- You cannot use one illegality to address another illegality, or can you?
Governor Fayose versus EFCC/FG: A Citizen’s Perspective
By Maxwell Adeyemi Adeleye
On Monday 20th 2016, the Governor of Ekiti State, Mr. Ayo Fayose alerted the world that his personal bank account domicile at Zenith Bank Nigeria PLC has been frozen on the order of the Economic and Financial Crimes Commission (EFCC).
The 55 years old politician accused President Muhamadu Buhari of using the instrumentalities of the law to fight him for daring to criticize his government.
The Governor however kicked against the action of the EFCC as he claimed that such move contravenes the provisions of section 308 of the Nigerian constitution which granted him an immunity against being tried for any civil or criminal offense.
This contentious issue has generated a lot of hues and cries in the media. The issue has divided Nigerians. Some opined that the action of the EFCC was legal while some argued that it was illegal. However, my personal view is stated as thus:
1. EFCC Act 2004.
Section 34 (1) of the EFCC Act with the heading: “Freezing order on banks or other other financial institutions”, provides as follows:
“Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act and or any of the enactments specified under section 7 (2) (a)-(f) of this Act, apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account.”
Going by the provisions of section 34 of the EFCC Act, EFCC acted ultravires. No record from Zenith Bank, the EFCC and the media that a court of law granted the EFCC an ex-parte order to freeze the personal bank account of Governor Ayo Fayose. Thus, the whole action of the EFCC, to me, contravenes the provisions of section 34 of the EFCC Act.
2. The Immunity Clause:
This is enshrined in Section 308 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the provisions are reproduced verbatim below:
308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –
(a) no civil or criminal proceedings in court of law shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
(3) This section applies to a person holding the office of President or Vice President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.
i. Going by the provisions of section 308 of the constitution, Immunity does not stop a Deputy Governor, Governor, Vice-President and President from being investigated by law enforcement agencies.
ii. However, no civil or criminal proceedings can be instituted against the aforementioned persons.
iii. As opined by a Lagos based Lawyer and Human Rights Activist, Ebun Olu Adegboruwa, it is also my belief that an ex-parte order on any civil or criminal case that involve the persons of the beneficiaries of the immunity clause in section 308 of the constitution is illegal.
iv. It is my belief that the action of EFCC is illegal because any ex-parter order against the persons (Dep. Governor, Governor, V.P and President) that section 308 (1)a of the constitution exempted from personally being sued at any court of law for any civil or criminal matter. The law says: “No Civil or criminal proceedings in court of law shall be instituted or continued against a person to whom this section applies during his period of office”.
v. Since the case under investigation is criminally embedded and the ex-patre order (be it interim or what ever) from court would bear the name of (take for instance), Ayo Fayose, the Governor of Ekiti State, I want to say expressly that such action contravenes the provision of section 308 of the constitution.
vi. The frozen bank account at Zenith Bank belong to Ayo Fayose, Governor, Ekiti State. An ex-partre ( court) order against the personal bank account of Ayo Fayose is against Ayo Fayose and the section 308 (1)a of the constitution.
vii. It is my belief that EFCC did not seek for any court order to freeze Governor Ayo Fayose’s personal bank account because the organization apparently knew no court would grant such an order hence the resort to illegality.
viii. I want to state expressly that I am in support of the war against corruption of the Buhari led federal government but such war must be pursued within the ambit of the laws. Any crusade we want to undertake must be done with all due respect to the laws of Nigeria. The laws were created to guide our modicum of operations therefore they (the laws) must be sanctified and respected.
ix. Lastly, I am appealing to the international community and human rights groups to rise up and protect the constitution of Nigeria from being trampled upon by institutions created under the law. Precedence that would boomerang in future must be avoided for the sake of the innocent generation yet unborn.
Adeleye writes from Magodo, Lagos.
Tel: 08184397228 (SMS ONLY).