Discordant tunes trail proposed immunity for principal legislative officers

Just last week, members of the National Assembly came up with a proposal to amend section 308 of the 1999 Constitution, which provides immunity from criminal prosecution against the President, his vice, governors and their deputies to ensure principal officers of the parliament both at federal and state levels enjoy same protection. This, obviously, is a fallout of the lingering feud between the executive and the legislative arms of government, which has culminated in the prosecution of the Senate President, Bukola Saraki, and his deputy, Ike Ekweremadu, on account of forgery of the Senate Standing Rule for the eight Assembly. The quest for immunity for principal officers is generating debate among legal practitioners. While some maintained that lawmakers already enjoy a level of legislative immunity which protects them from trial based on their actions in chambers and so, do not deserve anything more, others hold that the legislative arm should be shielded against criminal prosecution while in office, just as their counterparts in the executive. JOSEPH ONYEKWERE, BRIDGET CHIEDU ONOCHIE, Abuja and GODWIN DUNIA report.

A Lagos-based Senior Advocate of Nigeria, Chief Felix Fagbohungbe, said it is unreasonable to grant immunity to the principal officers of the parliament, because they already have one.His words: “It is unreasonable to do so. We already have immunity for parliamentarians, which pertains to statements made in chambers. That is enough. The Constitution granted immunity to President and governors in order to protect them from distractions. The lawmakers do not discharge the same function as the executives. They don’t occupy the same position. The lawmakers have not convinced us of the reason why they should have immunity.”

He argued that the frequency upon, which lawmakers change leadership is a further slur to the proposal. “You know that the lawmakers can change their leaders at will, so it won’t augur well to give immunity to that office beyond what has already been given to them. That kind of immunity is not good for parliamentarians. I think they have their immunity”, he insisted.

Also, a senior lawyer in Abuja, Mr. Adekunbo Okeaya-Inneh (SAN) warned that there is need to thread carefully with the issue.He stated that despite the experience of the senate president and his deputy, it doesn’t mean that section 308 should be amended to apply to them.“Though, the leadership of the senate feels insecure due to the prosecution of the principal officers, that doesn’t mean they should have immunity. When you look around the world, I can’t think of anywhere, where legislators have immunity.

“I do not think it is the right way to go. Again, it depends on the purpose the amendment wants to achieve. If the purpose is to protect the legislators from prosecution, it is wrong, but if the purpose is to allow them to be able to do their work, then it’s good”, he said.Kehinde Eleja (SAN), in his own opinion, considers the quest for immunity as strange. He is of the view that such clause does not exist in other democratic jurisdictions.

His words: “Our presidential system was borrowed from other democracies and in those places, they do not have history of immunity for members of parliament. Therefore, one may say that it is even historically a strange development. “However, since law is a dynamic process, for the fact that it is not done some where does not mean it will not be done elsewhere.”

He advised the National Assembly to consult widely before pushing for such amendment. “They should organise public hearing to enable members of public to put their views across on the matter. But speaking for myself, I don’t think it is necessary now. Recall that even for members of the executive that are enjoying it now, there is serious clamour that it should be abolished.

“If somebody is now saying that it should be extended to the leadership of the parliaments, especially now that Nigeria is confronted with several challenges, I do not support it. But of course, if it is the wish of majority of Nigerians, there is nothing wrong in having it. Speaking for myself, I don’t think it is right now”, he stated.

For Dr Abiodun Layonu (SAN), the idea is unacceptable. “I don’t support that idea. I think like everything Nigerian, they will abuse it. In spite of whatever travails they claim they are having today, that is not the solution. It is like if for instance we have somebody good and we extend the persons tenure, what happens when a bad person comes, because we have already extended the tenure of office? So whatever they think today, that they are being treated wrongly by another arm of government, the solution is not to go and give immunity to the leadership of the legislature. It will create more problem for us. Like I said, it will be abused like everything Nigerian.

“I don’t support it. And I think seriously that Nigerians should resist it. It is not being personal; I don’t care who is there today. As a matter of principle, we should not. We have enough problems in our hands than to go and be creating more problems to ourselves”, Layonu stressed.Similarly, the head of Chambers, Afe Babalola and Co. Lagos office, Mr Olu Daramola (SAN) said the idea is absurd. “There is no justifiable reason for it. It bothers on recklessness and legislative rascality. The earlier our distinguished senators realize that immunity is not impunity, the better for them and the country. These people are to legislate for good government, but nothing good has come out of the hallowed chamber since the inception of the current senate”, he said, adding that the move is bound to fail since it requires constitutional amendment. “The National Assembly lacks the mandate to unilaterally amend the constitution”, he added.

On his part, an Abuja-based Senior Advocate of Nigeria, Joe Agi insisted that lawmakers already enjoy some degree of constitutional immunity. His words: “The legislators already have immunity as far as I am concerned. They have what is called Legislative immunity. They are only prone to prosecution for what they do outside the National Assembly but whatever they do within, they are protected by Legislative Immunity.”
But a Benin-based lawyer, Mr Ferdinand Orbih (SAN) thinks differently. According to him, recent developments in respect of the leadership of the National Assembly has made him begin to fancy the idea. For him, the parliament might as well be protected from criminal prosecution, because what is good for the goose is also good for the gander.

He said: “Recent experience has made me to have a rethink. I used to think that immunity for president and governors should be done away with in criminal matters. But we leave in strange times now. We have to do something to protect the leadership of the parliaments.“So, if we are going to do away with immunity clause, we do away with it across board. If it is going to remain for the executive, we should also have it for the legislature.

“If you look at what is going on now, you wonder if they don’t deserve to be protected. Of all the arms of government, the legislature is the most vital, because it acts as a check on the seemingly limitless powers of the executive. And if you subject parliament to executive control, that is the end of your democracy. We need to thread carefully.

“Our democracy is still growing. We should try as much as possible not to subject it to dictatorship because if we do, it will burst. Our institutions have not grown to the level where it can withstand some of the pressures we are putting on them.”

In the same vein, Principal Partner, Jireh & Graeys Attorneys, Mr. Norrison Quakers (SAN), said If the National Assembly vested with lawmaking power and in the course of the exercise of that power has made a law conferring immunity on the executive by the provisions of section 308 of the Constitution of 1999 as amended, there is nothing wrong to get them accommodated in the same section.

“I do not think, it is out of place to amend section 308 (3) to include the Senate President and the Speaker and their deputies with immunity against prosecution, while in the performance of their legislative functions”, Quakers said.

He, however, pointed out that the immunity is not in perpetuity. To him, in a situation where criminality is alleged at the time such individual is still in office, such a person could also be investigated pending when he vacates office, then prosecution can commence.

“If criminality is alleged, investigation can be conducted and they will be prosecuted after tenure of office”, he concluded.Also, an Abuja-based lawyer, Jeph C. Njikonye, said since the three arms of government are co-equals, they should be entitled to same and similar privileges. According to him, doing otherwise raises a question of equity.

He said: “We run a federal system of government and in doing so, we operate three arms of government of which powers and duties are separated. The principal officers of the executive, for instance, the President at the federal level and governors at the state level all enjoy immunity. You cannot prosecute them while they are in office.

“It follows logically that the equivalent of those principal officers in the other arms of government should have the same privilege, otherwise, where is the equality? Equality is equity.“It is only rational in my view, legally speaking, not political view that since constitutionally, these three arms of government are co-equals and they perform distinct functions in their areas of jurisdiction, they should all be entitled to the same or similar privileges.”