From Crown to Constitution: How ‘The King Can Do No Wrong’ Became Section 308

By P.L. Osakwe

♤ Introduction

The phrase “The King can do no wrong” once symbolised the untouchable authority of the British monarch. In Nigeria today, that same spirit lives on in Section 308 of the 1999 Constitution (as amended), not for royalty, but for elected leaders: the President, Vice-President, Governors, and Deputy Governors. This provision gives them immunity from civil and criminal proceedings during their tenure. The path from royal privilege to republican immunity reveals a striking continuity in power protection, and a deep tension between governance stability and justice.

1. The Old Doctrine: The King Can Do No Wrong

In English constitutional history, the monarch was above the law in their own courts.
This wasn’t purely about divine perfection; it was a structural rule:

Courts were “the King’s courts,” so he could not be sued without his own consent.

Wrongdoing was attributed to ministers or agents, not the sovereign personally.

Subjects seeking redress against the Crown needed a “petition of right,” granted only if the monarch said fiat justitia (“let justice be done”).

This legal fiction ensured that the ruler’s dignity and authority remained unshaken, even when wrongs were committed in the ruler’s name.

2. The Crown Proceedings Act 1947

The UK took a major step toward accountability with the Crown Proceedings Act 1947:

Allowed the Crown to be sued in contract and tort as if it were a private person.

Abolished the petition-of-right requirement.

Retained some immunity for acts involving foreign affairs, national security, and policy discretion.

Britain began dismantling the “untouchable sovereign” principle, recognising that in a democracy, the state should answer for its wrongs.

3. Nigeria’s Post-Colonial Adaptation

Nigeria inherited British legal traditions wholesale, including the notion of executive untouchability.
When the monarchy’s role ended and the country became a republic, the Constitution replaced the Crown with elected executives:

The President at the federal level.

Governors at the state level.

Section 308 now grants them:

Immunity from civil and criminal proceedings during tenure.

Immunity from arrest or imprisonment.

Immunity from being compelled to appear in court.

This immunity applies even to purely private actions unrelated to official duties , a broader scope than the UK’s current system.

4. The Shield and the Sword

Like the monarch of old, Nigeria’s executive leaders enjoy a shield: they cannot be sued or prosecuted while in office.
But they also wield a sword: they can sue others in their personal capacity during their tenure.

This imbalance creates real-world consequences:

They can bring defamation actions against journalists, but those journalists cannot sue them back until tenure ends.

They can trigger criminal investigations against opponents, while being insulated from similar legal action.

It’s a one-way legal street, protection without reciprocal restraint.

5. Fairness and Justice Concerns

Critics argue that Section 308:

Violates equality before the law (Section 17(2)(a) of the same Constitution).

Delays justice, allowing evidence to decay and political influence to grow.

Turns elected office into a safe haven for the powerful, encouraging corruption.

Breaks the balance of justice by letting one party fight with a sword while hiding behind a shield.

6. Judicial Interpretation

The courts have upheld Section 308’s absolute nature:

Tinubu v. IMB Securities Ltd (2001) immunity applies to all proceedings, civil and criminal.

Fawehinmi v. IGP (2002) investigation may proceed, but prosecution must wait until tenure ends.

Global Excellence Communications Ltd v. Duke (2007) immunity does not stop a Governor from suing others while in office.

The message is clear: the provision is airtight unless and until the Constitution changes.

7. Comparative Perspective

UK: The Crown can now be sued in most civil matters; no personal criminal immunity for ministers.

US: Sitting Presidents cannot be prosecuted criminally, but civil suits for private acts may still proceed (Clinton v. Jones).

France: Presidential immunity is time-limited and can be lifted for serious offences.

Nigeria’s Section 308 is among the most expansive executive immunities in the democratic world.

8. Reform Options

To restore balance, reforms could:

1. Limit immunity to official acts: excluding purely private conduct.

2. Symmetry rule: bar officeholders from suing others in their personal capacity if they cannot be sued themselves.

3. Judicial waiver mechanism: allow the Supreme Court or a special tribunal to lift immunity in extreme cases.

4. Time-bound investigations: require that evidence gathering be completed during tenure, ready for immediate trial once immunity lapses.

Conclusion

Section 308 is not a historical accident. It is the direct heir of a royal doctrine designed to protect power, transplanted into a republic and expanded beyond what its colonial parent still accepts. The irony is stark: Britain moved toward state accountability; Nigeria entrenched executive invulnerability.

If our Constitution is to reflect the values of justice, equality, and accountability, we must confront this legacy, and decide whether the same hand should hold both the shield of immunity and the sword of legal attack.