Union as its first “anti-corruption champion in Africa” in 2018, he
called on member states to “invest in institutions to entrench
transparency and accountability.” But the recent push by many
lawmakers from his All Progressives Congress (APC) party to grant
themselves immunity from prosecution for corruption would seem to leave
Mr Buhari’s national commitment to tackle corruption in tatters and
fatally undermined.
The bill, known as “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,” has passed
the second reading at the House of Representatives. It seeks to amend
Section 308 of the constitution to extend immunity to all the principal
officers at the country’s National Assembly and the houses of assembly
of the states while in office.
Briefly, Section 308 provides that: “no civil or criminal proceedings
shall be instituted or continued against the President, Vice President,
Governors and Deputy Governors during their period of office.”
The proposed amendment to Section 308 to cover the lawmakers would mean
that any criminal or civil action for crime of corruption or other
egregious crimes they commit while in office would be stayed until the
expiration of their tenure.
The bill first appeared in parliament in 2016 but the lawmakers then
backtracked after a public outcry over the move.
In effect, the bill will protect lawmakers from legal consequences for
corruption, exacerbate the impunity that prevails in Nigeria’s
political circles and worsen the country’s ranking in Transparency
International’s Corruption Perception Index. And this would have a
negative effect on the human rights of Nigerians.
Since the return of democracy in 1999, several politicians—including
governors with allegations of corruption against them — have sought to
hide out in the National Assembly. The proposed bill will now make them
almost untouchable once they swear their oath of office as lawmakers.
Some lawmakers, including the sponsor of the bill, Odebunmi Olusegun of
Ogo-Oluwa/Surulere federal constituency (APC, Oyo), and at least two
members of the opposition People’s Democratic Party (PDP)—Toby
Okechukwu (PDP, Enugu) and Nkem-Abonta Uzoma (PDP, Abia) —believe that
the bill will protect them from “blackmail” while in office; that
fear is misplaced.
The lawmakers are already covered by parliamentary immunity under the
Legislative Houses (Powers and Privileges) Act, 2018, which means they
are immune from civil or criminal proceedings for anything they say in
parliament.
This is a privilege developed to ensure open and fearless debate in
Parliament and is similar to the situation of lawmakers in the US and
UK, where members of Parliament cannot be sued for defamation for
statements made in Parliament, which Nigerian politicians frequently
cite as “best practices.”
However, this Act doesn’t shield lawmakers from prosecution for crime
of corruption or other egregious crimes. The proposed amendment to
Section 308 would now extend the immunity provided under the Act to
shield lawmakers from criminal and civil proceedings, far beyond
existing Parliamentary privileges and immunities.
The push for immunity for lawmakers ignores the history and legacy of
corruption in Nigeria and its impact on human rights. It’s also at
odds with Nigeria’s international commitments as a member of the
United Nations and the Commonwealth.
There is no legal justification to provide immunity to lawmakers beyond
the privileges they already enjoy, as to do so would be antithetical to
the fundamental principle that all persons are equal before the law, and
to Nigeria’s voluntary obligations under the UN Convention against
Corruption, which in article 30(2) requires states parties to limit
immunity from investigation, prosecution or adjudication of corruption
offences.
Similarly, the Commonwealth Working Group on the Recovery and
Repatriation of Assets of Illicit Origin has stated that Heads of
State/Government, ministers and other public officials should not have
immunity from prosecution for alleged criminal activity.
Lawmakers also argue that if the president, his deputy, state governors
and their deputies can enjoy immunity, there is no reason why they
should not also enjoy immunity. But it’s difficult to see how granting
immunity to lawmakers will aid the fight against grand corruption in the
country.
The lawmakers’ “levelling up” strategy is in fact
counter-productive, as section 308 of the Constitution is already shown
to impede disproportionately the conduct of inquiries, prosecutions and
the sentencing of the persons it covers, and thereby contributing to the
prevailing impunity of politicians for corruption.
Lawmakers’ immunity from prosecution for corruption would fuel
perceptions that those charged with the responsibility to make laws for
the country are seeking to use their position to stay one step ahead of
the law.
Rather than trying to “level up” with the executive—at both the
federal and state levels—members of the House of Representatives
should push to exclude section 308 or limit its application to cases of
corruption and other similar crimes that have an impact on human rights.
Doing this will prompt real change in the country’s political culture
and help to improve the lawmakers’ image with Nigerians.
If the bill is passed, it will constrain the ability of Mr Buhari’s
government to fight corruption, as it will mean that lawmakers will see
expanded opportunities to line their pockets and divert scant public
resources through, for example, the so-called “Constituency
Projects” and with no fear of facing prosecution while they remain in
office.
The Independent Corrupt Practices and Other Related Offences Commission
(ICPC) already found in a recent report that Nigerian federal lawmakers
use the Constituency Projects as a conduit for pocketing public funds.
This will deny justice to Nigerian victims of human rights violations
and abuses caused by corruption.
All human rights can be restricted by corruption, be they economic,
social, cultural, civil, or political rights. Opening the door to
impunity threatens the rights of all people in Nigeria. The higher
levels of corruption, the lesser degree of human rights protection. For
example, corruption in the management of public resources and public
services denies people their right to education, health and other
rights.
Criminal prosecution represents the best hope for holding lawmakers to
account for corruption, since Nigerian laws do not currently allow
people to pursue cases in civil or human rights action against corrupt
politicians.
If lawmakers want to protect themselves from politically motivated
charges, they should pass laws to reform and improve the country’s
criminal justice system. This will ensure that due process is always
observed in corruption cases, including those that involve lawmakers,
and that the executive does not use its anti-corruption fight as a tool
for political expediency.
Whether the Speaker of the House of Representatives Mr Femi Gbajabiamila
will use his leadership position to ensure that the bill is dropped,
remains to be seen.
President Muhammadu Buhari’s job of tackling corruption is already
complicated enough without immunity for lawmakers. He now must publicly
condemn and reject the bill, if he is to be able to deliver on his
anti-corruption promises to Nigerians.
It’s time for Mr Buhari’s government to comply in law and in
practice with Nigeria’s international obligations and commitments.
But if the bill will go ahead, it’s up to the public to put pressure
on the lawmakers to drop the bill and stop the impunity. That means
people being constantly on their guard against corruption and to ensure
that the public interest is protected in any constitutional amendment.
Otherwise, Nigeria’s lawmakers will be able to cloak corruption behind
the shield of immunity. That will allow them to do as they please and
restrict access to justice for victims of corruption, with devastating
consequences for human rights and the public interest.
_Kolawole Olaniyan, author of Corruption and Human Rights Law in Africa,
is legal adviser at Amnesty International’s International Secretariat,
London._