By Bola A. Akinterinwa
Immunity is an interesting topic in international law and relations, simply because, as a concept, it officially legitimises or legalises an act of illegality, and thus, it is a concept that is in conflict with itself. Etymologically, the coinage of immunity can be dated to the time of the plague of Athens in 430 BC when, conceptually, immunity was derived from medicine. By that time, studies were carried out to investigate immunity to diseases. This is the focus of immunology, which differentiates between and among three main types of immunity: innate, adaptive, and passive or acquired immunity, active immunity, and passive immunity.
Active immunity is of two types: natural, in which case antibodies or lymphocytes are produced as a result of infection; and artificial, in which case antibodies are produced as a result of vaccine-induced immunisation. In the same vein, passive immunity also has two categories: natural passive immunity in which antibodies are passed to a foetus through the placenta or in the colostrum; and artificial passive immunity, in which ‘antibodies that have been produced by infected host or produced in vitro are given to a healthy host.’
As explained by Tim Newman in the Medical News Today of January 11, 2018, ‘our immune system is essentially for our survival. Without an immune system, our bodies would be open to attack from bacteria, viruses, parasites, and more. It is our immune system that keeps us healthy as we drift through a sea of pathogens.’
This column is not particularly interested in the medical origin of the concept of immunity. However, one point about it is noteworthy: immunity is essentially about survival, it is about the need to neutralise threats to survival. Consequently, from the perspective of biology or medicine, immunity is a means of survival and this quest for survival remains also valid in the conception of immunity in international law and relations, which considers immunity essentially as a means of protection. In fact, it is synonymous with protection.
In international law and international relations, immunity is again of two types: legal immunity, which is immunity from prosecution, and utility-defined immunity. In both cases, immunity is defined by three factors. First, there must have been violation of law, without which there would not have been a basis for the application of immunity; the act of violation must have been prompted by the need to protect a societal interest, which, in terms of priority of choice, must be more important than the value of having to impose liability for the wrong doing; and the violator of the wrong doing must still be in the public service.
As such, immunity clause is an official means of protecting crimes, ensuring national security or covering up certain information on behalf of Government. Immunity does not apply to ordinary people. It also does not apply to their private engagements. It is essentially applicable to acts engaged in on behalf of government, allegedly to protect larger societal interests.
As a result of the acting on behalf of Government, it is believed that Government also owes it a responsibility to protect its agents. It is on this basis that the notion of protection, especially, diplomatic protection, becomes relevant. Diplomatic protection covers non-prosecution, hence immunity from prosecution.
Let us espy, at this juncture, the manifestations of immunity in international law and relations before addressing the saga at the Nigerian House of Representatives which wants the application of the immunity clause to the presiding officers of the House. In other words, on what basis should the application of the immunity clause to the presiding officers of the House of Representatives be predicated? Immunity normally applies to accredited Foreign Service Officers, international functionaries, and senior public servants on official missions, including Honourable Members of the House and Distinguished Members of the Senate. This is in spite of the existence of parliamentary immunity.
Immunity in International Relations
Immunity at the level of international law is basically about sovereignty that is largely defined by the doctrines of equality and independence of States. In other words, it is presumed that all States are legally equal, politically independent and can enter into international relations on its own volition as a sovereign. Consequently, no state has the right to prosecute another sovereign state, especially without its consent. It is for this reason that international relations is characterised by the frequent applications of the principle of reciprocity, in its sense of retorsion and reprisal.
In this regard, there is a differentiation between functional immunity, that is, the application of the rule of ratione materiae, on the one hand, and the application of the rule of personal immunity, which is the rule of ratione personae. This differentiation can be understood in the context of ECOWAS plurilateral agreement on privileges and immunities. For instance, as provided in the ECOWAS General Convention on Privileges and Immunities, done in Lagos on the 22nd of April 1978, the grant of privilege and immunity is on the basis of two main factors: that the ECOWAS has ‘in the territory of each Member State, the legal capacity required for the performance of its functions,’ and that the property, secretariat and functionaries of the ECOWAS must be allowed to enjoy the same privileges and immunities accorded to accredited diplomats (vide the preamble).
It is on this basis that Articles 4 and 6 of the ECOWAS Convention on Privileges and Communities provide that the Community, its income, assets and properties, shall be exempt from all direct taxes, all imports and export duties, prohibitions and restrictions on imports and exports, customs duties, prohibitions and restrictions of import and exports in respect of its publications and exemption from excise duties and taxes payable on the purchase of moveable and immoveable property. All these are manifestations of economic privileges.
Although there are some exemptions attached to the privileges and immunities, such as non-exemption ‘from taxes or duties which are no more than charges for public utility services,’ or that ‘articles imported under such exemptions shall not be sold or otherwise disposed of in the country into which they were imported,’ there is no disputing the fact that the grant of privilege or immunity is largely based on performance of official duties on behalf of a sending State in order to qualify for the privilege or immunity.
And perhaps more interestingly, on the functionaries of Member States, Article 6 of the Convention on Privileges and Immunities is very clear on the scope of application of the rule of privilege and immunity: immunity from personal arrest or detention and official interrogation, as well as from inspection or seizure of their personal baggage (paragraph a); immunity from legal process of every kind in respect of words spoken, written or acts done by them in the exercise of their functions, paragraph (b); inviolability for all their papers and documents, paragraph (c); exemption in respect of themselves and their spouses from immigration restrictions, aliens’ registration, etc.
There is also immunity from national obligations in the State they are visiting or through which they are passing in the exercise of their functions. In fact, paragraph (f) provides for the same immunities and facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments or temporary official missions. And most importantly, paragraph (g) provides for ‘such other privileges, immunities and facilities not inconsistent with the foregoing, as diplomatic envoys enjoy except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of their personal baggage), or from excise duties on sales taxes.’
What is particularly noteworthy about all the aforesaid privileges and immunities is that they all apply in the context of performance of official duties. They do not apply to the exercise of personal or private activities. A second point of interest is that the foregoing provisions are largely inspired by the provisions on the same issue of immunities in the 1961 Vienna Convention on Diplomatic Relations, which essentially cover accredited diplomats and international functionaries. In this regard, how do we explain immunity in the context of Nigeria, and especially in terms of parliamentary immunity? What is the current position of Nigeria’s Constitution and what is now wanted by the House of Representatives? More importantly, is there any real need for special protection for the presiding officers of the House, since immunity is also essentially about protection against prosecution for illegal acts?
Nigeria’s Parliamentary Immunity Saga
Without doubt, parliamentarians generally enjoy one form of immunity or the other. All members of the ECOWAS Parliament, established under Articles 6 and 13 of the 1993 ECOWAS Revised Treaty, for instance, do enjoy Parliamentary immunity in all the Member States, that is, they cannot be prosecuted, summoned, arrested, detained or sentenced, except in case of flagrante delicto, regardless of whether or not the Parliament is in session or on recess.
More importantly, it is made clear by the ECOWAS Parliament that ‘before any Member of Parliament is apprehended in a case of flagrante delicto, duly established suits or confirmed sentence, clearance must be sought from the Bureau of the Parliament. The Parliament can, through a two-third majority, request from the competent authority, the suspension of a detention order on a suit against a Member of Parliament.’
One point of observation about this Parliamentary immunity is that it is multilateral in nature, and therefore quite different from Parliamentary immunity at the national or domestic level. Parliamentary or legislative immunity allows parliamentarians to have partial immunity from prosecution. In the Westminster systems, legislators are only protected from civil action for slander and libel by parliamentary immunity.
‘Parliamentary immunity from criminal prosecution is not enjoyed by Members of Parliament under the Westminster system. This lack of criminal immunity is derived from the key tenet of the British Constitution that all are equal before the law.’
If we do admit here that ‘all are equal before the law,’ why grant immunity to some people? By granting the privilege of immunity to some categories of people, does that not show inequality of status of the people? If the factor of equality of people before the law is the determinant, there should not be any good basis for the existence of immunity clause. The clause exists because of varying factors are used, rather than equality before the law: acting on behalf of Government, tenure in office, etc.
For instance, at the level of Nigeria’s 1999 Constitution as amended, Section 308 provides in paragraph 1(a) that ‘no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office.’ Paragraph 1(b) adds that ‘a person to whom this section applies shall not be arrested or imprisoned during that period, either in pursuant of the process of any court or otherwise.’
And more significantly, paragraph 3 says ‘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.’ Many observations that may explain the making of a bill on immunity for the presiding officers of the House of Representatives for possible enactment into law can be made at this juncture.
First, the immunity clause only applies to Mr. President, the Vice President, Mr. Governor and the Deputy Governor. Besides, the immunity clause is applicable at the level of the executive arm of government and to the exclusion of all other members of the cabinet. Second, it does not apply to the members of the legislature lato sensu. This is one major reason why House Representatives may be particularly interested in wanting to have immunity for protection of the presiding officers to begin with, and ultimately for all legislators in the long run. The issue here is whether speech making, debate exercise should warrant the provision of immunity clause.
Third, immunity is applicable to the president and governors, as well as to their deputies by virtue of occupation of offices, without which the immunity clause would not have been applicable. It is what a president or governor or the deputy does that defines the need for immunity. Fourth, and more important, the immunity is time bound: it is limited to the period of office, meaning that, whatever is done beyond the tenure in office, the immunity clause cannot be tenable.
With these considerations, many questions can still be asked as to why efforts are now determinedly made to amend Section 308 to enable the inclusion of immunity clause in the constitution for the presiding officers in the House of Representatives. Before attempting some possible answers, let us first of all espy the new bill.
The New Immunity Bill
The bill was sponsored by Honourable Olusegun Odebunmi, who is representing the Ogo Oluwa/Surulere Federal Constituency in Oyo State. The bill, even though it has gone through the second reading, is currently generating national controversy. Honourable Femi Gbajabiamila, the Speaker of the house, claims he is against the bill and that he does not want to chair the discussions on it if the bill, enacted into law, will have effect immediately. His support for the bill is on the condition that it will take effect from 2023. The point of the Speaker can be specially appreciated from the perspective that he does not want to be seen as having any personal agenda.
Another school of thought is saying that the issue should be thrown open to the larger public to determine or that there should be public hearings on it. Another school still argues in favour of outright removal of Section 308 for the Constitution. One important issue underlying the various standpoints is the unending corruption tendencies in the political governance of the country.
True enough, the country is ‘fantastically’ corrupt and this is one major reason for the call for the removal of the immunity clause from the Constitution. Another issue related to this is that Section 308, as it is, currently does not prohibit the arrest and prosecution of criminal offenders after leaving office. Section 308 places emphasis on period of office and performance. Why is it that suspects are not always tried after leaving office and are only and simply allowed to change political parties as if they are changing dresses? Is the administration of President Muhammadu Buhari (PMB)not consciously or unconsciously aiding and abetting corruption by keeping silent over the quest by his political party to extend the scope of the immunity clause in the Constitution?
If a more cautious care is not taken, PMB might ruin the totality of his eight years in office with the manner the issues of corruption and insecurity are being officially handled. In the eyes of the general public, the review of Section 308, rather than outright cancellation of it, or allowing the status quo to continue to remain as it is, is nothing more than attempt to cover up the shady activities of politicians in the public service. PMB cannot be singing, on the one hand, anti-corruption songs, while also beating the drums of corruption and dance-steps on the other. This is an apparent conflict of interest that should be speedily looked into by Government. Is it politically expedient for PMB to do so?
Whatever is the case, while the debate is still on, one possible and apparent rationale for the strong determination to want to have included an amended immunity clause to protect the presiding law makers is not far-fetched: several politicians, governors, etc, who are on record to have financially bastardised their states, are not only now members of the ruling party, APC, but have also sought refuge in the National Assembly either as an Honourable Member of the House of Representatives or as a Distinguished Senator. This raises questions about who should be considered as an honourable and a distinguished person in the true sense of the words. And true enough, the quest for immunity for the presiding officers of the House of Representatives cannot but be an attempt to provide a cover up for the obnoxious financial crimes committed by politicians, in both the House of Representatives in the immediate, and in the Senate, in the long run. If it is not so, what really can be the justification for a public speech or debate that essentially characterises the activities of legislators in law-making to qualify for immunity from prosecution, if it is not to protect criminal suspects who joined the APC for refuge? Perhaps we should also: what is the long term, functional purpose of the bill in the making?