The divisions around propriety, timing and motivation, notwithstanding, a bill to grant immunity from prosecution for presiding officers of the federal and state legislatures has passed second reading in the House of Representatives. The Bill seeks to amend section 308 of the 1999 constitution (as amended), by extending the immunity granted to the top hats in the executive, to include helmsmen in the legislature.
Many constitutions in the developing world and in Western Europe, already grant immunity from prosecution while in office, not just to principal officers of the National Assemblies, but to all members of the House. From time to time, however, there are more than twinges of regret when such provisions of the Constitution are abused by politicians accused of criminal conduct. Consider, for example, that close to 60 per cent of the Brazilian legislature and over 33 per cent of Indian legislators, a few years ago, faced criminal charges. Indeed, the growing practice around the globe is to whittle down the scope of these immunities, as it happened in France, Italy, Germany, Spain and Denmark in the last decade, thereby reducing them to cover relatively minor offences.
In many countries of the Western world, immunity for legislators grew out of the concept of parliamentary immunity, by which it is meant that members of parliament could not be persecuted for opinions that they express within the hallowed chambers of the house. Subsequently, the doctrine was extended in several cases to include various forms of immunity for members of parliament, shielding them in effect from prosecution while in office. As mentioned previously, however, the abuse of the immunity provisions in the various constitutions, in continental Europe for example, occasioned a recession of those provisions, in some cases, to merely procedural matters of not being able to arrest or detain a lawmaker while he is arriving in parliament or leaving the premises. So, strangely too, at a time when several countries are going away from sweeping or limited immunity, our own lawmakers prefer to introduce them, admittedly, for the principal officers of the Federal Legislature, as well as state legislature.
The argument made in support of the bill relates mainly to the experience of legislators under the 8th National Assembly, where the then Senate President, Dr Bukola Saraki, was for a great deal of his tenure kept tip-toeing through legal contentions necessitating his appearance in court on several occasions. True, some commentators saw this as an affirmation of the principle that no one is above the law, but Saraki’s colleagues saw it as an affront to the Upper House and ensured that all the members of the Senate rose in solidarity by appearing with him anytime he had to appear in court. Needless to say that the case stood in the borderland between justice and anti-corruption on the one hand, and the political and indelicate use of anti-corruption instruments to sanction Saraki for the unorthodox methods he employed to get to power, on the other hand.
One of the issues brought up in the debate on the proposed bill was raised by the speaker of the house, Mr Femi Gbajabiamila, who argued that he would only preside on the debate, if he would not be a beneficiary of the bill so that he does not become a judge in his own cause. In other words, Gbajabiamila, in keeping with hallowed conventions of integrity in public office will prefer that the bill, if eventually signed, would become law in 2023, after the expiry of the tenure of the current legislative leaders. Should this view be popularly accepted, and not thrown out as a worthless caveat, it will strengthen the case being made by the proponents of the bill, so that it does not look like another example of opportunistic law-making in furtherance of private and self-centred interests.
Obviously, the immunity clause currently covering top members of the executive at federal and state government levels has been widely criticized for not taking adequate cognizance of the rapacious ways of the politicians who are most often likely to convert immunity to reckless impunity. Indeed, some commentators have called for the amendment or outright scrapping of that section of the constitution.
However, a more nuanced argument would also weigh the implications of subjecting the President or Vice President to criminal prosecution while in office, which would obviously constitute a big distraction. That apart, the symbolism of a President rendered lame-duck and captive to legal proceedings of criminality will also send the message that the state itself, often a wobbly one, even in the best of circumstances, is on trial and on tenterhooks.
Even the Americans, who are farthest on the side of equality before the law, are ambivalent as to whether a sitting President could directly be subjected to criminal proceedings. That is, perhaps, why only a few American Presidents have had to face impeachment trials in their history. Of course, on the other side of the divide, are those who argue that delaying prosecution till President, and now if the bill passes, Speakers and Senate Presidents leave office, could mean that justice would be denied by the fact of delay because those responsible might destroy vital evidence relating to their alleged crimes. That apart, what happens if some vital witnesses have passed on in the precious interval between the commission of a crime and the expiry of the tenure of officeholders? That is another way of saying that those who are granted immunity may never be brought to book because while in office, they are in a position to influence the outcome of criminal proceedings regarding the time when they would be out of office.
In Africa and the developing world, most executives and top legislators do not even allow matters to get to the point where they would be sent for trial, given that they control the instruments and apparatus of state power. With the distinction between the executive and the other arms of government increasingly blurred, even if no immunity clause existed, they are unlikely to allow themselves to be subjected to the rigour of criminal prosecution while in office. In this sense, the debate becomes somewhat academic because the use or abuse of power is such that law enforcement agencies are rendered powerless to move against sitting presidents or top lawmakers, unless there is a change of government. Specifically, however, the current debate in the House is an offshoot of the feeling by legislators that, rather than being co-equal with the executive, they occupy a second-class position in the structure of government, and, therefore, vulnerable to being targeted by an imperious executive. Notwithstanding that in the 9th Assembly, the ruling party dominates the National Assembly, in recent times, there have been disagreements over such matters as the sack of the service chiefs. Who knows whether these differences will widen or be reduced in scope?
It is suggested that in keeping with contemporary trends, the bill should not be allowed to pass so that the scales will not be tilted on the side of non-accountability of officeholders. This also suggests that before the Houses elect their principal officials, they should take a hard look at them, in order not to throw up those who would require the immunity clause to stay in office.