A senior lawyer, Prince Ajibola Oluyede has said Vice-President Yemi Osinbajo has the constitutional right to waive his immunity.
He said the immunity under Section 308 of the Constitution was a personal right which can be suspended by the holder.
Osinbajo, on September 26, disclosed his readiness to waive his constitutional immunity to clear his name over allegations that he received N90 billion from the Federal Inland Revenue Service (FIRS) for the funding of the 2019 elections.
The vice president, through his verified twitter handle, @ProfOsinbajo, said the waiver would allow for a robust adjudication of the allegations levelled against him.
A former deputy national publicity secretary of the All Progressives Congress (APC), Comrade Timi Frank, on September 23, alleged that the VP was facing trials following an alleged N90bn scandal, and that recent developments involving the VP had nothing to do with 2023 politics.
But the vice president also announced that he had instructed his lawyers to commence legal action against Frank and one Katch Ononuju for allegedly defaming his person.
Reacting to the situation, Oluyede said Osinbajo’s decision was lawful.
He said: “Can a person protected under Section 308 of the Nigerian 1999 Constitution waive his immunity from issuance of civil or criminal process?
“The answer is yes”.
“The section makes it clear that it is a personal right that accrues to ‘a person’ holding any of the specified offices.
“The erroneous thinking that it protects the office and cannot be waived is clearly untenable in view of the clear words of that section which stipulates this immunity for “a person to whom this section applies during his period of office”
He said conceding that the immunity is designed to enable persons operate in those offices without fear of personal civil or criminal liability is not enough basis for seeing this as a right enuring in favour of all Nigerians or the State.
According to him, “the operation of this provision is not to restrain the officeholder from issuing civil process but to restrain others from proceeding against him whilst he holds that office.
“This means that where appropriate the officeholder may issue process to protect his personal rights.
“The question that flows from that is whether, in a circumstance where an officeholder opts to issue process against a person, would a counterclaim in that action be invalid pursuant to section 308(1)(a).
“The law and practice of immunity stipulations make it clear that immunity may be waived the only question is by whom. It is also clear from relevant authorities and treatises that the issuance of civil judicial process by a person enjoying immunity is a constructive waiver of that immunity for the purpose of that proceeding. See: United States v. Deaver, Crim. No. 87-0096 (D.D.C. June 22, 1987).”
He said furthermore, where an office holder enjoying immunity so chooses, he is entitled to waive even his immunity from criminal process.
He added”The immunity under Section 308 is not equivalent to the Sovereign immunity misapplied in the Fela Kuti case pursuant to the 1963 “Republican” Constitution.
It is therefore clear that a person who enjoys immunity under Section 308 of the Nigerian Constitution May waive such immunity himself in order to issue civil process and/or in a bid to clear his name from malicious falsehood May yield to criminal process by waiving his immunity.
The confusion in the minds of some may also be due to the misconception that the immunity under Section 308 is a Sovereign immunity which accrues to the State and not to the person. However what that would mean is that only the State can waive that immunity.
However, immunity under Section 308 is different from Sovereign immunity”
