You cannot waive your immunity, lawyers tell Osinbajo


Vice President, Yemi Osinbajo

Lawyers yesterday said Vice President Yemi Osinbajo (SAN) cannot waive his immunity as he threatened on Tuesday in a bid to defend himself over a fraud allegation days ago.

Vice President, Yemi Osinbajo
Vice President, Yemi Osinbajo

The lawyers, Dr. Kayode Ajulo and Innibehe Effiong, in separate reactions with Saturday Telegraph, said there is no constitutional ground on which Osinbajo can take such an action.

“I will comment on this visà- vis the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). For reference purpose, section 308 provid53es thus: ‘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 ascer taining 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.

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‘(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,’” Ajulo stated.

Speaking further, he said: “The implication of the foregoing provision of the law is that the person holding the office does not have the right to waive the immunity because any such waiver is ineffective as the immunity is not that of the person holding the office but of that particular office he represents during the tenure of the office. “This position further found backing in the use of the word “shall” as the operative word in the section which word admit of no discretion whatsoever.

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The Nigerian courts have further reiterate this position in a number cases. “In my view, the Immunity granted to the incumbent of the relevant office under section 308 (1) (a) of the constitution prescribes an absolute prohibition on the courts from entertaining any proceedings, civil or criminal, in respect of any claim or relief against a person to whom that section of the Constitution applies during the period he holds office. “No question of waiver of the relevant immunity by the incumbent of the office concerned or indeed, by the courts may therefore arise.

In my view, the Court of Appeal declined to entertain the appellant’s appeal pending before it as to do otherwise would amount to continuing the plaintiff/ respondent’s suit against the defendant/ appellant, a suit which under section 308 (1)(a) of the 1999 Constitution shall not be continued against the appellant while he remained Governor of Lagos State. “The decision of the Vice President to waive his immunity, in as much as I will like to commend that position is unprecedented in our democracy, unless the constitution is amended and an express waiver is permitted or provided therein, the VP cannot constitutionally waive his immunity. “Any waiver of the immunity of the VP is unconstitutional, illegal null and void and of no effect whatsoever.”

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In his own reaction, Effiong stated that Osinbajo lacks the constitutional power to waive his immunity, adding that the Supreme Court had ruled in the matter of Bola Tinubu vs I.M.B Securities Plc that a person holding any of the executive offices   that has immunity cannot waive it. “Based on the extant constitutional regime, Vice- President Yemi Osinbajo cannot waive his immunity. The Supreme Court decided in 2001 in the case of Tinubu v. I. M. B. Securities Plc that the constitutional immunity under Section 308 of the constitution cannot be waived by the persons to whom the provision is meant to protect.

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