Graft Fight: Why immunity clause in the 1999 Constitution must go—Ndarani Mohammed, SAN  


A respected silk, Mohammed Ndarani Mohammed, SAN, has sought for the outright removal of immunity clause from the 1999 Constitution  if corrupt practices and arbitrariness are to be curbed.

Section 308 of the 1999 Constitution of Federal Republic of Nigeria confers immunity on 74 political office holders in the country against both civil and criminal prosecution.

The affected public officers include the President, Vice President, governors and their deputies.

Ndarani, SAN who also identified other sections in the 1999 Constitution that should either be amended or removed outright said the nation’s law book needs a wholesale legal surgery for the country to make headway in the fight against corruption and abuse of power.

As far back as the last quarter of 1999 soon after the constitution was signed into law, prominent lawyers including the doyen of the Nigerian bar, Chief FRA Williams, SAN, had drawn attention of stakeholders to the ‘evil’ provision in the nation’s law book.

The section had ignited hot debates in various fora.

Unfortunately, with successive amendments to the constitution, the immunity clause has remained in the constitution for the chief executives.

Specifically, the controversial section provides that no civil or criminal proceedings can be instituted against the President, Vice-President, Governor or Deputy Governor and they cannot be arrested or imprisoned or a process of any court requiring or compelling their appearance can be issued against them.

Ndarani Mohammed stated that Section 308 of the Constitution, often referred to as  Immunity Clause “is the spinal cord of corruption in Nigeria”.

The senior lawyer attributed the hydra-headed socio-economic and political problems bedevilling the country’s growth to the immunity being enjoyed by governors and their deputies while in office.

“Some of the problems in this country are caused by governors and their deputies because some of them hide under Section 308 of the Constitution to perpetrate all manner of things.

“In view of this, I call on the National Assembly to look at Section 308, nullify it, water it down, strike it down or remove it to a level, where we can have accountability and responsibility from governors.

In a chat with judiciary correspondents in Abuja, Ndarani insisted that corruption, which virtually has eaten deep into the fabrics of the country’s democratic governance is traceable to the immunity clause.

He therefore urged the National Assembly to expunge the section from the constitution, if the fight against corruption must be won.

“I don’t believe in Section 308 of the 1999 Constitution, which bestows immunity on the President, Vice-President,  Governors and Deputy Governors of 36 States of the Federation.

“Globally, immunity clause can be acceptable for the President and the Vice-President, but honestly, I am not totally happy with it being applied to governors and deputy governors.

“The immunity clause (section 308) that is embedded in the 1999 Constitution is mischievous, contradictory and violate the rule of law, Ndarani said.

“Immunity Clause does not take cognizance of equality before the law, neither does it take cognizance of fair hearing, nor equal access to the court.

“If all the governors of the 36 States of the Federation are immune, how can you promote equality before the law,” the SAN queried.

“This set of  political office holders can’t be prosecuted or even be compelled to come to court to  give witness. Globally, no country has this in its Constitution, he posited.

“How will you fight  corruption (in Nigeria) when you know that some group of people cannot be sued or prosecuted, yet we operate a constitution that provides for equality of all citizens before the law.

“Immunity Clause gives room for impunity for certain group of people, and certain number of governors are using Section 308 of the Constitution for shade.

“If we are seriously fighting corruption, Section 308 and some other sections should be removed for there to be even development and economic prosperity” Ndarani Mohammed said.

He lamented that having moved round the world, and conducted researches, he hasn’t seen where governors and their deputies are immune from prosecution.

“Even Section 44(3) of the Constitution, which is an impediment to resource control should also be expunged so that States can be allowed to produce and grow their economies because the Federal Government alone cannot provide all the needs of States.

While supporting the call for a new constitution, he submitted that Nigeria doesn’t need “one to be panel beaten around. Even Section 16, which talks about economy of the country should be  reviewed.

“Nigeria needs a complete legal surgery” Ndarani said.

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