Recently, the Minority Leader of the House of Representatives, Honourable Leo Ogor, canvassed the inclusion of the Senate President, Deputy Senate President, the Speaker and his deputy in the immunity clause, through a Bill for an Act to alter the 1999 Constitution (as amended). The bill seeks to amend Section 308 of the Constitution, which currently gives immunity only to the president, vice-president, governors and their deputies. The bill proposes to extend the same gesture to speakers and deputy speakers of state Houses of Assembly. It has passed the second reading, though in a ‘controversial’ manner, in the House.
The controversy over the proposal to extend immunity to officers of parliament has become heated in public discourse in both the traditional and new media. Those who support the proposal argue that providing immunity for the leadership of the National Assembly would guarantee the independence of the legislature. Indeed, the Speaker of the House of Representatives, Yakubu Dogara, insisted that the proposal had become necessary to prevent the executive from emasculating the legislature. He maintained that those against the move had effectively conferred legitimacy on the ongoing trial of Senate President Bukola Saraki and his deputy, Ike Ekweremadu, for alleged forgery of the Senate rules. Some have also emphasised that the proposal is not to protect the two individuals under trial but to protect their offices and prevent them from being rubbished for political reasons. According to this school of thought, the lawmakers should have done this a long time ago to strengthen the principle of separation of powers.
In general, those who support immunity from criminal prosecution for public officials maintain that it prevents such officials from being distracted with frivolous litigations while performing their statutory roles. Many governors who were dragged to Election Petition Tribunals immediately after their election had cried out that they were being prevented from quickly settling down to work. Some who have had electoral cases pending against them for several years argued that these cases put them under pressure and prevented them from functioning optimally. Removing the immunity clause from the Constitution, they reasoned, would therefore expand the problem.
On the other hand, there has been a strong voice against the proposal, both within and outside the legislature. Senator Magnus Abe, for instance, has argued that the National Assembly already enjoys immunity that enables its members to do their job on the floor of the National Assembly. In other words, the legislature is asking for more than is required to guarantee or strengthen its independence.
Those opposed to immunity for public officials in general have argued that it breeds corruption. It will be recalled that, while in office, the late President Umaru Yar’Adua had called for the abolition of the immunity clause, maintaining that it bred corruption. According to him, “Nobody in Nigeria deserves the right to be protected by law when looting public funds.” A group, Champions for Nigeria (CFN), also forwarded a petition to the National Assembly on the need to amend Section 308 of the Constitution to remove the clause, reeling out countries that had jettisoned the idea of immunity for their elected leaders.
We believe that the scope and character of immunity provided for public officials must be based on a careful consideration of the nature of politics in the country. Given the behaviours that have been manifested in parliament since 1999, immunity for the principal officers of the legislature will only advance impunity. Indeed, in many ways, the immunity clause has amounted to a recipe for impunity. Thus, an expansion of its coverage is most likely to promote further abuse of power and deepen corruption. We think that the members of the National Assembly already enjoy sufficient immunity in discharging their responsibilities under the constitution. Where they face the threat of harassment, they should simply remain within the premises of the National Assembly as covered by the existing law.
The immunity clause has been used to cloak illegal, corrupt and criminal activities by some of those who are currently covered by it. This has been revealed by the several cases of corrupt practices decided by the courts. It is therefore not in the public interest in Nigeria where impunity is commonplace among public officials. Nigeria’s current immunity provision mirrors that of the United States and Britain which is narrower in scope, restricting protection to only the direct actions and statements of the legislator in his or her capacity as a representative. Where a legislator engages in illegal activity outside his or her legitimate role as a representative, he or she is subject to investigation, prosecution, trial and potential punishment like any other citizen. We think this should remain so in Nigeria as well.
