By Hameed Ajibola Jimoh Esq.
There have been several occasions where the executive arm of government at either the Federal or the State Government level (including some of their established law enforcement and security agencies or officers in their respective civil service) disobeyed court’s orders and little or nothing has always or almost been done to bring such persons to order under the law, especially on contempt of court due to the cover or immunity of the executive arm of government conferred by section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)-herein after referred to as the Constitution- against any prosecution while in office which has since been abused by this executive arm of government with due respect. This constitutional amendment period in my humble view (which is a period where the amendment of the 1999 Constitution wholly is ongoing) would serve the opportunity of an exemption of contempt of court from executive’s immunity as conferred by the section 308 of the Constitution (supra), hence, this topic as a recommendation to improve and promote the rule of law and justice.
The ‘Executive’ referred to here in this paper refers to one of the three arms of government as established by the doctrine of separations of powers, the two other arms being ‘the legislature’ and ‘the judiciary’ respectively. The creation of the ‘executive’ has been made by section 5 of the Constitution.
The above section 5 having created the ‘Executive’ arm of government, in my humble submission, same covers ‘the President of the Federation’, ‘the Government of the Federation’ and all other appointees of these two Chief Executive Officers and other officers in the public service of the Federation and of the States of the Federation. There and then, the issue of ‘executive disobedience of court’s orders’ by either of the Chief Executive Officers and especially some law enforcement and security agencies of government (and in some other instances by some officers in the civil service or public service) acting under the control of these Chief Executive Officers has always been to the debase on the ‘independence of the judiciary’, especially in regard to the obedience to the summons of a court of law and or the decision and or orders made by a court of law against and or affecting any of these government’s agencies. This ‘executive disobedience’ either being infuriated by the possession of firearm and ammunition and other arsenal of the State to the oppression, intimidation and or cohesion of the judiciary and its independence is in my humble view indeed an affront on the principle of democracy. I have observed that it has always been very difficult if not nearly impossible for a court of law to enforce its powers on either the President or the Governor of a State if same disobeys its orders and this is made impossible by the concept of ‘immunity’ as a restrictive clause against the court and or any person to punish those executives for contempt. The said section 308 of the Constitution provides thus: ‘(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 in 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 such 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.’
I am of the recommendation that for there to be an effective ‘independence of the judiciary’, the provisions of section 308 of the Constitution which provides for the immunity of the executive arm of government must be amended to ‘exempt punishment for contempt of court’ from the restrictions so that the government does not need to wait for the executive concerned to conclude his term(s) in public office before he could be punished for contempt of court even if for an imprisonment of at least a 24 hours would be served on such executive officer disobeying the order made by a court of law without such order having been set aside by a competent court of law empowered to do so. If this contempt of court is exempted from the restrictions and or immunity clause, then, the executive in my humble view, would have no option than to always obey the order of court. It might be argued that if the executive has been made to face trial, no one would have been able to administer the executive office. I respectfully beg to differ on this likely opposing argument. My argument and submission are because, there is a deputy to deputise for the elected office holder while in such a case where both the chief executive officer and his deputy are found suspected to be culpable, then, there are provisions in the constitution on what should happen in a situation where there is incapacity of these executives which can also save the situation of punishment for contempt. See for instance section 146 (1) and (2) of the Constitution which provides thus ‘(1) The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 or 144 of this Constitution. (2) Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of Senate shall hold the office of President for a period of not more than three months, during which there shall be an election of a new President, who shall hold office for the unexpired term of office of the last holder of the office.’ The good news is that Nigeria is likely not to have any case of such executive disobedience of court’s orders that would have warranted punishment for contempt of court because none of the executives would like to be jailed and be embarrassed in the public glair! On the usurpation of judicial powers by the executive arm of government, the court of law has held as follows in the case of ABBA v. JAMB & ANOR (2014) LPELR-24205(CA). “Judicial powers under Section 6 of the 1999 Constitution are not vested in private persons, administrative tribunals or other authorities. The Constitution is clear as to who should perform judicial acts. And since it is the exclusive function of the Judiciary to exercise judicial function, any member of the executive or of an administrative body who interferes with those functions must be prepared to face the consequences of such interloping conduct by way of an action by a person aggrieved.”.
Finally, I therefore humbly recommend that ‘Executive Immunity’ should not cover judicial punishment for contempt of court. So, the legislature (at both the National Assembly and the Houses of Assemblies of States) has roles to play in the amendment of the constitutional provisions in section 308 on immunity of the executives, especially since the amendment of the 1999 Constitution’s process is still ongoing, this is indeed the right time to effect this recommendation.