JUST last week, I was straining to present in a more palatable way the crass lawlessness we have exhibited in the operation of our laws. I wanted the proof of the pudding in that regard to be in the eating, more because I wanted to save face for us than that I had no facts and figures to back up the claim that we are an embarrassment to a world where the recognised method of accessing justice is through the rule of law.
I told you of what was going on in the Uyo Federal Constituency where for nine months the courts have said that a candidate in whose favour an election petition ruling was made should be sworn in, but that the National Assembly, INEC and the office of the Attorney-General of the Federation have failed or refused to obey the order of the courts.
I did not inform you of other parts of the country where the state houses of assembly have given one reason or the other why those pronounced to have won elections were rejected by the members of the house; that is that lawmakers refuse to obey pronouncements on the laws they made. As if to drive home the point I was making last week, a house of assembly gave reasons why an elected member in a rerun election in Ondo State could not be sworn in.
That type of case was in evidence in Edo State where the house, correctly in my view, asked for the INEC certificate to act on. When the certificate was presented in the Ondo State House of Assembly, the house still refused to swear in the candidate who happened to be a member of the Labour Party!Â Why?Â Donâ€™t ask me. I would tell you if we operated a country of laws, not just a country with or without laws.
In the Edo State House of Assembly, the member elected in a rerun in Akoko Edo produced an INEC certificate of return but the swearing in had to be delayed because someone claimed that the inspector-general of police had claimed that a security clearance had to be produced before the House could swear in the elected candidate! Where in our electoral laws is there a requirement of clearance from the security agencies before a person seeks elective office or that approves or bars him from being sworn in after he had been declared winner in an election?
What the electoral act says is clear. A political party fielding a candidate that is not qualified to stand election is taking a risk doing so because any disqualification can come only through the requirement of the law – that the person elected did not qualify for election because he had a criminal record or was otherwise not qualified so to do.
The Electoral Act of 2006 even makes copious provisions for punishing electoral offences and not in any of the provisions under sections 124-139 (i.e, part viii of the Act dealing with electoral offences) and especially sections 136 and 138 (dealing with offences on election day and undue influence respectively) are the courts not the final arbiter.
So how would the IG, if it is true he did do so, have written a letter to the Edo State House of Assembly that a candidate should not be sworn in without clearance that he had nothing to do with those who were held for causing trouble during the conduct of the election? While we agonise over the implementation of laws that are not in the books and the reluctance, refusal or failure to abide by the laws we swore to uphold, we now have in the National Assembly a bill that immunity from arrest should be extended to them and state legislators.
If we were to indulge them, we ought to have requested that the whole law-making tiers be included, that is all the members of the Senate and the House in the National Assembly, all the members of the 36 Houses of Assembly, all the elected chairmen and councillors of the 774 local government areas in the country.
In fact, logic demands that those who should claim entitlement to immunity, consistent with headship of an area of political governance are the chairmen of local governments, being on the same executive level as the governors and the president! But for reasons that are not strange to policies of greed, the third tier of government is left out.
For information, the proposal to grant immunity to lawmakers scaled the second reading in the House and is woven into requesting an amendment to the Legislative Houses, Powers and Privileges Act, Cap L12 2004, Laws of the Federation of Nigeria. They want protection from arrest on a mere allegation. They want to be arrestable only when they are caught committing a crime.
And if any arrest is to be made, the security agency doing so must act only on the permission of the leadership of the House, which means that those to endorse the execution of a warrant of arrest would now have to seek the permission of the President of the Senate, the Speaker of the House of Representatives or the Speaker of the House of Assembly of a State. I doubt that provision is made for what happens when the leadership of the Houses are involved in crime! The truth of the matter is that the Constitution being our Supreme law, any arrangement to lengthen the list of those I have come to call the 74 monarchs can only be achieved through constitutional amendment.
Section 308 of the Constitution is clear that those who are protected from arrest and prosecution during their period of office are the president and the vice president, the 36 governors and the 36 deputy governors – This is not a PDP micro-credit. What we are doing is Ekiti State Micro-credit. Seventy four of our citizens who are supposed to be above the laws of the land! No one seems to be interested in the fact that that protection is available only when they perform the functions of their office which does not include money laundering or corruption! But our courts have not been definite in telling them that they are subject while in office to the disciplinary powers of the Code of Conduct Tribunal.
Did they as public officers not swear that they would abide by the provisions of the Fifth Schedule to the Constitution which is the code of conduct for all public officers and which lists those bound by it as including the 74 already covered by immunity! Section 3 of the Legislative Houses, Powers and Privileges Act, protects lawmakers from arrest when they are in session. Not only that, whatever they say on the floor of the house is protected absolutely! No process can be served on them while in session, and even if any of them is arrested or sentenced to jail, the Act provides for the leadership of the House being informed.
But the new law seems to be saying that no such arrest, even with a warrant can be effected on a protected member wherever he may be, without the permission of the leadership of the House! It is unsettling that while we are asking for access to freedom of information in Nigeria, some of its citizens are asking for protection against the laws of the land in the area of restricting the operation of security agencies and the courts. The whole world is adopting transparent governance.
In 1990, only 13 countries had adopted national right to information laws whereas today, there are 70 such laws adopted across the world with a further 20-30 of them under consideration in other countries.Â Our country may have been one of the 30 processing information access laws.Â I doubt that we now qualify for any slot among the 30! Or is the bill still there to be dug up from the archives?