Giwa Ihesha
Member
“OFFICER, ARREST HIM!” “SIR, YOU CAN’T ARREST THE PRESIDENT LIKE THAT.” 
Imagine a sitting Nigerian President is accused of committing a criminal offence.
Someone asks:
“Why hasn't the police arrested him?”
The answer takes us to an important provision of the Nigerian Constitution.
The issue is constitutional immunity.
Under Section 308 of the 1999 Constitution, the President, Vice-President, Governor and Deputy Governor enjoy immunity from certain criminal and civil proceedings while they remain in office.
In simple terms, while a person covered by Section 308 is still in office, certain legal processes including arrest or imprisonment pursuant to criminal proceedings are constitutionally restricted.
So, if a sitting President is accused of committing a crime, it is not simply a matter of:
“Call the police and arrest him.”
There are constitutional protections that must first be considered.
But then comes the question many people ask:
“Does that mean the President can do anything and the law cannot touch him?”
No.
Constitutional immunity is not the same thing as saying the office-holder is above the law.
The protection is tied to the person's status while holding the relevant office.
Once the person leaves office, the constitutional immunity under Section 308 no longer applies merely because he was once President.
That means the end of the tenure can change the legal position regarding proceedings for alleged offences, subject of course to the ordinary rules of criminal procedure and any other applicable law.
And there is another important point.
CAN A PRESIDENT BE REMOVED FROM OFFICE?Yes.
The Constitution provides a procedure for removing the President from office through impeachment proceedings on grounds of gross misconduct.
But impeachment and criminal prosecution are two different legal processes.
Impeachment is concerned with removal from office.
Criminal prosecution is concerned with determining criminal liability.
So, don't confuse the two.
THEN WHAT IS THE PURPOSE OF THE IMMUNITY?The constitutional idea is to prevent certain legal proceedings from paralysing the functions of the office while the person is still serving.
It does not mean:
“The President can never be investigated.” “The President can never be questioned about anything.” “The President is above the Constitution.” “A President can never face legal consequences.”The exact scope of Section 308 must always be considered carefully, including its exceptions and the particular legal process involved.
THE SIMPLE LESSONIMMUNITY IS NOT THE SAME AS INNOCENCE.
It is a constitutional protection attached to certain offices for the period during which the person occupies that office.
So the question is not simply:
“Can a President commit a crime?”
The more important legal question is:
“What does the Constitution allow or restrict while that person is still in office?”
That is where Section 308 becomes very important.
If you were asked this question, what would your answer be?
Can a sitting Nigerian President be arrested like an ordinary citizen?
We are always here to guide you, explaining law in very simple English for you to understand.
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