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Legislative Immunity: Protecting Democracy or Preserving Corruption?

Posted: Jul 14, 2016 at 3:00 pm   /   by   /   comments (0)

On the floor of the House of Representatives Tuesday, Rep. Leo Ogor, the House Minority leader introduced a bill to amend section 308 of the 1999 Constitution to allow the leadership of the National Assembly enjoy immunity from criminal and civil prosecution like governors, deputy governors, president and vice president. Already the bill has been passed for second reading, writes STEPHEN UBIMAGO, who takes a look at the attraction, merit and demerit of legislative immunity for the leadership of the parliament…..


It was a rowdy session on Tuesday, July 12, at the House of Representatives after a bill seeking to provide immunity for the leadership of the National Assembly while in office, was introduced.

The bill, which is being sponsored by Honourable Leo Ogor, the minority leader of the House of Representatives, is proposing an amendment to section 308 of the Nigerian constitution to allow the National Assembly leadership enjoy immunity while in office.

Presenting the bill to members of the House, Ogor said: “The amendment is straight forward but it needs some clear explanation. The amendment seeks to strengthen the National Assembly. The leadership should be protected in the period they are in office.”

But his opinion was immediately countered by the majority leader of the House, Mr. Femi Gbajabiamila, who argued that since the Senate was currently having some issues, discussing a bill on immunity clause for National Assembly leadership is ill-timed.

Current Nigerian Jurisprudence on Immunity


According to section 308 of the 1999 Constitution:

  1. (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.

(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.

Case Law


“I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect, before the police look for evidence implicating him. If this is well understood, then it will be easy to appreciate how a Governor (for example) can be investigated, evidence both analytical and forensic assembled, collated and weighed without breaching section 308(1) of the 1999 constitution which puts restrictions on legal proceedings, arrest or imprisonment, or the compelling of appearance by process of court, as far as he is concerned. The dignity of that office and freedom from coercive personal harassment of the incumbent are not thereby breached.” (Per Uwaifo, JSC)

What is Parliamentary Immunity?

According to Merristem online dictionary, “Parliamentary immunity, also known as legislative immunity, is a system in which members of the parliament or legislature are granted partial immunity from prosecution.

“Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the parliament itself. This reduces the possibility of pressing a member of the parliament to change his or her vote by fear of prosecution.”

Countries where Parliamentary Immunity Obtains:

  1. Brazil

The 1988 Brazilian constitution grants parliamentary immunity to members of both the Chamber of Deputies and the Senate.

Unlike other countries, Brazilian parliamentary immunity is also extended to crimes committed outside a parliamentarian’s official duties (murder, theft, etc.).

This does not apply for crimes committed before the Member of Parliament takes office. Members of parliament can be arrested only for crimes if caught at the time of the criminal act in flagrante for a crime with no possibility of bail.

These arrests can be overruled by a floor vote of the particular parliament chamber that parliamentarian belongs to.

  1. France

Members of the Parliament of France enjoy irresponsibility for what they did as parliamentarians, and partial inviolability – that is, severe restrictions for the police or justice to arrest or detain them.

Both irresponsibility and inviolability are mandated by article 26 of the Constitution of France. These dispositions are somewhat controversial, following abuse of such privileges.

  1. Westminster system countries

Legislators in countries using the Westminster system, such as the United Kingdom, are protected from civil action for slander and libel by parliamentary immunity whilst they are in the House.

This protection is part of the privileges afforded the Houses of Parliament under the Common Law (parliamentary privilege).

Parliamentary immunity from criminal prosecution is not enjoyed by Members of Parliament under the Westminster system.

  1. Germany

Article 46 of Germany’s Constitution states: “At no time may a Member be subjected to court proceedings or disciplinary action or otherwise called to account outside the Bundestag for a vote cast or for any speech or debate in the Bundestag or in any of its committees,” with exceptions made for “defamatory insults.”

The Bundestag can vote to lift immunity for specific members, and to allow prosecution in cases relating to alleged criminal activity. The Bundestag may also order that a detainment or prosecution of a member be suspended.

  1. Italy

Parliamentary immunity in Italy was re-instated in 1948 by the Constituent Assembly. Immunity has been limited in 1993, but the abuse continues by means of denying authorizations to certain judiciary acts; therefore, in the final judgment, the word of the Constitutional Court often overturns the decisions of Parliament to protect its members, giving the green light to the activities of the judiciary.

  1. Ukraine

Article 80 of the Ukrainian Constitution states that the parliamentary immunity is guaranteed to the Peoples’ Deputies of Ukraine.

The peoples’ deputies of Ukraine do not carry a legal responsibility for the results of voting and their saying in the parliament and its bodies, except the responsibility for an insult or a defamation. The peoples’ deputies of Ukraine cannot be held criminally liable, detained or arrested without the agreement of the Verkhovna Rada.

Position of Counsels on Legislative Immunity

  1. Prof Taiwo Osuipitan (SAN), Professor of Public Law, University of Lagos

Well, everybody in Nigeria is now a lawyer, both trained and untrained. And everything is debated and settled on the pages of newspapers, which is very unfortunate. You have to look at the history behind the immunity clause. The art of governance is a superior duty. You do not want a situation where a governor, whilst he’s in office, is looking behind him and saying, ‘I’m going to court to testify.’

The immunity clause is not limited to criminal cases. It also applies to civil matters. Why are we singling out criminal cases?

Do you want the clause also to be removed from civil cases in which case your governor is in and out of court on daily basis? What time will the governor have to settle down to governance?

For example, a case is fixed for Monday, which is Exco Day in Lagos State. Do you expect the Governor to go to court on that day and testify in a civil matter in which he has been sued, or in which a subpoena has been issued against him?

You know once you have a subpoena, you must go to court. So, you expect the governor to go to court on Exco Day.

Meaning he has to downgrade other pressing state functions, because he must give preference to the court, otherwise a case of contempt of court may arise against him.

There is a Fawehinmi’s case involving Tinubu, where Fawehinmi got an order of court declaring that immunity does not extend to investigation. Thus you don’t have to wait for a governor to finish his term of office before commencing investigation on him. You can collect your evidence whilst he’s in office. And once he’s out of office, you can prosecute him.

I am of the belief that that such offices as that of Senate President, Deputy Senate President; Speaker; and Deputy Speaker should also enjoy some limited immunity.

But I agree with those who say the timing is bad. It appears those occupying the leadership of the National Assembly, because of all the charges that have been brought against them, are trying to hurry the passage of the amendment for selfish reason, to protect themselves and their office. I don’t think it is for the larger general public good. So for me, the problem is not the subject of immunity but the selfish motive behind it.

Asked if governor or even parliament leadership if granted would not use their position to obstruct investigation?

He says: I don’t think so. Governors and high public office holders are endangered species. They have more enemies in government than friends.

But the document they need for prosecuting them can be produced by civil servants who are aggrieved. The civil servants are the most aggrieved set of human beings around.

And for little or nothing, they will bring out the evidence on demand. So you can do your investigation discretely whilst the governor/ leader of parliament is in office. It is not a perpetual immunity.

  1. Mr. Adesina Adegbite, Former Secretary General of the Nigerian Bar Association (NBA), Ikeja branch

I am of the view that if possible, the immunity clause should be completely done away with from our statute books.

It has become a cover for corruption and the perpetration of all manner of heinous crimes by public officials covered by the clause.

It is the bastion of impunity; but we must concede that since it is not only Nigeria that grants such privilege to its high public office holders, then it means there is merit for retaining the immunity clause.

The idea is to ensure that occupiers of high executive office in the land are able to do their work fearlessly and single-mindedly.

The only problem is that in Nigeria it has been abused. Let us rather be looking at how even if we continue to retain the immunity clause we create safeguards that would ensure that it is not abused.

Have you noticed that public offices that currently enjoy immunity have limited tenure?

But legislators do not have limited tenure. They could be returned to office ad infinitum if the win in an election. That is where I have issue with granting immunity to legislators.

But if they agree that the legislative office cannot be returned to in perpetuity but limited in terms of tenure, then we could dare to contemplate conferring it on them.

But the problem is that the current National Assembly leadership is selfish. The motive behind the push for immunity to be extended to them is selfish, and to that extent I decline support for it.