Femi Falana
As controversy continue to surround the freezing of the bank
account of outspoken Ekiti State Governor, Ayodele Fayose by the
Economic and Financial Crimes Commission (EFCC) over an alleged fraud
and money laundering against the governor, reknown human rights
activist Femi Falana (SAN) who contested and lost the governorship
election of Ekiti State in 2007, has opened a can of worms in a new
aricle titled "Fayose’s immunity has limits."
Read it in full below;
Sometime in 2004, Governor Ayo Fayose was reported by The News
magazine to have stolen N1.2 billion from the coffers of Ekiti State
government. The brutal killings in the state were also traced to a
killer squad funded by the governor. Embarrassed by the publication Mr.
Fayose sued the magazine at the high court holden at Ado Ekiti. Our law
firm defended the magazine and pleaded justification. At the trial of
the case the allegations in the publication were proved beyond any
shadow of doubt. In dismissing the suit the trial judge said that Mr.
Fayose had no reputation worthy of protection by any court.
The allegation of the looting of the treasury of the state was
investigated by the EFCC which proceeded to charge Mr. Fayose at the
Federal High Court. The Police also charged him with the murder of Tunde
Omojola at the Ekiti state high court. Both cases were pending in court
when he contested and ‘won’ the Ekiti State governorship election.
Shortly thereafter, a young army officer, Captain Sagir Koli exposed the
involvement of some armed personnel led by General Aliyu Momoh in the
coup which led to the ‘re-election’ of Governor Fayose. All the criminal
suspects initially denied their involvement in the criminal enterprise.
But when confronted with the tape recording of the plot to manipulate
the election Mr. Fayose admitted that he took part in the coup.
Based on the expose by Captain Koli the authorities of the Nigerian
Army set up a panel of enquiry to investigate the role of the armed
soldiers in the violent subversion of the democratic process in Ekiti
State. The panel conducted the inquiry and identified the military
officers and soldiers who participated in the coup which led to the
pyrrhic victory of Mr. Ayo Fayose. The report of the panel was submitted
to the Chief of Army Staff who promised to act on it by implementing
its recommendations.
The indicted military officers and armed soldiers have since been
flushed out of the Nigerian army. Some of them were also referred to the
EFCC for further investigation over allegations of financial inducement
and corrupt practices. The findings of the army panel have been
corroborated by Mr. Fayose’s campaign manager, Dr. T. K. Aluko who
addressed several press conferences wherein he gave graphic details of
the illegal deployment of armed troops and criminal diversion of public
funds for the governorship election allegedly won by Mr. Fayose. In
particular, he revealed that the fund for the election was ferried to
Ado Ekiti by a former minister who is currently on self exile in the
United States.
While not challenging the allegation by the EFCC that the sum of
N1.3 billion has been traced to his personal account Mr. Fayose has
attempted to hide under the immunity clause to shield himself from
investigation. Contrary to the governor’s claim he does not enjoy
immunity from investigation with respect to his criminal involvement in
treasonable conduct and corrupt practices. It is trite law that all the
public officers protected by Section 308 of the Constitution can be
investigated for corruption and other criminal offences. InChief Gani
Fawehinmi vs. Inspector General of Police (2002) 23 WRN 1 the Supreme
Court held:
“That a person protected under section 308 of the 1999
Constitution, going by its provisions, can be investigated by the police
for an alleged crime or offence is, in my view, beyond dispute. To hold
otherwise is to create a monstrous situation whose manifestation may
not be fully appreciated until illustrated…The evidence may be useful
for impeachment purposes if the House of Assembly may have need of it.
It may no doubt be used for prosecution of the said incumbent Governor
after he has left office. But to do nothing under the pretext that a
Governor cannot be investigated is a disservice to the society.”
To ensure that the investigation of the public officers covered by
the immunity clause is not compromised by the executive the Chief
Justice of Nigeria is empowered by section 52 of the ICPC Act to appoint
an Independent Counsel (who shall be a legal practitioner of not less
than 15 years standing) to investigate any allegation of corruption
against the President, Vice President Governor or Deputy Governor. The
ICPC is enjoined to fully cooperate with such independent counsel and
provide all facilities necessary for such independent counsel to carry
out his functions. At the end of the investigation the Independent
Counsel is required to make a report of the findings to the National
Assembly in the case of the President or Vice President and to the
relevant House of Assembly of a State in the case of the Governor or
Deputy Governor.
Since there is no immunity for impunity as far as electoral
malfeasance is concerned the investigation by the EFCC is in order. The
senior lawyers who have questioned the freezing of Mr. Fayose’s account
on the ground that the EFCC did not obtain a court order have not read
section 28 of the EFCC Act which provides that “where a person is
arrested for an offence under this Act, the Commission shall immediately
trace and attach all the assets and properties of the person acquired
as a result of such economic or financial crime and shall thereafter
cause to be obtained an interim attachment order from the Court”.
The law permits the EFCC to freeze an account or attach a property of a
criminal suspect and proceed thereafter to obtain an ex parte order from
the appropriate court.
I am not unaware that 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.
However, in order to give effect and validity to the equality of the
rights of all contestants in a presidential or governorship elections it
has been held by the Supreme Court that immunity clause cannot be
invoked in election petitions. Otherwise, public officers covered by the
immunity clause may take advantage of their positions to rig elections
and thereby sabotage the democratic process. The rationale for
suspending the operation of the immunity clause during the hearing of
election petition was explained by the late Justice Kayode Eso in Obih
Vs. Mbakwe (1984) All NLR 134 at 148 when he said:
“With respect, to extend the immunity to cover the governors
from being legally challenged when seeking a second term will spell
injustice. I am conscious of the fact that in my interpretation of
section 267 of the Constitution, I am giving that provision a narrow
interpretation. This is deliberate for in my view, in the interpretation
of the Constitution, care should be taken not to diminish from the
justice of the matter, this is not a case of a judge engaging in
legislative process. ”
Similarly, in Turaki v. Dalhaltu(2003) 38 WRN 54 at 168 the Court of Appeal (per Oguntade JCA (as he then was) had this to say:
“There is no doubt that a Governor by the force of section 308
of the 1999 Constitution is immuned from civil and criminal proceedings
for his personal acts but in proceedings in an election petition or
seeking to enforce rights appertaining to or arising from national
elections, no Governor in my view enjoys or can claim immunity. In an
election matter, as in this case, the right of the Governor to remain
such Governor is in issue. If a Governor were to be considered immuned
from court proceedings, that would create the position where a sitting
Governor would be able to flout election laws and regulations to the
detriment of other person contesting with him. This will make a nonsense
of the election process and be against the spirit of our national
Constitution which in its tenor provides for a free and fair election.”
In the case of the Alliance for Democracy v. Peter Ayodele Fayose
(No 1) (2004) 26 WRN 34 the Respondent had challenged the issuance of a
subpoena on him on the ground that Section 308 has conferred immunity on
him as a governor. While dismissing the objection the Court of Appeal
(per Muri Okunola JCA) held:
“…The provisions of section 308 of the 1999 Constitution of the
Federal Republic of Nigeria are not applicable to confer immunity on a
State Governor in an election petition involving his election to
preclude the issuance of subpoena on him. Or put in another way: the
immunity provided by the provisions of section 308 of the Constitution
of the Federal Republic of Nigeria 1999 on a State Governor is put in
abeyance when his election is being disputed before an Election Tribunal
as to make him amenable to being compelled by a subpoena to tender
document(s) or give evidence before the Election Tribunal.”
In view of the fact that the effect of section 308 of the
Constitution has been watered down Governor Fayose cannot invoke the
immunity clause to shield himself from investigation. Since the offences
of fraud, treason and criminal diversion of public funds were
allegedly committed in connection with the 2014 governorship election in
Ekiti state Mr. Fayose who was a candidate of the PDP at the material
time is liable to be investigated. And if he is indicted Mr. Fayose
ought to be prosecuted by the EFCC since the immunity of a governor is
put in abeyance when the legitimacy of his election is in dispute.
Finally, in his desperate bid to divert public attention from the
ongoing investigation of the criminal diversion of public funds Mr.
Fayose has attempted to link me with his indictment by the Nigerian Army
and the EFCC. Notwithstanding that the allegation is completely
baseless I fully support the investigations. I do not need to instigate
the anti graft agencies to enquire into the activities of a serial
treasury looter. Having admitted his involvement in the coup which
occurred in Ekiti State which culminated in his emergence as governor
Mr. Fayose ought to be prosecuted for treason which arose from the
electoral malfeasance.
About the Author:
Femi Falana (SAN) is a Nigerian Lawyer and human rights activist.
He contested and lost the governorship election of Ekiti State in 2007
on the platform of National Conscience Party, a party he served as
National Chairman in 2011.
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