The limits of legislative arrogance – should criticism of a legislative house be actionable defamation?
In comments widely reported in the media the Speaker of the House of Representatives, Hon. Yakubu Dogara appeared to resort to mild scare tactics in order to deflect criticism of the House and himself for allegedly “padding” the 2016 Budget.
Mr. Speaker was reported as having “dismissed the efforts of the Economic and Financial Crimes Commission, the police and the Independent Corrupt Practices and other related offences Commission to investigate the alleged padding”, and, to have added that: “It doesn’t make sense. They have forgotten about the Legislative House Powers and Privileges Act, Sections 24, 30 and others, which state that most of the things we do in the National Assembly are privileged. They cannot be grounds for any investigation into the procedures or proceedings against a member of Parliament; either the Speaker or the President of the Senate; once they are done in the exercise of their proper functions.”
By specifically referring to two clauses of the Legislative Houses Powers and Privileges Act, the Hon. Speaker – a lawyer – has clearly put them in issue and thereby invited comment, wittingly or otherwise, to his position.
So what exactly, do those provisions of the law say? We shall review them seriatim, as follows:-
“24. Publication of certain statements and writings an offence.
(1) Any person who-
(a) Publishes any statement, whether in writing or otherwise which falsely or scandalously defames a Legislative House or any Committee thereof; or
(b) Publishes any writing reflecting on the character of the President or Speaker, as the case may be, of a Legislative House or the Chairman of a Committee of a Legislative House, in the conduct of his duty as such President, Speaker or Chairman; or
(c) Publishes any writing containing a gross, wilful or scandalous misrepresentation of the proceedings of a Legislative House or of the speech of any member of Legislative House, shall be guilty of an offence and shall be liable on conviction to a fine of two hundred naira or to imprisonment for twelve months, or to both such fine and imprisonment.
(2) In this section “publish”, in relation to any writing, means exhibiting in public or causing to be read or seen, or showing or delivering, or causing to be shown or delivered, with the intent that the writing may be read or seen by any person”
“30.Courts not to exercise jurisdiction over acts of President, Speaker or Officer.
Neither the President or Speaker, as the case maybe, of a Legislative House, nor any officer of a legislative house shall be subject of 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.”
For reasons which I shall presently outline, I submit that both provisions are problematic, if not outrightly ultra vires the National Assembly and are, therefore, invalid. Starting with Section 24 of the Act, I submit that it can be equated to a legislative Sword of Damocles hanging over any one that dares to criticize the National (or a State House of) Assembly, even in good faith. Indeed, it is no exaggeration to suggest that it harks back to the dark days of Decree No. 4 of 1984, enacted by the military regime of then General (now President) Muhammadu Buhari.
For obvious reasons (given that the focus of this piece is Section 24 of the Act), we shall not allow Section 30 to detain us beyond observing, in passing, that it is inconsistent with Section 4(8) of the Constitution, which precludes the National Assembly or a State House of Assembly from enacting any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.
With regard to Section 24 of the Act, I submit that it can only be valid to the extent, if any, with which it is consistent with either the 1999 Constitution or the African Charter on Human & Peoples Rights – more on this later . As for the Legislative Houses Powers and Privileges Act itself, a brief history is apposite. The Act was enacted in 1953, when Nigeria was still a British colony, sequel to the introduction, in 1951, of regional autonomy and regional legislative houses.
Accordingly, by virtue of Section 315 of the 1999 Constitution, the Act can only be effective to the extent that its subject matter is one in respect of which either the National or State Houses of Assembly are competent to legislate upon. This requirement is satisfied by Item 47 of the Exclusive Legislative List of the Constitution which empowers the National Assembly to regulate its own powers as well as the privileges and immunities of its members.
A further critical test is that the Act – or any other piece of legislation apart from the Constitution – must not be inconsistent with the African Charter on Human & People’s Rights as enshrined in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, 1981. This was laid down by the Court of Appeal in IGP vs ANPP (2007) 18 NWLR pt.1066 page 457 @ 500C, per Adekeye, JCA (as he then was). I submit that Section 24 of the Legislative House (Powers and Privileges) Act fails this particular test. This is because, in my view , those provisions of the Act are inconsistent with the right to equal protection of the law under Article 3(2) of the African Charter.
The Court of Appeal examined the scope of this right in N.N.P.C vs FAWEHINMI (1998)7 NWLR pt.559 page 598 @ 616. Before looking into that decision in greater detail, let us pause to refer to the definition of the right in BLACK’S LAW DICTIONARY, 8th edition, at page 577:
“equal protection of the laws demands that laws will only be legitimate if they can be described as just and equal . . . equal protection guarantees that the government must treat a person or class of persons the same as it treats other persons or classes in like circumstances . . . equal protection means a legislation that discriminates must have a rational basis for doing so. And if the legislation affects a fundamental right or involves a suspect classification, it is unconstitutional unless it can withstand strict scrutiny”
How, then, does Section 24 of the Legislative Houses (Powers and Privileges) Act violate the right to equal protection of the law?
I submit that the answer to this question is in the dictum of the Court of Appeal in NNPC vs FAWEHINMI, supra, where it held, per Ayoola, JCA (as he then was), at page 615 of the report, thus:
“Although Article 3 of the Charter appears general and absolute in its terms, the rights of equal protection of the law which it recognizes must be understood as ‘equality among equals’ . . .
The guiding principle is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed . . . what it forbids is discrimination between persons who are similarly in similar circumstances. It does not forbid different treatment of unequals. The rule rather is that ‘like should be treated alike and that unlike should be differently.”
It is elementary that by virtue of Sections 4, 5 and 6 of the Constitution, the Legislature is just one of three co-equal arms of Government, the other two being the Executive and the Judiciary. No arm is superior to the other(s) . In other words , they are all similarly circumstanced. To that extent, they must be treated alike, and it violates the right to equal protection of the law for any statute to confer a privilege or impose a liability on any of them to the exclusion of the other(s). I submit that this is precisely what the National Assembly has done (or is deemed to have done) vide Section 24 of the Legislative Houses (Powers and Privileges) Act.
The reason is clear : none of the other two arms of government – the Judiciary and the Executive – enjoys the privilege of exposing its critics to penal sanctions by legislative fiat , except of course, the inherent powers of a court to punish for contempt, under Section 6(6)(a) of the Constitution. I am not aware that any member of the Executive, at any level, either the President, the Vice-President, Governors, Deputy-Governors or any of their subordinates, enjoys this privilege, simply for belonging to that arm.
That being the case, I submit that Section 24 of the Legislative Houses (Powers and Privileges) Act smacks of legislative arrogance, as it seeks to muzzle the right to freedom of speech and expression enshrined in Section 39 of the Constitution. Even though this right is not absolute (as it can be derogated from under Section 45(1) of the Constitution), I hasten to add that the circumstances for such derogation (‘the rights and freedoms of others, public safety, public order, public health’, etc.), do not exist in relation to Section 24 of the Legislative Houses, etc., Act. This is because, in my view, whatever rights legislators may have to their reputation enures to them ex officio, i.e., by virtue of their status as such, which status (as members of one of the three arms of Government), they share co-equally with the members of the other two arms of government, as aforesaid.
CONCLUSION
I submit that it is self-serving conceit for the National Assembly to shield itself from criticism in a way that violates the right to equal protection of the law under Article 3(2) of the African Charter on Human & Peoples Rights. To the extent that Sec. 24 of the Legislative Houses (Powers & Privileges) Act purports to do that, I submit that it is not reasonably justifiable in a democratic society as to be considered a derogation from the fundamental right to freedom of speech guaranteed under Section 39 of the 1999 Constitution. Accordingly, in my view, it is ultra vires, invalid, null and void.
Abubakar Sani