By Dayo Benson, Political Editor
In the heat of recent national controversy on immunity clause enshrined in 1999 Constitution, President Umaru Musa Yarâ€™ Adua had expressed support for its removal. He , like most public commentators who are against the clause had argued that those who are protected by immunity clause should not be shielded from persecution if found criminally liable of any offence while in office.
Section 308 of the 1999 Constitution provides immunity from persecution to president, vice president, governor and deputy governor. According to Section 308 of the constitution:
308.-(1) Notwithstanding anything to the contrary in thisÂ Restrictions onConstitution, 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 on 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 aÂ Â 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 aprlies to a person holding the office of President or Vice-President, GovernorÂ or Deputy Governor; and the reference in this section to â€œperiod of officeâ€ is a reference to the periodÂ during which the person holding such office is required to perform the functions of the office.
During the regime of former president Olusegun Obasanjo, some governors could not be prosecuted even when glaring criminal charges were brought against few of them after they left office either by impeachment or after serving out their term. It was actually that experience which became a national embarrassment that stimulated the debate for the removal of the immunity clause from the constitution.
A couple of weeks ago, Italian Constitutional Court delivered a land mark judgment on immunity for the countryâ€™s president. In the judgment, the court ruled that Prime Minister Silvio Berlusconi lacks immunity from prosecution. There have been a series of criminal allegations against Belisconi. With that judgment the president is now open to prosecution
Back at home at a time when public sentiments weigh heavily against the National Assemblyâ€™s performance, a controversial bill is currently before the lower legislative chamber. The bill which has already passed second reading in the House of Representatives, is seeking to amend Legislative Houses Powers andÂ Privileges Act. When passed into law, it will be the lawmakerâ€™s version of immunity clause in the constitution.Â In fact the legislators are seeking to amend Section 308 of the constitution to suit their purpose. According to the bill sponsored by Hon. Henry Seriake Dickson from Bayelsa State:
“1. The Legislative Houses (Powers and Privileges) Act 2004 Ca. L12 Laws of the Federation of Nigeria hereinafter referred to as â€œthe Principal Actâ€ is hereby amended as set out in this Bill.
2. Section 29 of the Principal Act is hereby amended by inserting new subsections (1), (2) and (3) and the original section 29 be renumbered as section 29 (4) and new subsection (5) as follows:
29. (1) A member of the Legislative House to which this law applies, shall not be arrested without a warrant duly issued by a Judge of the Federal High Court, High Court of the Federal Capital Territory or High Court of a State except in the following circumstances:-
(a) Upon a reasonable suspicion or allegation of commission of treason or treasonable felony against the Government of Federal Republic of Nigeria;
(b) When the member is physically caught in an actual commission of a felony against the Federal law or the law of a State.
(2) A warrant duly issued in accordance with the provisions of subsection (1) above for the apprehension of a member of the National Assembly shall be deemed to be duly executed, if such warrant is served on the presiding officer of the Legislative Houses through the Clerk of the House.
(3) The presiding officer of the Legislative House concerned shall within seven Legislative days endorse or cause the said warrant to be endorsed to or served on the member against whom it is issued and requiring the said member to appear before the issuing Court within fourteen legislative days.
(4) Where a member of the National Assembly is-
(a) arrested or detained in custody upon the 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.
(5) Any presiding officer or other officer(s) of a Legislative House, who suppresses, fails or refuses to facilitate the attendance before a competent court issuing a warrant to secure the attendance of a member of the Legislative House before such Court as provided in this Act, may be guilty of contempt of Court and may be punished as such.
(6) Without prejudice to any law conferring powers on any person or agency to the contrary, no member of a Legislative House shall be arrested by any agency or authority within the precinct of a Legislative House which shall include a residence of such member.
(7) Without prejudice to any law conferring powers on any persons or agency to the contrary, no warrant shall be executed within the precinct of a Legislative House unless with the prior consent of the presiding officer of the Legislative House.”
However it is not all the legislators that are in support of the bill. According to Honourable Ita Enang â€œ The bill seeks to create a class of people above the law but we should know that we are bound by the constitution and any law that is against the constitution is null and void. Other Nigerians who also spoke on the bill reacted in similar way. Several interpretations have been givenÂ to the actual motive of the bill, but the question is what exactlyÂ are the law makers up to?