ECOWAS Court dismisses application for removal of parliamentary immunity on MP

Abuja, Nigeria (PANA) - ECOWAS Court has dismissed all reliefs sought by a Malian, Kandioura Gakou, alleging the violation of his right to equality before the law for the failure of the Republic of Mali to lift the immunity of a member of parliament to pave the way for her prosecution by the national courts on a criminal matter.

In its judgment in suit no ECW/CCJ/APP/15/20, delivered by Justice Dupe Atoki, the judge rapporteur in the case, the Court upheld the submission of the Malian government that the immunity cannot be lifted under Article 62 of the country’s constitution while Honorable Aissata Toure remained a member of parliament except in cases of flagrante delicto which was not applicable in this case.

“The totality of the import of Article 62 of the Constitution of the Respondent is that the prosecution of a member of parliament for a criminal offence either in or out of session is not permissible except in situations of acts committed in flagrante delicto, an authorised prosecution, a final conviction all of which must be authorised by the National Assembly,” the Court said.

It added: ‘the Court finds that the facts as pleaded by the Applicant cannot be situated within any of these exceptions."

Justice Atoki said that the Applicant did not canvass that any section of the Constitution was inconsistent with any human rights instruments ratified by the Republic of Mali and consequently, the Constitution remained sacrosanct.

The Court further held that the alleged blockage of the right of the Applicant to be heard is not a state that exists in perpetuity as the immunity becomes inoperative upon the expiry of her tenure and that the prosecution of the alleged crime can be activated since there is not effluxion of time in criminal matters.

The Court also dismissed Mr Gakou’s claim of violation of his right to be heard before a competent, independent and impartial tribunal as the Applicant did not substantiate Mali’s failure in its obligation under Article 62 of its Constitution to remove the parliamentary immunity of Hon Aissata Toure to pave way for her prosecution.

Suit no ECW/CCJ/APP/15/20 was filed on February 28, 2020 by Mariam Diawara, lawyer to Kandioura Gakou on allegations of violation of his rights to equality before the law, and right to be heard before a competent and independent tribunal.

In the initiating application, Mr Gakou claimed he was introduced to Hon. Aissata Toure, a Member of Mali’s National Assembly, with whom he developed a relationship and later lent her his land title with which she secured a loan for a contract worth 40,000,000 FCFA.

He further claimed that with his title document, Hon Toure obtained an initial loan of 15 million FCFA from a bank which she paid back and then asked him to lend her another land title document on the grounds that the bank required it which he obliged.

He added that with both land documents, Hon Toure secured another loan of 20 million FCFA from the bank without paying back the loan which resulted in an eviction order he received from a bailiff at the request of the bank.

He averred that he filed a complaint alleging acts of fraud and illegal deprivation of property before the public prosecutor at a Tribunal of First Instance and the magistrate wrote a letter, dated October 22, 2021, requesting the assistance of the public prosecutor to withdraw her parliamentary immunity to enable her face criminal charges.

Mr Gakou contended that Hon Toure ought to have been prosecuted when the National Assembly was out of session and described the inaction of the Bureau of the National Assembly to examine the letter of request for withdrawal of parliamentary immunity of Hon. Toure since 2014 as unjustified and a violation of his rights.

He urged the Court to declare the Malian government liable for the violation of his rights, end the violations and pay 300,000,000 FCFA as compensation.

On its part, the Malian government argued that Mr Gakou’s relationship with Hon. Toure was unclear as it was odd to naively dispossess his two land titles to a lady who “begged” for it.

It also submitted that carrying out an investigation and indictment of Hon Toure would be acting contrary to the provisions of Article 62 of its Constitution as long as she remained a Member of Parliament, which “guarantees immunity from abusive or vexacious criminal proceedings instituted against parliamentarians on account of acts unrelated to the exercise of their duties in office”.

The State further argued that the judicial arm of government cannot compel the legislative arm to withdraw the parliamentary immunity of a Member of Parliament that such request to withdraw or not is within the discretion of the competence of the National Assembly upon a request addressed to the Speaker.

It affirmed that all Malians were equal before the law and that the Applicant did not suffer any discrimination as he did not show proof of other citizens whose request for removal of parliamentary immunity were granted and consequently urged the Court to dismiss the case.

-0- PANA VAO 25June2021