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Why legislative immunity is unnecessary for principal officers


Femi Gbajabiamila

Recently, the House of Representatives began the process of passing a bill seeking to grant immunity to principal officers of the National Assembly and State Houses of Assembly. Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE reports that many Nigerian lawyers are opposed to the move and consider it unnecessary at this time.

Possibly motivated by the travails of the immediate past president of the senate, Bukola Saraki, who endured an extremely unpleasant court trial for the substantial part of his four year reign over alleged breach of code of conduct and forgery of Senate rules and or the quest to enjoy similar privileges as the head of the executive arm of government, Nigerian lawmakers are now pushing to insert immunity in the constitution for its principal officers. 

The bill is titled ‘Bill for an Act to Alter Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 to Extend Immunity to Cover Presiding Officers of Legislative Institutions.’ Penultimate Tuesday, the House of Representatives passed the bill for a second reading. The bill sponsored by Olusegun Odebunmi, lawmaker representing Ogo-Oluwa/Surulere Federal Constituency of Oyo State seeks to alter Section 308 of the 1999 Constitution, which precludes the president and vice president as well as governors and their deputies from both civil and criminal trial while in office. They now want the section to extend the immunity to cover presiding officers of legislative institutions.

Section 308 provides as follows under subsection (1) “Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section -(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office; (b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued: Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.”

Subsection (2) says: “The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. (3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.” Subsection 3 of the section spells out specifically the persons to whom the privilege of immunity from prosecution applies as the president, the vice president, governors and deputy governors.
Consequently, the alteration is intending to extend immunity to four presiding officers of the National Assembly and those of the state Houses of Assembly, two in each of the 36 states of the federation. Leading the debate on the bill, the sponsor, Odebunmi, said the proposal was to protect the legislative arm of government. He said: “Extending immunity to the presiding officers of the national and state assemblies is not a means of shielding them from answering any question generated by their actions, or preventing members of the House from exercising their powers of choosing or changing their leaders, when required as provided for by the laws, but a genuine way of protecting the most sacred institution in a democracy.” 

Ironically, many lawmakers themselves opposed the bill, including the Speaker of the House, Femi Gbajabiamila, who noted that he would only support the proposal if it would take effect from 2023 after the end of the tenure of the current leadership. Notwithstanding, the House resolved to take the bill to Nigerians through a public hearing.
But many Nigerians are wondering why this kind of alteration has become imperative for the lawmakers, considering the fact that the entire members of the National Assembly enjoy immunity against prosecution for anything they say at the floor of the House. There are others, who also wonder why this is so important for the lawmakers in the face of more serious and pressing national issues that require immediate attention, including the restructuring and devolution of powers among others.  In January 27, 2018, President Muhammadu Buhari assented to the Legislative House Power and Privileges Act to provide protection or immunity for decisions taken by members of parliament in the country.

The law grants the Legislative Houses in the National Assembly and State Houses of Assembly immunity from litigation for actions taken in plenary or committee proceedings of the House or committee. The law also strengthens the power of the Legislators to carry out their Law making functions. These include power to summon any person to appear before her, give evidence, as well as power of an officer of the legislative House to arrest any person who commits an offense against the Act. With the new development, it seems the lawmakers are not yet satisfied with the existing law. They want their principal officers to enjoy exactly the same kind of protection their counterparts in the executive arm of government enjoy. But if altruism and the need to ensure fairness and equity for leaders of the different arms of government motivated this protection-seeking venture, where does this leave the heads of the judiciary in the country?


Lawyers react to the proposal
Judicial reforms advocate Mr. Yemi Candide-Johnson (SAN) describes the bill as cynical and self-serving. According to him, the bill has nothing to do with the functioning of the parliament rather than arrogance, vanity and misperception of their function. He maintained that for the actual work of a parliament, immunities are already in existence for words spoken and actions taken in that function.
His words: “What is being proposed is immunity from civil and criminal process and therefore the impunity from legal responsibility. It is amazing and scandalous; and shows not only bad intent but a lack of responsibility. There are numerous urgent issues, which should grab the attention of our under-worked and over-dressed parliamentarians such as security, education and economic transformation as well as the 4th industrial revolution. They should serve the people and not aggravate them.”
Also responding to the issue, Professor of international law and jurisprudence, Akin Oyebode said the legislators are definitely misconceived, self-seeking and self-motivated. “Universally, immunity avails lawmakers in relation to their deliberations and other activities within the legislative chambers. In a society suffused with poverty, ignorance and squalor, it is really regrettable that our lawmakers would deem it fit and proper to be chasing shadows and waging quixotic battles,” he exclaimed.
Dr. (Chief) Fassy A. Yusuf, a lawyer and lecturer, University of Lagos, toeing the same line of argument said it is a misplaced venture lacking in patriotism, good conscience and sincerity. According to him, it is unfathomable that the National Assembly has little to do at this critical period when the nation is on fire. “Are they in competition with the Executive? This is sad and a disservice to the good people of this country. The venture is even coming at a time Nigerians are clamouring for the removal of the immunity clause for President, Vice President, Governors and Deputy Governors to promote good governance and remove licentiousness.

The national assembly should not add insult to the injury we are nursing,” he warned, adding that the proposed immunity clause would make the beneficiaries to be more brazen. “And, what will happen to the leadership of the judiciary?” He asked. Yusuf stressed that the act amounts of legislative rascality.
For Logos lawyer, Nwachukwu Odoemela this immunity of a thing, which the 9th Assembly has had a renewed urge and vigour to arrogate to itself by seeking to pass it into law for its principal officers goes beyond their primary role of law making. He noted that it is tainted with suspense. “One will recall that the 8th Assembly, which was marred with executive face-off at the end dropped the idea whereas these lawmakers pushing for immunity could have kow-towed the same line and move on the line of honour as this will definitely mock the nascent democracy, which the legislature is its custodian.
“By allowing the presidents and the vice presidents, governors and their deputies immunity is a deliberate cloak on these class of people from multiplicity of litigation, which will distract them from state duties not with reference to the principal officers of the National Assembly members,” he pointed out.

Lagos based Senior Advocate of Nigeria (SAN) and former governorship aspirant in Osun State, Dr. Abiodun Layonu even went a little further to urge Nigerians to protest against the bill. He also advised the president to ensure he vetoes it if the lawmakers recalcitrantly pass the bill. “Nigerians should protest this and if ever they passed it the president should veto it. It is retrogressive.  Whilst the world is moving forward with more openness and accountability even in office, they are trying to move back. They do not in my humble opinion need it. There is no justification for it at all.  It will be a needless and self-serving amendment to the Constitution. It should not and must be countenanced,” he insisted.
Another lawyer, Mr. Stephen Azubuike explained that legislative immunity for members of the legislature is a common practice. It is enough, he said, that lawmakers enjoy freedom from prosecution for anything they say on the floor of the House or Senate. “However, extending such immunity to the level where the principal officers are to be immune from facing criminal charges, while in office is most undesirable.
“We are unable to see any compelling reason such constitutional amendment by legislative intervention is needed at this point. The former President of the Senate faced his charges and we did not see how the prosecution solely hampered the progress of legislative business in Red Chamber and at the National Assembly as a whole. What we experienced were some setbacks brought about by pure political power-play and not precisely by the prosecution at the Code of Conduct Tribunal,” he explained.
Also, speaking, Mr. Theophilus Akanwa, Lagos-based lawyer said immunity for political office holders has not brought any good in the country, looking at the looting of the public treasury by politicians. His words: “Former governor of Abia State, Orji Uzor Kalu is one of the latest cases on hand. He has just been convicted of corruption while in office after so many years when he left office. I have always been an advocate for the abolition of section 308 of the constitution of the Federal Republic of Nigeria, 1999 as amended.
“I am against all these shield in the name of immunity. It has not served us any good but aided impunity, theft and corruption. The National Assembly should focus on the core reasons for electing them. Let them remove the immunity for the President, Vice President, Governors and Deputy Governors. Once this is done, Nigeria will be better of with rapid infrastructural development and accountability.”
Human rights activist, Yinka Oyeniji is of the view that the lawmakers have an uphill task on the proposed bill. At a moment, he stressed, when other governors including Oyo State are enacting criminal prosecution laws relating to the fight against corruption and touting an abandonment of their own immunity clauses to face prosecutions where necessary, it is very shameful that the lawmakers would even consider “this preposterous bill.”
Oyeniji believes that the move makes nonsense of the anti – corruption drive of the Federal Government of which the lawmakers play a significant part. According to him, there are many existing legislations to be amended for “this obnoxious idea to see light of day.” He said: “First, it would require an amendment to the Constitution, which recognises immunity for only chief executives of state governments. The affected legislations which guide the conduct of public officers of which legislators are a part include Economic and Financial Crimes Commission Act, Code of Conduct Bureau and Tribunal Act, Independent Corrupt Practices Commission, etc. It is also left to be seen if President Buhari would assent to this bill if passed.”
Oyeniji added that the international community from whom Nigeria continues to receive aids, funding and return of looted assets would also not stand arms akimbo over this move. “Therefore, even though this is a public dance of shame by lawmakers, it is time for the third sector and well meaning citizens to resist this proposal, which is akin to being dead on arrival,” he suggested.
Also unhappy with the development is a non-governmental organization, Socio-Economic Rights and Accountability Project (SERAP). It has consistently condemned bill, saying that such immunity is intended to protect principal officers of the legislature from prosecution from corruption. Responding to the development, SERAP deputy director Kolawole Oluwadare said: “Providing immunity for presiding officers against crimes of corruption is tantamount to ripping up the constitution. It’s a blatant assault on the rule of law and breach of public trust. The leadership of the House of Representatives must immediately withdraw this obnoxious bill. We will vigorously challenge this impunity.”
SERAP believes that the attempt is a huge setback for the rule of law. It said: “Same privileged and powerful leaders of parliament that regularly make laws that consign ordinary, powerless Nigerians to prison for even trivial offences yet again want to establish elite immunity to protect themselves from any consequences for serious crimes of corruption and money laundering. Whereas countries like Guatemala has voted unanimously to strip their president of immunity from prosecution for corruption our own lawmakers are moving in the opposite direction.
“The message seems to be that in Nigeria, powerful and influential actors must not be and are not subject to the rule of law. It’s simply not proper for lawmakers to be the chief advocates of immunity for corruption. It’s a form of political corruption for the parliamentarians to abuse their legislative powers, intended for use in the public interest but instead for personal advantage. This is an unacceptable proposition as it gives the impression that both the principal officers of the National Assembly are above the law.” 
The group warned that if the House of Representatives should have their way, it would rob Nigerians of their rights to accountable government, adding that public officials who are genuinely committed to the well-being of the state and its people, and to the estab­lishment of an effective and functioning system of administration of jus­tice, should have absolutely nothing to fear.
Professor of intellectual property law, Adebambo Adewopo (SAN), has a slightly different view. He believes that if there should be such immunity, it should not cover principal officers from criminal prosecution and other infringements that happened outside their lines of duty. He said in the art of constitution making, citizens are sometimes confronted with properly conceptualising or adapting important and well-known constitutional doctrines such as immunity. The idea of immunity as a constitutional matter, he pointed out was never meant to provide immunity for any constitutional office or office holder as the case may be from criminal conduct or prosecution arising therefrom.

According to him, constitutional law experts are of the view that the idea of constitutional immunity from prosecution, whether executive or legislative, should not cover any act outside the realm of legitimate or lawful activities or only to the extent of the purposes of their prescribed constitutional role.    

Adewopo said: “In the case of legislative office or law making, the basic principle underpinning constitutional immunity for the principal legislative officers of the NASS should not be an absolute one, that is, for all intent and purposes. This, for example, should not extend to immunity from prosecution for commission of crime or actions outside the scope of office or such acts committed when the NASS are not in session or in circumstances having no bearing with the performance of legislative duties required of those offices under the constitution.     
“Nonetheless, the basic legislative privileges provide immunity for acts or statements made by legislators in the performance of legislative duties and to protect them from harassment arising from their legislative activities. This is the intendment of the aspect of the current constitutional amendment exercise by the NASS in addition to the existing immunity provision for the executive. In doing so, the standard should not be to procure immunity beyond the necessity to protect the principal legislative officers from acts done, or statements or decisions made in the course of the performance of their constitutional duty.”
He warned that to provide otherwise would amount to turning what was originally meant to be an immunity into a blanket licence to do anything including committing a crime and that would be inconsistent with constitutional order. The jurisprudence of protecting the sanctity of the legislative offices, he said requires the maintaining of a careful balance between acts of liability and immunity, which may either expose or protect those who hold the offices from unwarranted prosecution. “In my view, that is the overarching context upon which legislative immunity should operate under the political and constitutional system such as ours,” he told The Guardian.
Prolific writer and Kano based lawyer, Mr. Abubakar Sani thinks differently. He believes that it is fair for the principal officers of all the arms of government to get protection against civil and criminal protection. He said: “It is consistent with the principle of fairness and equity, as expressed in the aphorism that what is good for the goose is sauce for the gander. This is because the status quo in terms of the immunity which is presently enjoyed by only the president, his vice, governors, their deputies violates the right to equal protection of the law under Article 3(2) of the African Charter on Human & People’s Rights, which forbids discrimination between persons whom the law regards as being similarly circumstanced.
“In other words, to the extent the offices, which presently enjoy immunity are the heads of a co-equal arm of government (the executive), there is no valid reason why that protection should be denied to the heads of the other arms of government, namely, the legislature and the judiciary. See ANPP vs. IGP (2007).”
Although the lawmakers seem determined to see the bill through, they have also expressed their interest in presenting the bill before Nigerians through public hearing, with the intention of abiding with the preponderant of public view. Whether that would happen or not, remains to be seen.

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