Nigeria: Osinbajo lacks constitutional power to waive immunity

Last updated on September 11th, 2021 at 03:23 pm

Lagos-based lawyer Inibehe Effiong on Thursday said Vice-President Yemi Osinbajo does not have the constitutional power to waive his immunity.
Effiong said this in a statement while reacting to Osinbajo’s vow to waive his constitutional immunity to challenge what he claimed to be false allegations against him and his office in the media after Timi Frank alleged that Osinbajo received N90billion from the Federal Inland Revenue Service for the 2019 election and could not account for the money.
Effiong said 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 cannot waive immunity but can be investigated.
He added that there was no need for anyone holding political office to waive immunity in order to be probed by a law enforcement agency.
He said, “Based on the extant constitutional regime, the Vice-President Prof. 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.
“In the said Tinubu’s case, former Governor Bola Tinubu decided to waive his immunity to defend a civil claim initiated against him. The Supreme Court barred the then governor of Lagos State from proceeding with the suit.
He continued, “I wish to state that the immunity under Section 308 of the Constitution does not extend to criminal investigation by law enforcement agencies. This was the position taken by the Supreme Court in 2002 in the celebrated case of Chief Gani Fawehinmi v. Inspector General of Police.
“Provided the investigation does not result in the arrest or detention of the Vice President or compelling his appearance, he can be investigated.”
Effiong, however, said although Osinbajo could not be sued, he had the power to sue for defamation. He said the law empowers anyone holding such an office to be able to sue to a certain extent.
“However, it should be noted that notwithstanding the immunity clause, the Vice President has the right to sue for defamation of character. While legal proceedings cannot be initiated against him, the Supreme Court and the Court of Appeal have decided in several cases that the immunity clause does not prevent the beneficiaries from suing for defamation of character.
“In other words, Prof. Osinbajo can sue but cannot be sued. This was the position taken by the Supreme Court in 2007 in the case of Global Excellence Communications Ltd. V. Donald Duke.”