Following the reported filing of charges of conspiracy and forgery against Senators Bukola Saraki and Ike Ekweremadu, the Senate President and his Deputy, the immediate past Clerk of the National Assembly, Alhaji Salisu Maikasuwa, and the Clerk of the Senate, Mr. Ben Efeturi, at the Abuja Federal Capital Territory High Court, for an alleged complicity in the forgery of the Senate Standing Orders [Rules], 2015, on the basis of which the leadership of the Senate was “elected”, on Tuesday, June 9, 2015, the leadership of the Eighth Senate has cried out to Nigerians that the Executive Branch of Government in the Federation, and the All progressive Congress Party leadership are using the Attorney-General of the Federation, whose office filed the Charges, to victimise it and effect a change in the leadership of the Senate.
The leadership of the Senate alleges a coup, a violation of the principle of separation of powers, ignorance of parliamentary principles and convention on the part of their alleged traducers, unacceptable criminalisation of legislative processes, an attempt to return Nigeria to an era of impunity and lack of respect for due process, a subversion of constitutionalism, an erosion of the independence of the legislature, interference in the internal affairs of the Senate, a blatant abuse of the judicial process, substitution of the rule of men for the rule of law, and an attempt to plunge Nigeria into a state of anarchy and constitutional crisis. In sum, the Senate leadership is saying that the charge of forgery filed against the quartet is nothing but an act of political persecution, calculated to sack the Senate leadership from office.
Shorn of the robust allegation of persecution, the kernel of the defence of the Senate leadership to this charge is that the change to the Senate Standing Orders [Rules] was an internal affair of the Senate and that same is not subject to executive intervention or judicial inquiry.
In a July 17, 2015 article published in Premium Times, and titled “Senators Saraki and Ekweremadu’s Elections are a Nullity”, we had argued that since the senate leadership election was predicated on an allegedly forged and a non-existent Senate Orders 2015, same was a nullity, and that a fresh election be conducted on the basis of the Senate Standing Orders, 2011.
In this intervention, we seek to treat, even if briefly, the doctrine of legislative immunity which the Senate leadership is invoking to fend off the criminal charges, and the issue: whether the alleged act of forgery of the Senate Standing Orders, 2011 [into a non-existent Senate Standing Orders 2015] is covered by the doctrine of legislative immunity, so as to make the charges illegal, ultra vires the Executive Branch of Government of the Federation, unconstitutional, null and void.
Legislative immunity, also known as parliamentary immunity, is a legal doctrine under which legislators or parliamentarians are accorded or granted partial immunity from prosecution or from being made answerable to a civil action. The doctrine evolved and was developed in England during the ascendancy of the legislature against the monarchy, which was subjecting parliamentarians to political persecution for their adversarial and antagonistic parliamentary work. The intervention of the English Bill of Rights of 1689 [in its Article 9] decisively changed the equation, however, by granting immunity to members of parliament against civil or criminal action with respect to the performance of their legislative duties. “The freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any Court or place out of Parliament,” it definitively declared. Indeed, in some jurisdictions [Nigeria excluded], before a legislator could be prosecuted, his legislative immunity is first removed either by a superior court of justice or by the legislature itself. The raison d’être of the doctrine is to insulate legislators from inordinate pressure and fear of prosecution whilst they are freely exercising their legislative conscience, including the casting of their votes on the floor of parliament.
The doctrine has received codification under Nigerian laws. The Legislative Houses [Powers & Privileges] Act, Cap L12, Vol. 8, LFN, 2004 is an “Act to declare and define certain powers, privileges and immunities of Legislative Houses, established under the Constitution of the Federal Republic of Nigeria, and of the Members of Such Legislative Houses: to regulate the conduct of members and other persons connected with the proceedings thereof, and for matters concerned therewith”. Section 3 of the Act provides for “immunity from proceedings”, stating that “no civil or criminal proceedings may be instituted against any member of a legislative house-(a) in respect of words spoken before the House or a committee thereof; or (b) in respect of words written in a report to that House, or to any Committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him therein”.
Section 30 of the Act also provides that “Neither the President or Speaker, as the case may be, of a legislative house nor any officer of a legislative house shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in him by or under this Act or the Standing Orders of a legislative house or by the Constitution”.
Plainly and literally interpreted, the provision of Section 3 of the Act “arguably” makes it impossible to initiate any civil action or criminal prosecution in respect of any words spoken on the floor of parliament or written in a petition, bill, resolution, motion, or question brought or introduced by a member of a legislative house. Such a member may not be sued for slander, libel or prosecuted for the archaic offence of criminal defamation, for example. Under the law of libel [defamation], words uttered and words written in legislative processes are covered by the defence of absolute privilege. The general rule of Absolute Privilege provides that proceedings in Parliament shall not be questioned. Thus, no action will lie against a member of the legislature for defamatory words spoken in the course of any legislative debate or proceedings. See Gatley on Libel and Slander, 1981 Ed, Section 6, Paras. 442-427, pgs. 179.182.
We shall argue, however, that there could be exceptions. Issuance, by a legislator, of a threat to life of another on the floor of parliament, immediately followed by an act of infliction of serious bodily harm or attempted culpable homicide could be prosecuted, regardless of the provision of Section 3. Also, plainly and literally interpreted, Section 30 of the Act ousts the jurisdiction of courts in respect of the exercise of any power conferred on or vested in the President or Speaker, as the case may be, of a legislative house or any officer of a legislative house by or under the Act or the Sanding Orders of a legislative house; or by the Constitution. Thus, the Speaker of the House or President of the Senate may not be sued for ruling or misruling on a motion, dividing the house into committees, or adjourning the house before the legislative closing time. Be it noted, however, that the immunity granted by Section 30 of the Act relates only and restrictively to exercise of powers conferred or vested “by or under the Act or the Standing Orders of a legislative house or by the Constitution”. The offences of conspiracy and forgery being alleged are not powers so vested or conferred, and, thus, enjoy no immunity cover.
It is our view that the doctrine of legislative immunity or absolute privilege offers no defence to a criminal act that is committed within or outside the legislature. A legislator who sexually assaulted or raped a fellow legislator or another person within the “hallowed chambers” of the National Assembly, as they are now conceitedly labeled by Nigerian legislators, or in the “sacred” innermost recesses of the National Assembly, cannot claim legislative immunity to escape criminal liability; nor could a premeditated murderer who smuggled a weapon into the Chambers to kill a fellow legislator, while the House is in session; nor could it avail a presiding officer who defrauded the House, and stole and converted the votes meant for the operation of the House.
This is why the Legislative Houses [Powers & Privileges] Act, Cap L12, Vol. 8, LFN, 2004 itself recognises that members of a legislative house [including a speaker of the house or president of the Senate] can be arrested for committing an offence and be brought to trial.
Section 20 of the Act, for example, prohibits “acceptance of bribes by members” by stating that “any member of a legislative house who accepts or agrees to accept or obtains or attempt to obtain for himself or for any other person any bribe, fee, compensation, reward or benefit of any kind for speaking, voting or acting as such member or for refraining from so spoken, voted or acted or having so refrained shall be guilty of an offence and liable on conviction to a fine of four hundred naira [#400.00] or to imprisonment for two years or to both such fines and imprisonment”. Also Section 25 of the Act penalises “printing false copies of laws or proceedings”, by stating that “any person who prints or causes to be printed a copy of any act or law now or hereafter in force or a copy of any report, paper, minutes or votes, or proceedings of a legislative house as purporting to have been printed by the Government Printer or by under the authority of a legislative house or by the President or Speaker, as the case may be, of a legislative house, and the same is not so printed, or tenders in evidence any such copy as purporting to be so printed having reasonable cause to know that it is not so printed, shall be guilty of an offence and shall be liable on conviction to a fine of two hundred naira or imprisonment for twelve months or to both such fine and imprisonment”. And Section 29 provides that “where a member of the National Assembly is: (a) arrested or detained in custody upon a warrant or order of a court; or (b) sentenced by a court to a term of imprisonment, the Court shall, as soon as practicable, inform the President of the Senate or the Speaker of the House of Representatives, as the case may be, accordingly”.
Bottom-line, a legislator in Nigeria, be he a speaker or senate president, can be arrested, detained prosecuted, convicted and sentenced by a court of law in Nigeria, for committing an offence. He has no legislative immunity to criminal prosecution, properly initiated. While being taken through the criminal prosecution process, he is not thereby robbed of his fundamental right to fair hearing, and by law and parliamentary practice, he may insist that he be allowed to continue to perform his legislative functions, [even from prison], including attending parliament and sitting therein, to represent his constituents (who legally may not be robbed of representation), unless and until he is recalled. Williams Jefferson, a US Congressman was convicted and jailed for engaging in acts of bribery and corruption. Farouk Lawan, a former prominent legislator in Nigeria’s House of Representative is still undergoing trial; and an ex-Nigerian Senate President, Adolphus Wabara was docked for corrupt practices.
There are other types of immunities under Nigerian and international laws: executive immunity, judicial immunity, diplomatic immunity and sovereign immunity. It may, perhaps, be useful to advise the Senate leadership to strive to understand the elements of each of these immunities so that it erroneously does not assume that the legal benefits of one are available under the others.
Executive immunity, which is specifically provided for under Section 308 of the Constitution of the Federal Republic of Nigeria, 1999, is an immunity granted to certain officers in the executive branch of government, which makes them not be personally liable for acts of torts done or tortious omissions that are made in the course of discharging their duties.
The said Section 308 provides as follows: “(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section -(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office; (b) 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; and(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued: Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office;
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party; and (3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.”
Judicial immunity is granted to judicial officers [and to those who are called upon to perform quasi judicial functions] to protect them against civil liabilities that may emanate from or relate to the exercise of their powers and performance of their duties, essentially to embolden them to dispense justice, independently, without the phobia of being challenged in a civil action, and “without fear or favour affection or ill will”. Judges, however, do not have judicial immunity from disciplinary sanctions, including dismissal for acts of judicial misconduct, or from penal sanctions which may be imposed on them for criminal acts that they may commit in the course of discharging their judicial functions. And if a judicial officer commits a criminal act outside the scope of his judicial duties, he has no protection of judicial immunity whatsoever. We refer to Sections 98, 98A, 98B, 98 C and 98 D of the Criminal Code Act, Cap C38, Vol. 4, LFN, 2004 that provides for offences of corruption and abuse of office involving public officers [ including judicial officers, who can be tried while on the Bench].
Lord Denning, MR put it best in the case of Sirros v Moore,CA,1974, [1975]QB 118; [1974] 3 All ER 776, where, with his usual perspicacity and admirable language, he discussed the doctrine of judicial immunity as follows:
“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or to take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. These words apply not only to the judges of the superior courts, but to judges of all ranks, high or low.’ However the doctrine of judicial immunity does not apply: ‘if it be shown that [a judge] was not acting judicially, knowing that he had no jurisdiction to do it.”
Diplomatic Immunity is a principle of International Law that provides foreign diplomats, their families and their ‘contingent’ with protection from legal action in the country to which they are posted as diplomatic envoys. The provisions that constitute this principle are contained in the Vienna Convention on Diplomatic Relations, 1961, and subsequent Conventions, and in municipal statute of each country, which guarantees diplomatic privileges and immunity in such a country. In Nigeria, the Diplomatic Immunities and Privileges Act, Cap D9, Vol. 5, LFN 2004, provides for diplomatic immunities and privileges for foreign envoys and consular officers. Section 1 states thus: “[1] subject to the provisions of this Act, every foreign envoy and every foreign consular officer, the members of the families of those persons, the members of their official or domestic staff, and the members of the families of their official staff, shall be accorded immunity from suit and legal process and inviolability of residence and official archives to the extent to which they were respectively so entitled under the law in force in Nigeria, immediately before the coming into operation of this Act; [2] any writ or process sued forth or prosecuted before or after the coming into operation of this Act, whereby any foreign envoy or foreign consular officer authorised and received as such by the Government of Nigeria or any member of the official or domestic staff of such foreign envoy or foreign consular officer is liable to arrest or imprisonment, or his or their goods or chattels are liable to distress seizure or attachment shall be void”. As expansive as the immunity enjoyed by diplomats are, they are still expected to obey the laws of their host countries, as the liberty of immunity is not a license to commit crimes.
Sovereign immunity is a judicial doctrine that prevents the government or its ministries, departments and agencies from being sued without its consent. The doctrine originated from the ancient English principle that the monarch could do no wrong. At common law, under the principle of Rex non potest peccare [the King can do no wrong], the State [or crown] enjoyed immunity from legal action and could not be impleaded in its own court for the tortious acts of its servants. Thus, if the State did wrong, it could not be sued, it was the agent or servant who committed that wrong on behalf of the State that could be liable personally. Although that principle was abolished in England by the Crown Proceedings Act, 1947, that was not so in Nigeria until the enactment and promulgation of the 1979 Constitution of Nigeria, which in Section 6(6) vested judicial powers of the State in the courts, thereby abolishing the doctrine of state immunity from tortious liability in Nigeria. See the decision of the Supreme Court of Nigeria in Ransome Kuti v A.G Fed [ 1985] 2NWLR [Pt. 6], 211, Eso, J.S.C, at pg. 235-237.
We have undertaken the above exposition on executive, judicial, diplomatic and sovereign immunities to drive the argument home that they are distinct from the doctrine of legislative immunity; and to make the point that the doctrine of legislative immunity does not provide a cover against criminal prosecutions of legislators in Nigeria, including a senate president, deputy senate president, speaker and deputy speaker of the house of representatives. The legislators themselves know this. This is why some of them currently are clamouring for immunity from prosecution for their officers.
The act of forgery of Senate Standing Orders that is alleged, is, by no stretch of logic or liberal definition of components of legislative functions, and because of the plaintive and escapist cry of persecution, a performance of legislative work or a transaction of legislative business. A plea that the alleged act is within the domestic forum [forum domesticum] of the Senate is in itself a forged excuse. It is not tenable. The most horrid form of domestic violence may be labeled an internal affair; and the vilest act of sexual harassment in the academia could be dressed up as domestic matter. Such disingenuous categorisation will not wash. Prosecution and persecution, and immunity and impunity may sound alike. But, certainly, they do not share the same meanings.
Jiti Ogunye, lawyer, public interest attorney, legal commentator, author, and essayist, is the Legal adviser of Premium Times.
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