The Senate and House of Representatives have taken different positions on the vexed issue of immunity for National Assembly members. Victor Oluwasegun and Dele Anofi examine the arguments for and against the Immunity Bill.
The Immunity Bill is now a bone of contention between the Senate and House of Representatives. The bill has passed through the second reading in the Lower House. But the Senate has questioned its desirability, stressing that legislators can discharge their responsibilities without the constitutional immunity.
The first bill is titled: “ A Bill for an Act to amend the Legislative Houses (Powers and Privileges) 2004 to extend Legislative Powers and Privileges to members of the Local Governments Legislative Assemblies.
The second bill is titiled ‘A Bill for an Act to repeal the Legislative Houses (Powers and Privileges Act 2004, and enact the Legislative Powers and Privileges Act 2012 to give the Legislature the desired Powers and Immunity to be able to carry out its Legislative Responsibility”.
The bills, which were sponsored by the Chairman of the House Committee on Justice, Ali Ahmed, and Ralph Igbokwe were consolidated before the commencement of the debate, passed and subsequently referred to the ad hoc committee on the review of the constitution.
But it appears that the lawmakers have stirred the hornets nest with the passage of the bill. There is an outcry over the intent and motive behind the move by the parliament to shield itself by seeking to amend the constitution for the purpose of restoring legislative immunity, which it lost in 2007 on the account of the ruling of the Appeal Court.
The legislators have explained that they are encumbered by several distractions and obstacles in the process of discharging their duties. However, critics have pointed out that the move was self-seeking. Others agreed with the legislators, saying that immunity would enable them to dicharge their responsibilities without hinderance.
A legislator, Hon. Bimbo Daramola, said the proposed amendment has been misconstrued by many people who rely on media commentaries to form an opinion. “Nobody is asking for immunity. What the bill is asking for is that members should not be distracted from doing their work. I’m surprised that the media is taking the slant of immunity. We are not asking for immunity; we are just asking that lawmakers should have the liberty to do their jobs as parliamentarians on the floor of the House.
“We are not saying that the legislators should not be prosecuted. But we are saying that members should be shielded based on anything they say in the cause of their legislative duties or in committee”, Daramola said.
Another legislator, Ali Ahmad, who defended the passage of the bill on the floor of the House, said: “The court objected to the legislative immunity in Nigeria in 2007. As we know, this immunity is granted to all legislatures across the world, whether under parliamentary or presidential system, and whether unicameral or bicameral. Unlike executive immunity, legislative immunity and judicial immunity are universal.
“The reason is that the legislator, in exercising his functions, should be granted optimum freedom of speech and debate, such that any words spoken or written in a report at the plenary session or committee proceedings, are not impeached or questioned in any court of law. Thus, a legislator cannot be sued for libel or slander on account of what he said at the plenary or committee. Similarly, legislative documents, especially ‘Votes and Proceedings’, cannot be questioned or contradicted. No evidence shall be allowed in court to show that what the “Votes” contain is not true”.
He added: “Thus, the judicial immunity legislation (i.e. Legislative Houses Powers and Privileges Act) is outside the jurisdiction the courts, with respect to words spoken on the floor of the House, or contained in a report laid. It also ousts jurisdiction of the court regarding questioning the veracity of the legislative documents; whatever is contained in a legislative document must be accepted as fact and true and court must accept it as such and cannot inquire to find out otherwise. It is like a black box that should not be opened”.
Ahmad said that, in the 2007 judgement on the Balonwu’s case, the court relied on the Section 4(8) of the Constitution , which prohibits the promulgation of any law that ousts court’s jurisdiction, and the court said that the law on legislative immunity is unconstitutional.
He said: “The case was the Balonwu’s case and the court allowed the evidence to contradict a notice of impeachment (a legislative document), whether it was properly arrived at or not. Of course, the court was right. The section gives powers to the courts, and the courts jealously guard that power. The court did not have to strike down the law to arrive at the decision.
“ But this is even more so in Nigeria, and Nigeria alone, where you have provision such as Section 4(8). Not many countries have such provision in their constitutions. In America, I have seen the laws that oust the court’s jurisdiction and they were held to be constitutional because they are not general, but narrowly targeting exceptional situations.
“But because the military had the penchant for ousting the court’s jurisdiction in its decrees, the framers inserted Section 4(8) so that no lawmaker or subsequent military dictator can oust jurisdiction of the courts, even in a decree.”
Ahmad said it was wrong for the framers of the 1999 Constitution to do away with legislative immunity. “Even, the United States and other countries that have written constitutions inserted this immunity in their constitutions. Legislators in Nigeria are exposed; we are not covered and we are all subjectd to the prying eyes and pricking actions of the courts. This is contrary to the principle of the separation of powers and the freedom of legislative speech and debate. Thus, it is only by inserting this immunity in the constitution that we can return Nigeria the global practice of protecting the legislature”, he added.
However, critics of the parliamentary immunuty have argued that it may be a license to the abuse of the privilege. it would appear that many are against immunity in any guise. They pointed out that the legislators may become reckless.
Others have also argued that the move may encourage corruption and lack of accountability. Also, they feel that the beneficiaries of immunity, who had engaged in criminal acts and abuse of power, especially the embezzlement of public funds, may escape prosecution.
According to the Nigerian Bar Association (NBA), immunity for the executive and legislature is unnecessary. Former NBA President, Joseph Daudu (SAN), had argued that “the immunity clause is an acknowledgement that some people are above the law. This is undesirable and unjustifiable in our present level of democracy.”
The legal luminary submitted that immunity may violate one of the fundamental principles of the constitution, which is the rule of law. “One of the tenets of this doctrine is that no one should be allowed to be above the law as all persons are equal before it”, he maintained.
A legislator from Kano State, Mustapha Dawaki, disagreed with this view. He said the immunity has limitation, clarifying that it does not cover the private actions of the legislator.
“The bill has attracted a lot of misconception in the public, especially the scope of the bill. People are now trying to make it look like a protection bill, as if to shield legislators from corruption. But that is not the case. People need to understand that the bill is all about giving immunity to anything that is said within the confines of the National Assembly, so that the legislator is protected from prosecution on whatever he or she says while carrying out these legislative duties”, he explained.
Tracing the history of the immunity clause, he said: “ In 1397, in the British parliament, a bill was presented and passed unanimously in the House of Commons, which condemned the financial scandal involving King Richards 11 and for daring to criticise the royal family, the member that sponsored the bill was taken to court, charged and convicted for treason and sentenced to death. The member was not eventually put to death because members of the parliament put pressure on the monarchy and the member had to get a royal pardon before he was left off the hook.
“After that incident, the parliament now sat down and created a bill or rights for themselves and got the immunity that protects them from whatever is said in the parliament.”
Another member, Samson Okwu from Benue State said: “The issue is misunderstood by the people because the immunity we are talking about is just within the chambers and the committee meeting. With that, one will be able to contribute positively to national discourse. Unfortunately, people are looking at it from the same angle as that of the governors, like when a criminal offense is committed and he cannot be prosecuted.
“That is not what this bill is about. This is just to protect us within the chamber and during committee level to be able to say the truth without the fear of being picked up later. Those that are arguing against this bill have not been able to come up with a better reason”, he said.
Godfrey Gaiya, also a member of the House, said the bill is not designed to shield members from criminal prosecution; neither is it to shield legislators from investigation for any wrongdoing. He said that immunity will give members the powers to speak freely without fear or favour within the confines of the National Assembly.
“Some of this matters may be issues that are controversial, damaging in some people’s views or offensive to some others. But if we have the bill in place, it will allow the Representative to contribute positively to any issue that has to do with generality of Nigerians, and say it as it is. Besides, truth is often bitter as some people will not take kindly to bitter truth.
“As such they will want to frustrate revelation and stop further revelation or distract the member that is making such revelations by way of dragging him or her to court.
“So, we felt that if Nigeria must have full disclosure on matters of national importance, then the person speaking on such issue should be given maximum protection that will encourage him to speak all out.
“Unfortunately, maybe out of ignorance, people are assuming that the bill is to give us some protection against criminal procedings, but the fact is that we don’t own any vote, we don’t sign any contract, we don’t dispense any fund.”
Another legislator from Ogun State, Kehinde Odeneye, said that any member who commits an offense bothering on fraud or corruption will face the music, irrespective of the immunity.
