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Governor Ayodele Fayose has no immunity, he’s a goner!

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“There is no immunity for impunity as far as electoral malfeasance is concerned. In the cases of Obi v Mbakwe, Alliance for Democracy v Ayo Fayose and Amaechi v INEC it has been established that governors cannot hide under the immunity clause to commit electoral fraud.” – Femi Falana

Parliamentary immunity in the Nigerian context is not a protector of democracy. Nigeria’s concept of parliamentary immunity has attracted criticisms for facilitating abuses and protecting corruption.

In the light of Ekitigate, parliamentary immunity has received a lot of attention from Nigerians. It is widely viewed as a rising problem for promoting corruption and abuse of power. 

Immunity in Nigeria has become an easy way to obstruct the law. It is responsible for the increase in corruption crimes committed by governors and members of the National Assembly. With the spate of corruption cases involving governors and other politicians, Nigerians have lost confidence in their chosen representatives for their political malpractices under the guise of immunity.

The Nigerian brand of parliamentary immunity only serves to protect the interests of the representatives, rather than the interests of those they were elected to represent. Under the British system, legislators are granted partial immunity from prosecution. British lawmakers and legislators in other countries that practice the British model are protected from civil action for slander and libel by parliamentary immunity while they are in the House. However, parliamentary immunity from criminal prosecution is not enjoyed by members of parliament. 

Members of the parliament may not be sought, prosecuted, judged, or imprisoned for actions taken in the course of their duties as parliamentarians. They are immune from prosecution for defamation committed in the exercise of their functions. This includes speeches and votes, law proposals, amendments, as well as reports and other actions on the floor of the House. Under the US presidential system that we operate, members of the US Congress enjoy a similar parliamentary privilege like members of the British parliament. The US Congress members cannot be prosecuted for anything they say on the floor of the House or Senate. They are not immune from criminal prosecution.

The immunity clause under section 308 of the 1999 Nigerian Constitution provides for the immunity of President, Vice-President, Governors and their deputies.

Nigeria’s foremost human rights lawyer Femi Falana (SAN), in an interview with the Punch, explicitly clarified the issue of immunity as it relates to the prosecution or otherwise of the star of Ekitigate, Governor Ayodele Fayose. Many Nigerians have argued that Fayose is covered under the immunity clause of the Constitution. It is their contention that Fayose cannot be prosecuted because of his immunity as a governor. 

Here is Falana making a solid legal cause for the prosecution of Fayose:

“The army authorities had investigated the fraudulent governorship election purportedly won by Mr. Ayo Fayose in June 2014. It has been confirmed that it was not an election but a coup executed by armed soldiers led by one General (Aliyu) Momoh.

“The panel which investigated the shameful event has recommended the dismissal of a number of military officers and the further investigation of others by the EFCC over the money illegally collected by them for the purpose of subjecting voters to horrendous harassment and brutalisation. Captain Sagir Koli watched the whole messy show and decided to record Momoh and his accomplices.”

Falana added that once the panel report is released and the investigation of the EFCC on the alleged “N4.8bn which was criminally diverted for the election is concluded all the indicted suspects will be arrested and prosecuted”.

 “There is no immunity for impunity as far as electoral malfeasance is concerned. In the cases of Obi v Mbakwe, Alliance for Democracy v Ayo Fayose and Amaechi v INEC it has been established that governors cannot hide under the immunity clause to commit electoral fraud.

“By the strict interpretation of section 308 of the Constitution no court process can be issued or served on a governor. But because immunity cannot be pleaded or invoked to cover electoral fraud, elected governors are served with court processes and dragged to court to respond to allegations of electoral malpractice.”

Representatives enjoy immunity because it gives them the ability to act for the represented. Immunities are designed to protect the functions borne by the individual. The same thing goes for the diplomat, the trial witness, the judge, the sovereign. The principle behind parliamentary immunity is to protect the ability of elected assemblies to debate and vote without interference by non-elected authorities. It should be understood that parliamentary immunity is not to protect the governors or the legislators, but rather the ability to act on behalf of those whom they were elected to represent. In other words, the immunity is there to protect the parliament not the governors or the legislators. 

Yasser Salah a former Egyptian MP was caught in smuggling 550 mobile phones worth more than EGP 1.5 million. Salah explained to the officer arresting him that he could not do so because he was a member of parliament. But the Egyptian Economic Court disagreed with Salah. He was sentenced to two years in prison. In 1994, the Japanese lower house unanimously stripped a Japanese lawmaker of his parliamentary immunity. Kishiro Nakamura was accused of accepting a $95,258 bribe from Kajima Construction Company to quash a bid-rigging probe by the Fair Trade Commission. He surrendered himself at the Tokyo district prosecutor’s office and was arrested and prosecuted. 

For the umpteenth time, let me emphasize that Ekitigate took place when Fayose was a gubernatorial candidate and not a sitting governor. Where does the so called immunity fit in? For the sake of argument, let’s assume Fayose committed election fraud as a sitting governor. Even with immunity, the Constitution provides avenue to litigate criminal acts of officials by judicial review. 

Under the Nigerian law, immunity for official act enjoyed by lawmakers is similar to the one extended to Nigerian judges. But criminal acts and acts that are committed outside their official duties are liable to court processes. Ekitigate doesn’t fall within the official mandate of Fayose as a governor. Election fraud is not part of governor’s official duty. Ekitigate qualifies Fayose to be tried to the fullest extent of the law. Fayose has no immunity. Therefore, it’s certain that Fayose will be prosecuted. And he’s a goner!

As the Presidential candidate of Congress for Progressive Change (CPC) in 2011 elections, President Buhari promised: “We will amend the Constitution to remove immunity from prosecution for elected officers in criminal cases.” There is no better time than now for the president to initiate a bill that will strip all elected officials of the political license that allows them to loot the treasury with unrestrained greed and impunity.

Bayo Oluwasanmi, bjoluwasanmi@gmail.com


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