The Legal Dimensions Of “Padding-Gate”
To millions of Nigerians still reeling from the shocking revelations of serial padding of the national budget for over a decade, the most gratuitous insult that could be added to their sense of injury and injustice is the insinuation by no less a person than the Speaker of the House of Representatives to the effect that the most despicable and ignoble act did not constitute a criminal offence. The same narrative was shared by Hon. Ado Doguwa, one of the Principal Officers of the House in an interview aired by Channels Television yesterday.
In spite of our collective indignation, however, we must also concede that ‘law’ is universally recognized as an ass and the pendulum of justice could swing either way depending on the quality of the case, our lawyers, and the context in which justice is applied. To contemplate otherwise is to subject the law profession itself to peril. It is what makes the law profession so fascinating.
And that is why, even as we huddle in disbelief at the audacity of our lawmakers to mock our collective sensibilities, we must also remain sober in the realization that a massive gap still exists between our collective outrage at their perfidy, and our minimum expectations for justice over the shameless fleecing of our national treasury by the tiny minority of kleptomaniacs who claim to be our representatives for over a decade.
And that is why, even as laughable as the claim may appear to some, there is some element of logic in the suggestion by Speaker Dogara that he does not consider the act of ‘padding’ the Appropriation Bill to be a crime. He should know because he is also a lawyer. It is now up to our laws and the robust arguments of our finest lawyers to disprove him. His perspective is not to be sniggered at. In America, serial killers have been known to escape justice on the grounds of temporary insanity! Without the qualities demonstrated by the late Johnnie Cochran and Rober Shapiro, it is doubtful if O.J. Simpson would have escaped conviction for the murder of his ex-wife Nicole Brown over twenty years ago. Respect for even the most improbable argument is an essential part of the mystique of law and its application.
It is not surprising that the seeming arrogance of the principal officers of the House on this matter has generating a lot of interest among lawyers. What follows, for example, is the perspective of Barrister Abubakar D. Sani titled “ALLEGED ‘PADDING’ OF BUDGET 2016 AND DOGARA/JIBRIN FACE-OFF – ANY PROSPECT OF CRIMINAL PROCECUTION?” The contribution was his reaction to the piece I wrote on the same subject last week. Enjoy!
The ongoing feud between the Speaker of the House of Representatives and the erstwhile Chairman of the House Appropriation Committee, Hon. Abdulmumuni Jibrin over allegations (and counter-allegations) of padding the 2016 budget has degenerated to the extent that each side is reportedly threatening to invite the EFCC, ICPC and DSS to investigate the other with the ultimate possibility of criminal prosecution.
In my opinion, the situation, once again, exposes the seeming widespread ignorance of the legal status of legislators, including the proceedings of the institution(s) itself, vis-avis the criminal (and even civil) justice system. While there is no doubt that law enforcement agents such as the DSS, ICPC, EFCC, etc., can investigate anyone, including legislators, it is also clear that, by virtue of the Sections 3, 23 & 30 of the Legislative Houses (Powers & Privileges) Act, Cap. L. 12, LFN 2004, all legislators enjoy limited immunity from criminal and civil process while they hold that status.
In this regard, it is important to outline the aforesaid provisions of the said law herein, as follows:
“3. Immunity from proceedings.
No civil or criminal proceedings may be instituted against any member of a Legislative House -
a. In respect of words spoken before that House or a Committee thereof;
b. In respect of words written in a report to that House or to any Committee or in any petition, bill, resolution, motion or question brought or introduced by him therein”.
“23. Restriction on evidence as to certain matters.
No evidence relating to any of the following matters, that is to say -
a. Debates or other proceedings in a Legislative House;
b. The contents of the minutes of evidence taken or any documents laid before a Committee of a Legislative House or any proceedings or examinations held before any such Committee, by a member of officer of the House or any shorthand writer employed to take minutes of such evidence or proceedings or in respect of any of the matters specified in paragraph (b) of this section, by any person who was a witness before the Committee, shall be admissible in any proceedings before a court or person authorized by law to take evidence unless the court or such last mentioned person is satisfied that permission has been given by the President or Speaker, as the case may be, of the House or the Chairman of the Committee (as the case may require) for such evidence to be given”.
“30. Courts not to exercise jurisdiction over acts of President, Speaker or Officer.
Neither the President or Speaker, as the case may be, of a Legislative House nor any officer of a Legislative House shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in him by or under this Act or the standing orders of the Legislative House, or by the Constitution.” (emphasis supplied).
Of the three, I submit that the last, i.e., Section 30, is problematic. This is because, by virtue of Section 4(8) of the Constitution Federal Republic of Nigeria 1999:
“The exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts by law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”.
This provision was affirmed by the Supreme Court, per Karibi-Whyte, JSC, in ADIGUN vs. ATT-GEN. OF OYO STATE (1987) 18 NSCC pt. 1 pg. 376 @ 399 (in relation to Sec. 4(8) of the 1979 Constitution, which is in pari materia with it).
In respect of Sections 3 and 23 of the Act, I submit as follows:
i. All members of the House, not just its officers, such as Speaker Dogara, Deputy Speaker Suleiman Lasun, Hon. Abdulmumuni Jibrin and the other dramatis personae, i.e., Hon. Ado Doguwa and Leo Ogor, enjoy limited immunity from criminal prosecution for the alleged ‘padding’ of the budget or in respect of anything they might have said within or to the House or the Appropriation or any other Committee of the House;
ii. This protection extends to words written by them in a report to the House or the said Committee “or in any petition, bill, resolution, motion or question brought or introduced” by them therein in respect of the 2016 Budget;
iii. Similarly, no evidence may be given in any court of law in respect of any debates or other proceedings in the House or of the minutes of evidence taken or documents laid before or proceedings or examination held, before the Appropriation Committee of the House in connection with the 2016 Budget.
That being the case, in my view, it is clear that while the reported threat of police investigation of the alleged ‘padding’ of the budget may be in order, anything beyond that, i.e., the criminal prosecution of any member of the House for alleged complicity therein, will have to contend with the said provisions of Sections 3, 23 and, possibly 30, of the Legislative Houses (Powers and Privileges) Act. However, such a possibility will, having regard to the provisions of Section 32 of the Act, depend on the discretion of the Hon. Attorney-General of the Federation, which he can only exercise “upon information given to him in writing” by Speaker Yakubu Dogara.
Finally, it may be observed, in passing, that were this spat to be going on in any of the State Houses of Assembly, the constitutional validity of the entire Legislative Houses (Powers & Privileges) Act could legitimately be challenged on the ground that, in relation to States, the Act is ultra vires the National Assembly. This is because, whilst the Act is expressed, vide Sections 2, 8(2), 32 & 33 (2)(c) thereof as applicable to State Legislative Houses, i.e., Houses of Assembly of the 36 States and their members, by virtue of Section 4(2) and Item 47 of the Exclusive Legislative List of the Constitution, the National Assembly may only regulate its own powers and the privileges and immunities of its members; it is incompetent to exercise such powers in respect of State Houses of Assembly or their members. It follows that, to the extent that the National Assembly purports to regulate State Houses of Assembly, the aforesaid provisions of the Act are ultra vires, invalid, null and void. By virtue of Sec. 4(7) (a) of the Constitution, only those Houses of Assembly can validly regulate their own powers, as well as the privileges and immunities of their members.