Immunity Or Impunity Clause?

Some months ago, the Lekki home of Senator-elect Buruji Kashamu was barricaded by operatives of the National Drug Law Enforcement Agency (NDLEA) reportedly to arrest the “wanted drug baron” at the request of the United States Government. As soon as his house was barricaded by NDLEA men, the debate started about the “legality” of his impending arrest. Many of those in the senator’s support cited his “immunity” being a senator, even though he was then yet to be sworn in.

As usual there were no shortages of emergency “public affairs analysts” speaking for or against the “arrest” of the senator. I simply avoided contributing to the matter at that period because all that mattered to me then was for the President-elect, General Muhammadu Buhari (as he was then known) to be sworn in. So, Kashamu’s case was the least of my concerns!

Only recently, a certain Leo Ogor who is the Minority Leader in the House of Representatives came up with a shocker: there should be Immunity clause to cover the National Assembly too. I had to convince myself to be sure this man wasn’t speaking from excessive dosage of alcoholic beverage for him to ejaculate this (for want of more appropriate words to describe it) trash. One wonders with clowns and drug barons like Kashamu in the Senate and other fraudsters who have numerous cases of corruption against them, including the Principal Officers, that Ogor specifically solicited immunity for, how the so-called immunity will not translate to impunity!

Still on Ogor, let me quote him (I am assuming The Vanguard reporter got him right): “If the head of the executive arm, the President and his vice should enjoy immunity, the heads of the other two arms of government, the legislature and the judiciary, should also benefit from the immunity”(The Vanguard 5 October, 2015).

Let us agree with this man for a moment that the Principal Officers at the National Assembly in fact need not be distracted, hence deserves immunity. Let us equally accept without conceding that members of the National Assembly are in fact the “Honourables” they are taken to be so should be excused from prosecution during their tenure in office. What baffles me is that how then will be account for offences committed before some of them fraudulently joined the House? What happens to persons with questionable integrity who find their way into the House hence bringing it to disrepute? Should they also be granted immunity? If this last class of people have immunity, we can easily conclude that they will commit acts of impunity!

Was Ogor talking about “Parliamentary Immunity”? I have heard it said by one of the lawyers who as a guest panellist on a national television station during the Kashamu saga that after being sworn in, he is immune from arrest or prosecution because of “parliamentary immunity”. Oh my God!

I am not a lawyer but I know this man must have either been poorly educated or he is just doing his best to look stupid. If there is anything I know about Parliamentary Immunity, as the name connotes, is that the immunity covers only “offences” or speeches committed during parliamentary debates or committee meetings. This has little to do with criminal prosecutions!

The issue of parliamentary immunity started in England during the Glorious Revolution that led to the adoption of the English Bill of Rights in 1689 sharply limited this practice by granting immunity to members against civil or criminal action stemming from the performance of their legislative duties. The Bill provided that “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.”

In the United States, parliamentary immunity preserves the independence of the legislature by reinforcing the Baron de Montesquieu’s principle of separation of powers, thereby, preventing intimidation of legislators by the executive, and protecting parliamentarians from unwarranted appearances before a possibly hostile judiciary. So much so for parliamentary immunity!

Ogor and people like him need to hear this. The most important thing in applying parliamentary immunity is whether the legislator’s actions fall within the “sphere of legitimate legislative activity.” There are actions a legislator may take, even when s/he is engaging in activities related to s/he legislative office, that do not fall within this sphere. If an action is not a legitimate legislative activity, the legislator is not protected by legislative immunity. Nothing in granting parliamentary immunity to National Assembly members prevent them from arrests save from, performing their legislative duties.

When we say, “legislative duties” we mean: actions that a legislator takes during formal legislative proceedings, such as chairing a committee, debating, making motions, and voting; legislative committee investigations; impeachment proceedings; enacting and enforcing legislative rules and others. Also, a legislator is “immune” from arrest on his way to, or from a parliamentary proceeding; committee meeting or any other official legislative function(s) or for whatever he said or has done on the floor of the parliament. This is how far the issue of parliamentary immunity goes. Any other thing which people like Ogor are asking for will only end in impunity!

So, as to whether Kashamu can be arrested while serving his term in the senate, I say “Yes” with all the emphasis I can muster because parliamentary immunity does not extend to activities or “crimes” committed outside legislative spheres. But my question is: Will they ever arrest him, even if he were not in the Senate covered by the so-called “parliamentary immunity” this “charge and bail” lawyer referred to? This is the impunity we talk about this time represented by people like Leo Ogor!

Olalekan Waheed ADIGUN, a political analyst and strategist, writes from Lagos.

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