The move by the House of Representatives to provide immunity for national and state Houses of Assembly’ presiding officers has received knocks from the public, reports Udora Orizu
The House of Representatives has commenced moves towards ensuring that the presiding officers of the Senate, House of Representatives as well as those of the state Houses of Assembly enjoy immunity while in office like the President, Vice President, Governors and Deputy Governors.
It introduced a bill 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; and for Related Matters’.
The bill sponsored by Hon Olusegun Odebunmi, recently passed second reading but not without some reservations by some members of the Green Chamber as well as a cross section of the society.
The Bill seeks an amendment to Section 308 of the 1999 Constitution of the Federal Republic of Nigeria, to extend such immunity to presiding officers of the National Assembly. This includes Senate President, Deputy Senate President, Speaker and Deputy Speaker of the House of Representatives and Speaker and Deputy Speaker in the 36 state Houses of Assembly.
Section 308 of the 1999 Constitution as amended, has in crystal clear terms, outlawed legal proceedings against the President and Vice-President of Nigeria and the Governors and Deputy Governors, respectively, of the various States. For clarity of purpose, the said section provides as follows:
“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 issued.”
The section also provides 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 this period of office.
“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; and the reference in this section to “period of office” is reference to the period during which the person holding such office is required to perform the functions of the office.”
The provisions of section 308 of the constitution came up for interpretation in the case of Rotimi vs. MacGregor, the then Military Governor of Western State, 1st appellant herein, was sued personally over a parcel of land. The Supreme Court held that by virtue of a similar provision in the 1963 Constitution, the action was incompetent.
The section also came up for interpretation in Fawehinmi vs. I.G.P, where the Court of Appeal held as follows: “The simple and ordinary meaning of section 308(1) is that the person(s) to which the provisions apply should not be made to face civil or criminal proceedings in court.”
The word “proceedings” after “civil or criminal” makes it clear and incontrovertible that what was intended was proceedings in court or tribunal and not police investigations. Section 308 does not shield or protect any of the persons named therein from police investigation.
But such investigation should be done as not to infract on the provisions of section 308. The word “otherwise” in section 308(1)(b) is to cater for and cover situations not specifically provided for under the paragraph but which may result in the arrest or imprisonment of the person concerned.”
In affirming this decision, the Supreme Court, held further that police investigation of the immune person cannot be equated with criminal proceedings, because criminal proceedings are commenced when an accused person is arraigned before a court, or at least, when an information or a charge has been filed against him in court.
It also held that police investigations could be carried out upon a criminal allegation against a Governor “so long as the police do not encounter him in the course of their investigation.”
Sponsor of the Bill, Hon Odebunmi, in leading the debate said the Bill was meant to protect the institution of the legislature from distraction caused by unnecessary legal actions against presiding officers.
The lawmaker explained that either genuine or not, such distractions have had serious negative impact on the quality of legislation, as well as discouraging presiding officers of the legislative institutions at National and State levels from taking the bull by the horn or taking certain critical decisions, when necessary for fear of unknown.
According to him, “Democracy has come to stay in Nigeria like the developed and other developing countries in the world. Hence the need to arrange our system to fit in the dynamics of democratic society becomes imperative for us.
“As the government of the people, by the people and for the people is very important to us as a nation, so also is the legislature’s importance to the system. Therefore, the need to further protect the legislative arm of government should not be ignored
“Therefore, for our democracy to continue flourishing, no action meant to strengthen the legislative institution could be out of proportion. 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 action 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 Democracy.”
Commenting on the bill, House Speaker, Hon Femi Gbajabiamila, posited that it would not be morally right for him to preside over the debate if he was going to be a beneficiary of the immunity.
He asked to be allowed to step aside but later advised that the sponsor of the bill should amend it and make the commencement date for implementation futuristic.
“The bill must be tweaked in such a way that the present presiding officers will not benefit from it, make it futuristic in terms of commencement date. The commencement date should be 2023 when the present leadership of the National Assembly tenure elapses.”
Supporting the bill, Hon Yakub Buba said, the membership of the national legislature was too large to leave their presiding officers without immunity.
His words: “Let’s look at this away, only two people are voted by Nigerians, and if you come to National Assembly, we have 360 members in the House and 109 in the Senate. So, the presiding officers need to be protected. The harassment from the Executive stops us from doing our job. Without this arm of government, there is no way we can fight corruption”.
Also speaking, Hon Abubakar Fulata stated that the essence of the bill is to guard against unnecessary distraction and undue intimidation of the presiding officers of the institution of the National Assembly, and not geared at shielding any individual so it should be supported.
Chief Whip, Hon Mohammed Monguno, argued that the bill would protect the offices of the presiding officers despite, who occupies them, “so, it is not based on sentiments, but on principles. So the Speaker should not feel guilty in presiding over the bill.”
According to him, the fact that only the legislature doesn’t enjoy the immunity is unfair.
Deputy Minority Leader, Hon Toby Okechukwu stated that the peculiar means by which African presidents wield enormous dictatorial powers against any perceived adversary should be guarded against, “so, the need to ensure the powers and privileges of the legislature is not only secure, but should be seen to be secure.”
But some of the lawmakers were not in support of the bill, saying it runs at variance with the spirit of democracy, which shows transparency, probity and accountability.
They reasoned that conferring such privilege on the presiding officers of the legislature when there was clamor to remove the immunity currently enjoyed by the President of the country, the deputy, State governor and their deputies was not in the best interest of the nation.
Hon Serguis Ogun said the bill was not needed at this time, adding that there was even a clamour to remove the immunity the President is enjoying.
On his part, Hon Solomon Bob said it was unnecessary granting immunity to the presiding officers of the legislature.
“In my mind, it is totally unnecessary. We do not need any immunity now. I am against the immunity enjoyed by the President and the Governors. The bill, if passed, would show that the lawmakers were “further indifferent” to the security challenges facing the country.”
Hon Onofiok Luke, advised the Speaker, saying once the bill is passed, he would be a beneficiary, which brings about a clash of interest.
“This is a constitutional amendment. If by reason of procedures, you can exonerate yourself. No matter how you look at it, there is an issue of conflict of interests. Let’s make this part of constitutional amendment.”
The Socio-Economic Rights and Accountability Project (SERAP) and some legal practitioners have also condemned the Bill. SERAP, in a statement signed by its Deputy Director, Kolawole Oluwadare, described the lawmakers’ action as ripping up the Constitution, a blatant assault on the rule of law and a breach of public trust.
The organisation called for the immediate withdrawal of the ‘obnoxious Bill’ by the House leadership, failure which it would seek legal redress.
“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. If the House of Representatives should have their way, this will rob Nigerians of their rights to accountable government.”
Lagos lawyer, Femi Falana (SAN) described the bill as illegal, saying it would not survive.
“The bill will soon be defeated on the floor of the House, because it is illegal and unconstitutional. Apart from the President, Vice President, Governors and Deputy Governors who are entitled to immunity under Section 308 of the Constitution, no other public official or citizen is entitled to be excluded from prosecution for corruption or other criminal offences.
“Only a constitutional amendment can confer immunity on any other group of Nigerians. I can assure you that the amendment will not be approved by Nigerians; it was tried in the past but it was popularly rejected.”
Another legal practitioner, Chief Mike Ahamba (SAN), also submitted that the lawmakers even lacked powers to amend the constitution.
“It is self-serving and I am not in support of it. Besides, the National Assembly lacks power to amend the Constitution and if the lawmakers make any attempt to do that, I will take up a legal action for the court to decide whether or not they can actually amend the Constitution.
“The Bill is for self-protection and the thing there is I am quite sure that it will scale through at the various Houses of Assembly. Here in Nigeria, we approve things based on the benefits to be derived and not whether they are right or wrong. I am not in support of the Bill.”
Rights activist and lawyer, Chief Mike Ozekhome (SAN) is of the view that the bill should be killed “with the heaviest of sledgehammers”.
According to him, “The bill is another way of asking for legislative immunity against legislative rascality and lawlessness. It is a bill asking for immunity against transparency and accountability.
“It is a bill asking to be shielded from criminality even when a crime is committed. It is a bill seeking to be regarded as a sacred cow, not accountable to anybody, including the Judiciary.
“If it were not for selfish purposes, if it were altruistic and nationalistic, or because they want to be at par with the Executive, why have they not also brought in the Chief Justice of Nigeria, who heads the third arm of government under Section 6 of the Constitution?”
Auwalu Yadudu, a professor of law, while also opposing the bill, said it would not pass going by the passion of the public against it. To him, the bill was “totally unjustifiable” and would end up as an exercise in futility.
He added that even the immunity provided for the executives by the constitution has been raising questions and as such he strongly believed that the amendment would not be successful, because there was no reason for it.
Another lawyer, Seyi Sowemimo said there was no basis for the Bill, because according to him, “Even, the subsisting executive immunity is being questioned by the people and now we want to add this one to it. It is quite unfortunate. This thing cannot work in a country bedeviled by lawlessness and infractions on the rule of law. I hope the president will desist from appending his signature to the Bill.
“The reason those in the executive are enjoying immunity is to avoid any distraction or being prosecuted while in office. What is the basis for this immunity that is now being mooted for the principal officers of the legislature.”
A former Vice President of the Nigeria Bar Association (NBA), Mr. Adekunle Ojo, described the action of the lawmakers as an extension of absurdity.
“The truth is that the Bill is self-serving and it is not good for a country like ours that is overburdened by corruption being perpetrated by those holding political offices. This is a sad development, because it’s like extending absurdity.
At the moment, many Nigerians believed it is absurd that governors could not be made accountable for any misdeed while in office,” saying Nigeria was not ripe for this kind of Bill and that it would amount to a misadventure.
The bill which had since been referred to the House committee on constitution review, which is yet to be constituted about one month after the Senate leadership inaugurated its constitutional committee headed by Deputy Senate President, Senator Ovie Omo-Agege, which had since held the inaugural meeting of its eight-man steering committee.
If the bill by chance scales through at the Green Chamber, which is not certain, because there would be mounting opposition from the public, when the bill goes for public hearing, it will still need to come to the Senate for concurrence before it can be sent to the President for his assent.