Ndubuisi Orji, Abuja
Members of the House of Representatives are currently divided on whether or not there should be immunity for heads of the legislature and judiciary at the national and state levels.
There are currently two bills before the House seeking to alter Section 308 of the 1999 Constitution (as amended) to grant immunity to presiding officers of legislative houses, heads of the judiciary, some other categories of judges and presiding officers of legislative houses in the country against civil and criminal proceeding.
The proposed legislations, which have already passed second reading in the Green Chamber, through voice vote, have been referred to the House Special Ad-hoc committee on the Constitution Review for further legislative works.
Section 308 of the 1999 Constitution (as amended) protects the President, vice president, governors and deputy governors from criminal and civil proceedings, while they are in office.
According to Section 308(1)(a) “ no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period in office” while Section 308(1)(b) stipulates that “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,”
If the bills scale through at the Constitution Review Committee, it will be returned to the two chambers of the National Assembly, where two/third of votes in both chambers will be required to pass the alteration, after which it will be sent to 36 states Houses of Assembly for concurrence.
If the bills eventually become law, it will shield the Senate President, Deputy Senate President, the Speaker of the House of Representatives, the Deputy Speaker, as well as speakers and deputy speakers of state Houses of Assembly from prosecution, while they are in office.
Similarly, the Chief Justice of Nigeria (CJN), President of the Court of Appeal, Supreme Court justices and chief judges of the various states judiciaries and the Federal Capital Territory (FCT) are expected to benefit from the proposed alteration of the Section 308 of the 1999 Constitution (as amended).
However, there is no consensus among members of parliament on the issue. While some argue that the alteration is imperative to give the heads of the legislature and judiciary same privilege and protection currently enjoyed by the executive arm of government, others think it is unnecessary.
Sponsor of the bill seeking immunity for heads of the judiciary, Iduma Igariwey, said that in a Third world country, like Nigeria, where there are no strong institutions, it is essential to protect heads of the judiciary from interferences from politicians, by giving them immunity from prosecution.
The lawmaker, who represents Afikpo North /Afikpo South Federal Constituency of Ebonyi State on the platform of the Peoples Democratic Party (PDP), argues that the proposed legislation will help to enhance the independence of the judiciary and strengthen the institution.
He added that since the three arms of government -legislature, executive and judiciary are equal and coordinates, same privileges should be accorded to the leadership of the three arms.
According to him, “Section 308 in the first place talks about the immunity enjoyed by the executive arm. Right now, it is the President, the Vice President, the governor and deputy governor that have immunity. And if we truly say that we have three arms of government, which are equal and coordinate, why should we protect the head of one and leave the other ones, open to the vagaries of criminal or civil proceedings while they are in office?
“We all know how important Supreme Court judges, judges generally, whether Court of Appeal judges, whether judges at the state levels are.
“The argument is that they should enjoy immunity from civil and criminal prosecution, while they are in office. Because it is the same way, it is couched for the executive while they are in the office. This is made in recognition of the fact that time does not run against a criminal act. If you commit a criminal act as a judge, whenever you retire, you face your trial.”
For Johnson Oghuma, an All Progressives Congress (APC) member from Edo State, granting immunity to judges will be in bad taste, owing to the enormous powers they already wield.
Oghuma noted that an immunity for judges will not be in the interest of the society, as it will make them super-human and too powerful, which according to him, will be to the detriment of the society.
He contended that “for judges who have power to take live and spare lives to be given immunity against both Civil and Criminal matters, it therefore means that we are surrounding our lives to somebody that is not infallible. Only God is infallible. And only God alone can use such a power without any fault.
“But for human beings that are already playing the role of God with the power given to them to take lives and to spare lives, to now have immunity against civil and criminal cases, it therefore means that all of us are in danger.
“The only thing that makes them to behave to know that they are representing God, wherever they are presiding is that immunity that they do not have. I think that we cannot grant immunity to people with power to take lives and to spare lives.”
Nevertheless, the deputy minority leader, Toby Okechukwu, believes that the judiciary, in spite of its enormous powers, is still vulnerable to political interferences, hence the need to protect the judges.
According to Okechukwu, immunity for heads of the judiciary is necessary so that they will be able to dispense justice without fear or favour and undue interferences from political actors.
He allayed fears that immunity for judges will be subject to abuse, noting that they can always be removed from office for misconduct.
The lawmaker explained that “even the president or governor’s immunity is not absolute. There are exceptions and they are subject in all circumstances to the will of parliament. They can be impeached. They can be removed even for purposes of misconduct.
“ So, if there is anything grievous that the presiding judge had done, we can have recourse to ways of removal, which can be exercised by parliament. That is the extent of checks and balances. I do not think it will be subject to abuse; because we can have a recourse to the possibility of parliament doing the needful.”
The lawmakers are also not in agreement on the propriety of altering the constitution to grant immunity to the presiding officers of the National and state assemblies.
The proposed legislation is entitled ‘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 sponsor, Segun Odebunmi, an APC member from Oyo State, during debate on the bill recently, said it is intended to protect presiding officers of the legislature, and by extension, the institution, from distractions caused by unnecessary legal suits against them.
Odebunmi noted there have been instances where the legislative houses have been distracted, due to the prosecution of presiding officers. He added that immunity for presiding officers is imperative in the interest of the country’s democracy.
According to him, “extending immunity to the Presiding officer 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 a democracy.”
However, a school of thought believes that it is not appropriate for the House to be talking about immunity for presiding officers of the National and state assemblies at a time, when they are already clamouring for the removal of the immunity, which the president, vice president, governors and deputy governors currently enjoy.
One of those who belong to this school of thought is the minority leader, Ndudi Elumelu. Elumelu, who represents Aniocha / Oshimili federal constituency of Delta State, during a debate on the issue recently, said the House has no business discussing immunity for presiding officers of legislative houses at a time insecurity is ravaging the country.
According to him, “why we are coming up with a bill as it relates to issue immunity, this is coming at a wrong time. I think it is wrong and should not be allowed. We should jettison it and withdraw it completely. It is wrong. I totally go against this. It is wrong and should not be allowed. At at time Nigerians are being killed, we are here debating whether the presiding officers need immunity”.
Sergius Ogun, who represents Esan North East /Esan South East federal constituency of Edo State, concurs.
Ogun, said immunity for presiding officers of the legislature was not necessary at this point in the history of the country, especially as there are already clamours for the immunity enjoyed by the President, Vice President, governors and their deputies to be removed.
“I do not think this is what we need today. I don’t know what we need immunity for. There is even a clamor to remove the immunity the president is enjoying”, Ogun said.
Nevertheless, Igariwey says there is need to create an enabling environment for the heads of judiciary and the legislature to do their job without distractions..
“ The same way a governor or a president is, so shall it be for justices of our courts.. And of course, we are making the same argument for the speaker of the House, the Deputy Speaker, the Senate President and the Deputy Senate President. This people shouldn’t be distracted. We all saw what( Senator Bukola) Saraki went through in the eight assembly, it was a lot of distraction and it affected the country one way or the other,”the lawmaker stated.
However, the speaker, Femi Gbajabiamila, who equally believes that it is important to extend the same privilege enjoyed by the heads of the executive arm of government to their counter, said the bill seeking immunity for presiding officers of legislative houses should be drafted in such a way that the current leaders of the parliament will not benefit from it.
“The bill must be 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”, Gbajabiamila stated.
Whether or not the House will be able to push through its quest for immunity for heads of the judiciary and the legislature in the country, will become clear during the next alteration of the 1999 Constitution, which is scheduled to commence soon.