truth or otherwise of the CRIMINAL allegations.
Let me now restate that in respect of the allegations of corruption made against the person of the VeePee, the VeePee need not lose any sleep since he is protected under section 36(5) of the Constitution which afford him a presumption of innocence unless and until his guilt is proved beyond doubt in court. What is more? Criminal investigations by any law enforcement agency doesn’t violate the immunity provisions of the constitution. A person covered by immunity can be criminally investigated, but not prosecuted.
In FAWEHINMI V IGP (2002) LPELR 1252 (SC), the Supreme Court while considering whether investigation of a criminal complaint by the police against the office holders mentioned in Section 308(3) of the 1999 Constitution is tantamount to laying a criminal complaint before a court, held (Per WALI ,J.S.C ( Pp. 49-50, paras. F-A )), that “Investigation of a Criminal complaint by the police against any of the office holders mentioned in section 308(3) of the 1999 Constitution is not tantamount to laying a criminal complaint before a Court.
Investigation of a criminal complaint by the police is in my view a preliminary course which may or may not result in a criminal prosecution.”
In EFCC V FAYOSE (2018)N 44131 (CA), UGO, J.C.A ( on Pp. 41-44, paras. A-C ), while ruling on ‘Extent of the investigative powers of the police with respect to a sitting Governor,’ stated as follows:
“The issue of the extent of the investigative powers of the police with respect to a sitting Governor and the immunity enjoyed by him under Section 308 of the Constitution was addressed by the Supreme Court in Fawehinmi v. I.G.P. (supra) to the effect that, while a sitting Governor cannot be arrested nor proceeded with in Court either by civil or criminal proceedings, he can be investigated while in office and evidence gathered/assembled preparatory for use in impeachment proceedings against him or for prosecution when he vacates office.
This is what Uwaifo, J.S.C., said in his lead judgment in Fawehinmi v. I.G.P. (2002) 7 NWLR (PT. 767) 606 at 681 – 682: “That a person protected under Section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police for an alleged crime or offence is in my view beyond dispute. To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated.” His Lordship then demonstrated his point thus: “I shall give three possible instances. Suppose it is alleged that a Governor in the course of driving his personal car recklessly ran over a man, killing him; he sends the car to workshop for repairs of the dented or damaged part or parts. Or that he used a pistol to shoot a man dead and threw away the gun into a nearby bush. Or that he stole public money and kept it in a particular bank or used it to acquire property. Now if the police became aware, could it be suggested in an open and democratic society like ours that that they would be precluded by Section 308 from investigating to know the identity of the man killed, the cause of death from autopsy report, the owner of the car taken to the workshop and if there is any evidence from the inspection of the car that it hit an object recently, more particularly a human being; or take steps to recover the gun and test it for ballistic evidence; and generally to take statements from eyewitnesses of either incident of killing. Or to find out (if possible) about the money lodged in the bank for acquiring property, and to get particulars of the account and the source of the money; or of the property acquired? His Lordship answered these questions pungently thus: “The police clearly have a duty under Section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available. The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available, and in the particular instances given it can be seen that the offences are very serious ones which the society would be unlikely to overlook if it had its way. The evidence may be useful for impeachment purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under pretext that a Governor cannot be investigated is a disservice to the society. I therefore answer issue 1 in the affirmative.” (Emphasis all mine.)?
Investigation and preservation of public funds amounting to billions of Naira allegedly corruptly acquired by 1st respondent and deposited with 2nd respondent by 1st respondent, pending prosecution of 1st respondent when he leaves office is exactly what appellant claims it did by approaching and securing from Idris J. the interim freezing/attachment order.
“As shown above, that is an issue that has been completely settled by the apex Court in Fawehinmi’s case, it was therefore not open to Taiwo J. to use specious arguments to reopen it or pretend he did not quite comprehend what the apex Court said on it in Fawehinmi v. I.G.P. The rules of stare decisis do not permit Taiwo J. or any other Judge for that matter to ignore the decisions of the Supreme Court under any guise.”
Finally, why should any holder of such public office worry himself about mere allegations made on pages of a newspaper by critics — Media Trial? “If the accused leader knows the allegation is untrue, it is sufficient to issue a public statement refuting the particulars of the allegations, and thereafter to move on. “Going to lawyers to threaten CIVIL legal action on your behalf is unnecessary— grossly unnecessary, with due respect.”
We must not forget that VeePee Osinbajo is our leader. A public figure. Leaders are liable to be bashed front, back, left, right and centre, by their critics and detractors, just in the same manner as the leaders’ praises are being usually being sung on a daily basis by their fans, supporters, camp-members and even mere sycophants.
Against leaders and those who occupy high public offices, allegations and harsh criticisms are sometimes made from some many quarters — by the opposition and by critics (some genuine, some malicious, some false, and so on) like I already said, I don’t think the leaders need to lose sleep over some of these. They should just ‘Remain Focused’ and maintain their ‘Stoic-Peace,’ while working hard to ensure they do not soil their hands and give their political “enemies” good and justifiable grounds to raise such allegations against them.
In law, on paper, ours isn’t autocracy or authoritarianism neither are we in an IDi-Amin-of-Uganda scenario.
Accordingly, Citizens’ right to sometimes take their leaders to the cleaners by way of criticisms, or even with allegations, is a part of “constitutional democratic” environment, such as ours is.
Generally, criticisms may sometimes not be agreeable, but it is necessary. Criticism fulfills the same function as pain in the human body; it calls attention to seeming flaws and puts true leaders on their toes.
Everyone mustn’t necessarily sing VeePee Osinbajo’s praises. And the fact that some subjects accuse him, even if wrongly shouldn’t make him lose his sleep.
We must respect people’s right to hold their individual opinions, however erratic or unfavourable such may be Section 39 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides that ”every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” Although section 39(3) CFRN provides some exceptions to this right, As ‘Voltaire’ was stated to have declared, ”I May Disapprove of What [One] Says, But I Will Defend to the Death, [One’s] Right to Say It” I invite us as mature, civilized minds to never underrate the pride of place the wisdom in the declaration occupies in human relations.
Meanwhile, in the face of criticisms and harsh opinions, or even untrue allegations, my humble advice to VeePee Osinbajo (and his fans; we all are, indeed) goes this:
No matter how good you are, someone is always going to be against you. But never let them be the limit of your success. People will always have their opinion about you despite who you are and what your capable of. ?Says Criss Jami, *”the hated man is the result of his hater’s pride rather than his hater’s conscience.”
In my conclusion, if I were a leader as VeePee Osinbajo, I would try and pay much closer attention to this counsel offered by Orrin Woodward: *”Learn to use the criticism as fuel and you will never run out of energy.”
Additionally, be who you want to be and do what you are able to, and not care about what others think. Leaders and their fans must learn to give others the freedom to be themselves. And to appreciate the differences between other people’s ways and theirs (leaders), so that the leaders would be wiser and greater.
To suppress free speech is, more often than not, tantamount to committing a double wrong: it violates the rights of the hearer as well as those of the speaker.
Respectfully,
Sylvester Udemezue (UDEMS)
