By Abubakar Muhammad
The Constitutional Framework of Fundamental Rights
The 1999 Constitution of the Federal Republic of Nigeria (as amended) entrenches fundamental rights in Chapter IV. Sections 35 to 41 guarantee rights to liberty, expression, assembly, association, and movement, among others. These rights are further strengthened by the incorporation of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9 LFN 2004. In Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228, the Supreme Court confirmed that the African Charter, being part of Nigerian law, can be invoked directly in domestic courts to challenge violations.
In order to protect these rights, Section 46 of the Constitution gives any person whose rights have been, are being, or are likely to be infringed the right to apply to a High Court for redress. The Fundamental Rights (Enforcement Procedure) Rules 2009 further provide an easy and flexible mechanism for initiating such actions. The real difficulty, however, lies in determining whether certain high-ranking officials such as a sitting Governor can be sued in their personal capacity.
The Immunity of Governors under Section 308
Section 308 of the Constitution expressly provides that a Governor of a State shall not be subjected to civil or criminal proceedings during his tenure in office. The provision also prohibits arrest or imprisonment of a sitting Governor. The rationale is to enable such officials to discharge the burdens of governance without being distracted by litigation.
The effect of this immunity is that a sitting Governor cannot be personally sued in Nigerian courts while in office, even for alleged violations of fundamental rights. This does not mean, however, that executive actions taken under his direction cannot be challenged. The proper legal approach is to institute proceedings against the State Government or the Attorney-General of the State, who represents the Governor in legal proceedings. This principle ensures that while the Governor himself remains shielded by immunity, government actions are not placed beyond judicial review.
The Legal Position of the Commissioner of Police
Unlike Governors, Commissioners of Police do not enjoy constitutional immunity. They are statutory office holders whose powers and duties are regulated by law. When a Commissioner of Police issues directives or enforces measures that infringe fundamental rights, he may be sued in his official capacity. Nigerian courts have in fact entertained several suits against the police.
For example, in IGP v. ANPP (2008) 12 WRN 65, the Court of Appeal condemned the police practice of demanding permits for peaceful rallies and declared such action unconstitutional. Similarly, in Enwere v. COP (1993) 6 NWLR (Pt. 299) 333, the court reaffirmed that the police cannot exercise powers in a manner that violates fundamental rights. These cases demonstrate that police authorities, including Commissioners of Police, may be held accountable in court when they act beyond the bounds of law.
Reconciling Immunity with Human Rights Protection
The Nigerian legal system strikes a delicate balance between protecting public officers from frivolous suits and ensuring that fundamental rights are not rendered illusory. While Section 308 protects Governors personally, the Constitution still preserves avenues for citizens to challenge unlawful state actions. By suing the state government where the Attorney-General of the State, who is the chief law officer, can be joined as a nominal party, litigants can effectively question any executive decision that infringes rights. On the other hand, because Commissioners of Police are not covered by Section 308, they remain directly amenable to the jurisdiction of the courts.
The courts have been clear that the enjoyment of rights cannot be subjected to executive discretion. In Arthur Nwankwo v. State (1985) 6 NCLR 228, the court strongly warned against actions that undermine constitutional freedoms. Thus, while immunity exists, it is not intended to license arbitrariness.
In conclusion, from the foregoing analysis, the legal position is clear: a sitting Governor cannot be personally sued for violation of fundamental rights due to the constitutional immunity under Section 308, but the legality of his actions may still be tested in court by proceeding to institute a case against the state government or Attorney-General of the State. By contrast, the Commissioner of Police does not enjoy immunity and may be sued directly for unlawful acts affecting fundamental rights.
This principle was recently illustrated in the Gombe State case, where a lawyer brought an action against the State Government and the Commissioner of Police, challenging the imposition of a curfew. While the curfew itself is not the focus of this paper, it demonstrates the practical application of the rule: even though the Governor could not be sued personally, the government and the Commissioner of Police could still be called to account in court.
The Nigerian Constitution thus maintains a workable balance, protecting Governors from personal litigation during tenure while ensuring that citizens’ rights remain justiciable through actions against state institutions and non-immune public officials.
Abubakar Muhammad (Kanawa) from Gombe State is a level 3 student, Faculty of Law, Bayero University, Kano.
Source: loyalnigerialawyer
