On March 7, a bill seeking to give immunity to members of the National Assembly passed second reading at the House of Representatives.
It is described as “A Bill for an Act to alter the 1999 Constitution…by providing immunity for members of the legislature in respect of words spoken or written at the plenary session or at committee proceedings.”
The bill is designed to guarantee that freedom of speech, debates and proceedings in the legislative houses are not questioned in any court or place outside the parliament.
A member of the House, Hon. Ali Ahmed reportedly said the intent of the proposed amendment is to alter the provisions of Section 4(8) of the 1999 Constitution (as amended).
The section stipulates that the jurisdiction of the court cannot be ousted by the actions or proceedings of the parliament. He said the essence of the amendment was to ensure that lawmakers were not held liable or subjected to civil or criminal actions based on their utterance or decisions taken. Another member, Raphael Igbokwe, argued that granting immunity to lawmakers would strengthen democracy and allow members to speak freely without fear of molestation or litigation.
“If the immunity is granted, it will not be alien to Nigeria as even established democracies such as US and other African countries have entrenched it in their constitutions.”
Igbokwe said countries in which lawmakers enjoy immunity include Brazil, Indonesia, Malaysia, Ghana, Tanzania, among others.
According to him, legislators deserve protection, as is the practice universally, to exercise their legislative powers without fear or favour.
He was of the view that with the immunity, the lawmakers would take on issues frontally.
Another member, Zakari Mohammed, explained that the immunity the legislature was proposing was different from the one being enjoyed by the president and governors.
He said it was only for what transpired in the House, so that no member would be held responsible for his actions or words on the floor of the chambers.
He said when passed into law, the bill would enhance free-flow of debate in the parliament.
The proposed immunity bill, it is said, is to be included in the on-going amendment of the 1999 Constitution.
Expectedly, many Nigerians have been expressing mixed reactions at the proposal.
The fear is that given the nature of Nigeria, it such immunity could be exploited for selfish ends sooner or later if it becomes law.
The Senate, which the Bill also seeks to benefit, is reported to have rejected it, describing it as unneccessary.
One argument of the bill’s proponents is that the Legislative Houses Powers and Privileges Act of 1953 became irrelevant in 2007 following the decision of the Court of Appeal in Obi v. Balonwu in which the Court of Appeal declared the Immunity law null and void.
The intent, the backers said, is to allow lawmakers to work independently and unimpeded by the threat of intervention from the other branches of government in the discharge of their legislative duties.
However, the bill does not protect them from criminal prosecution, nor absolve them from responsibility for actions outside the floor.
Under the Presidential system of government and even now, it is the responsibility of the legislature to make laws for the country and the courts have the power to affirm the propriety of such laws.
This is why in arriving at its decision in the Obi v. Balonwu suit, the court had relied on section 4(8) of the Constitution, which prohibited promulgation of any law that ousts the jurisdiction of the court and declared that the law on legislative immunity unconstitutional.
The practice of legislative immunity is universal and is granted all legislatures across the world, whether in a Presidential or Parliamentary setting.
However, while executive immunity is determined based on a number of factors, particularly, the nature of political system operative in the given country, the legislative and judicial immunity is universal.
On a daily basis, Nigerians experience abuse of power by those in positions of authority.
Judging by the behaviour of some legislators, with allegations of bribery and corruption rife, the fear is that if such immunity is conferred on them, it would be used to intimidate the citizenry and their political opponents.
Proponents of immunity bill have argued that even in America, the mother of democracy, there are laws that oust the court’s jurisdiction and they were held to be constitutional because they are not general but narrowly targeting exceptional situations.
They said that the US and other countries that have written constitutions inserted this immunity in their constitutions.
According to them, legislators in Nigeria are exposed, are not covered and are all subjected to the prying eyes and actions of the courts.
This, they said, is contrary to the principle of separation of powers and the freedom of legislative speech and debate.
Thus, only by inserting this immunity in the constitution they restore to Nigeria the global practice of protecting the legislature across the country.
The Senate, it appeared does not share the views of the lower house on the issue of immunity.
Also, legal experts experienced in constitutional matters, have dismissed such bill as an ill wind for the nation’s nascent democracy.
The Senate, in its reaction said that any bill seeking constitutional immunity for members of the National Assembly is unacceptable.
Senate spokesman Enyinnaya Abaribe no legislator is supposed to seek any other immunity outside the parliament when the Legislative Powers and Privileges Act has already given legislators immunity for whatever they say on the floor of the chamber.
”That is already a settled fact. I’ll be very surprised if somebody is asking for immunity inside the chambers of the National Assembly.
“Why will anybody ask for such? I don’t think that will pass any floor of the National Assembly because whatever you say right inside there is already covered by the Legislative Powers and Privileges Act,” he said.
Lawyers were divided on the propriety of such a bill.
Chief Emeka Ngige (SAN) said praised the Senate for rejecting the bill outright, saying the House members behind the it must have something to hide.
He said: “Once the Senate has rejected it that’s the end of the bill. My view is that the senate was right in rejecting it.
”It shows that the senators are more matured than the honourable members in House of Reps.
”It is very disgusting for a legislator who claims to be a representative of the people to crave immunity for their actions in and out of the hallowed chambers.
”Today, because of the pervasive effect of corruption, there is a clamour for governors and the President to lose their immunity.
”Our country is gradually turning into a failed state status in view of the choking effect of corruption.
“The House of Reps members craving for immunity are criminals and should be investigated by anti-graft agencies.
”They have skeletons in their cupboards as depicted in the Otedola scandal and the power sector contract scam.
”Any way, with the Alemaiseigha pardon, one can now see why they desperately want immunity to loot the country dry.
”I give thumbs up to the senators for their sense of patriotism and maturity in rejecting the obnoxious bill.”
Activist-lawyer Femi Falana (SAN) described the bill as either a product of ignorance or mischief.
He said: “It may be a surreptitious move to confer absolute immunity on legislators as exclusively enjoyed by the President and state governors.
“Otherwise the bill is totally unnecessary as the Legislative Powers and Privileges Act has provided immunity for federal legislators in respect of statements or comments made by them on the floor of either chamber of the National Assembly.”
Falana reasoned that there is more to “the dangerous bill” and that Nigerians should not allow it to be smuggled into “Decree 24 of 1999, otherwise called the 1999 Constitution” which he said is once again being “panel-beaten by those who are scared of a popular Constitution.” Another lawyer, Dr. Timothy Oreoluwa described the bill as “taking legislative privileges to the ridiculous.”
“It shows one thing: that the nation’s lawmakers are actuated mostly by ulterior motives. They are only interested in how to twist the system for their selfish gain.
“It beats my imagination that a group of people, elected by their people to make laws for the good governance of the country are now enmeshed in a plot to undermine the system they ought to protect. This is funny.
“It can only happen in a country where people without conscience and integrity man political institutions.
“It is my belief that the right thinking among us will not allow this to happen. Additional immunity provision in the Constitution for the lawmakers is absurd and should be rejected.”
Rights activist, Allens Agbaka said: “The attempt by the federal legislature to alter or amend the Constitution with a view to inserting an immunity clause, to say the least, is a disgrace. It is a disgrace because many of the lawmakers have cases to answer already.
“Are they also plotting to ensure that the immunity runs in retrospect, so that some of them currently facing charges, and when the bill scales through, that means the end of those cases.
“Although some of these cases are gradually being swept under the carpet through subtle judicial maneuvering, this new effort is now legislative maneuvering. It will amount to a slap on the citizens of this country should they be allowed to succeed on this fraudulent project.
“Even some of us are arguing that the immunity clause, which exists to the benefit of some members of the Executive arm, is unnecessary.
“We can allow immunity for the President and the Vice President, but for the Governors? Immunity clause is not necessary. I am one of those where are advancing the argument that the clause is of no significance in our Constitution.
“Already, there is a form of immunity provision for the lawmakers, which arises from the fact that anything done by this lawmakers during their legislative functions within the National Assembly, cannot be challenged in court. It is limited to their deliberation on the floor of the Assembly.
“The immunity they now seek is that which will extend the existing immunity they already enjoy. They are trying to bring in, through the window, what they could not get through the door. Such move should be opposed by all right thinking Nigerians,”, Agbaka said.
But Lagos lawyer Emeka Nwadioke said there was nothing wrong with the bill.
“I find the alteration entirely harmless, moreso as parliamentary privilege is already secured by the extant Act,” he said.
“Similar provisions abound in several countries. In the United States, for instance, the ‘Speech or Debate’ clause of the US Constitution (Article I, Section 60) provides: ‘The Senators and Representatives … shall in all cases, except treason, felony and breach of the peace, be privileged from arrest … for any speech or debate in either House, they shall not be questioned in any other place.’
“It does not seem that the legislators are by any stretch of the imagination attempting to expand the ambit of their parliamentary privilege.
“This will be vigorously opposed as entirely inconsistent with the hallowed traditions of the parliamentary process.
“It seems to me that the fear of the legislators is that the Legislative Houses (Powers and Privileges) Act Cap L12, LFN 2004 does not enjoy constitutional flavor, thus the tendency for it to be struck down by the courts under Section 4(8) of the Constitution. Effectively then, the legislators do not enjoy parliamentary privilege. This is clearly a misnomer.
“Indeed, there is judicial authority for such fears. In Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488 at 546 – 547 Paras. G – D (CA), the Court of Appeal (per Kekere-Ekun, JCA) held that sections 3, 23, and 30 of the Legislative Houses (Powers and Privileges) Act, 1958 granting immunity to legislators ‘are clearly inconsistent with sections 4(8) and 6(2), (3), (6)(a) and (b) of the 1999 Constitution’ which vest judicial powers in the courts.
“I do not see how our courts will interpret such an amendment as providing a safe haven for thieving legislators when the extant Act clearly enacts otherwise.
“It is also instructive that parliaments are empowered to punish members who abuse privileges or behave dishonourably, and may incur public odium for shirking this responsibility.
“While there are a plethora of issues on which our legislators may deservedly be chided, I am inclined to accord them some good faith in the instant case.
“Perhaps to assuage any worries and guard against mischievous and frivolous applications, an additional proviso may be added to expressly exclude criminal conduct and malfeasance, thereby equally according constitutional flavor on the exceptions to parliamentary privilege, especially Sections 20 and 21 of the extant Act.
“This is to obviate the likelihood of a thieving legislator contending that the proposed alteration – which clearly runs on a very narrow compass – overrides the extant provision on bribes, benefits and rewards.
“By so doing, the necessary comfort will be accorded serious-minded legislators to ventilate their opinions towards making better laws while their wayward confederates will be checkmated.”
