Following the Economic and Financial Crimes Commission’s (EFCCC) freezing of Governor Ayodele Fayose’s personal Zenith Bank account in June 2016, Governor Fayose developed sneeze reflex. Many Nigerians have been asking questions. And there have been many answers. But the more you look, the less you see.
I have been looking too. I recently published my opinion about EFCC’s freezing of Governor Fayose’s account on social media, EFCC’s Freezing Action andGovernor Fayose’s Sneeze Reflex. This article expands my earlier thoughts. Here, I have briefly analyzed two Senior Advocates’ opinions—Femi Falana SAN and Mike Ozekhome SAN. While the former is on EFCC’s side, the latter is on Governor Fayose’s side.
What does the Nigerian Constitution say about immunity?
The 1999 Constitution of the Federal Republic of Nigeria (as amended) gives immunity to four public-office holders. These public-office holders are the President, Vice President, Governor, and Deputy Governor. This is provided under section 308(1)(a) of the 1999 Constitution. The section says no civil or criminal proceedings shall be instituted or continued against any of these persons while in office.
Does the Constitution intend that any person who holds any of the four public offices above should remain untouched at all times and in all situations until he or she leaves office?
By granting immunity to the four public offices above, the Constitution seeks to protect the persons occupying these offices from the distractions that any civil or criminal suits instituted against them may create. This is because we need our public-office holders to focus on the work they are elected for, not defending charges.
But the Constitution does not intend that immunity shields impunity or criminality. This is why a law-enforcement agency can investigate any person who enjoys immunity if the agency reasonably suspects that the person has committed a crime.
Section 308(1)(a) states that no civil or criminal proceedings shall be instituted or continued against any of these persons while in office.
Does “civil or criminal proceedings” under section 308(1)(a) not include investigation by a law-enforcement agency?
No. Civil or criminal proceedings doesn’t include investigation. ‘Proceedings’ means a matter before a court. The Longman Dictionary of Law, 8th Edition, defines ‘proceedings’ to mean the systematic conducting of business before a court. Investigation is not a proceedings. It’s not a matter before a court. Investigation is an administrative process by a law-enforcement agency. This is different from bringing a criminal action against a person. A person who enjoys immunity can be investigated.
After concluding its investigation, can EFCC arrest or prosecute Governor Fayose?
EFCC does not have the power to arrest or prosecute Governor Fayose after concluding its investigation. EFCC can only arrest or prosecute Governor Fayose after his tenure expires. This is because section 308(1)(b) prohibits any person or body from arresting or imprisoning a public-office holder covered by immunity. Since EFCC has neither attempted to arrest nor imprison Governor Fayose. So I don’t think section 308(1)(b) applies to Governor Fayose’s case, at least for now.
What if the Federal High Court (or any superior court in the country) issues a process on Governor Fayose compelling him to appear in court to answer EFCC’s the allegations against him?
No court has the power to issue any process requiring or compelling any public-office holder who has immunity to appear before it. Section 308(1)(c) prohibits courts from doing so.
And I am not aware that any court in the country has issued any process on Governor Fayose, requiring or compelling him to appear before it.
Does EFCC have the power to freeze Governor Fayose’s bank account?
The answer is no. EFCC has no power to freeze Governor Fayose’s bank account–not even with a court order to that effect.
The misinterpretation of section 34 of the EFCC Act by many is understandable. Read alone, the section empowers EFCC to freeze a person’s bank account after obtaining a court order. Based on this provision, EFCC’s action may be reasonably seen as lawful.
But the provision of section 34 of the EFCC Act does not stand alone. Flip back the pages of the Act to the beginning of Part V. Section 34 is subsumed under this part. Part V is headed Forfeiture of asset of persons arrested for offences under this Act (emphasis supplied). The use of the verb ‘arrested’ nails the issue. Section 34 applies to persons who have already been arrested by EFCC. So the section cannot apply to a Governor who has been prohibited from arrest under section 308 of the 1999 Constitution (as amended).
Even in EFCC’s defense of its action in the media, EFCC didn’t claim that the Federal High Court (or any other court for that matter) authorized the freezing order it issued on Zenith Bank.
The freezing order neither has the blessing of the EFCC Act itself nor the authority of the court. EFCC’s action is a subversion of the rule of law.
So discussing EFCC’s failure to obtain an exparteorder to freeze Governor Fayose’s account would be going too far. It doesn’t arise. The power to freeze the account of any person must be exercised in accordance with the letters of the law. Not only has EFCC failed to follow the procedure in the EFCC Act, but has also failed to appreciate the effect of the heading under Part V of the EFCC Act. That heading limits EFCC’s power to freeze accounts to matters involving a person who has been arrested. In effect, EFCC’s order on Zenith Bank only has the law of force, not the force of law.
But with divergent opinions on what the position of the law is, should be, and ought to be, it is becoming increasingly difficult to separate the force of law from law of force.
Femi Falana SAN and Mike Ozekhome SAN’s positions on EFCC’s action
I don’t completely agree with Falana SAN and Mike Ozekhome’s positions on EFCC’s freezing of Governor Fayose’s account. Though Femi Falana SAN’s arguments are strong, they are not all valid. And Mike Ozekhome SAN’s argument is valid, but weak.
In Femi Falana’s article, The Limit of Gov. Fayose’s Legal Immunity, he stated that Governor Fayose does not enjoy immunity from investigation with respect to his criminal involvement in treasonable conduct and corrupt practices. I agree with this position. Section 308 of the 1999 Constitution (as amended) does not shield an immune person from investigation. The Supreme Court decision in Gani Fawehinmi v Inspector General of Police[1]has since nailed this issue. In that case, the Supreme Court decided that a person protected under section 308 of the 1999 Constitution can be investigated by the police for an alleged crime or offence. First, the Supreme Court reasoned that the evidence discovered in the course of investigation may be useful to legislature who may decide to trigger impeachment. Second, the Supreme Court also reasoned that the evidence discovered may be useful to the law-enforcement agency for prosecution of the incumbent governor after his or her tenure in office.[2]
But Falana SAN got it wrong when he relied on section 28 of the EFCC Act to support his argument that EFCC’s freezing of Governor Fayose’s account without a court order was lawful. Section 28 does not apply to Governor Fayose. Section 28 only applies “where a person is arrestedfor an offence under [the] Act” (emphasis supplied). Governor Fayose has neither been arrested nor can he be arrested by virtue of section 308 of the 1999 Constitution (as amended). So section 28 of the EFCC Act is completely out.
One part of Falana SAN’s opinion that I find interesting is his argument that “immunity cannot be pleaded or invoked to cover electoral fraud” thus “elected governors are served with court processes and dragged to court to respond to allegations of electoral malpractice.” To buttress his point, Falana SAN relied on Kayode Eso JSC’s dictum in Obih v Mbakwe[3]on the need to ensure that immunity does not become impunity:
“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.”[4]
Falana SAN then argues that Governor Fayose’s case should be treated in the same way. According to Falana SAN, based on the findings of the Panel of Inquiry following the 2015 governorship election in Ekiti State, Governor Fayose’s (alleged) involvement in rigging the election and in other criminal allegations against him should be treated as impunity. But is it right to conclude that Governor Fayose’s alleged impunity has “watered down” his immunity under section 308 of the 1999 Constitution (as amended)?
Mike Ozekhome SAN says no. Ozekohome SAN argues that election petitions are sue generis. And because election petitions are in a class of their own, election petitions are neither civil nor criminal in nature. I agree with this.
But Ozekhome SAN’s argument that the provisions of the EFCC Act contradicts section 308 of the 1999 Constitution (as amended) and for this reason rendered null and void by virtue of section 1(3) of the 1999 Constitution (as amended) is based on a wrong premise. The premise is that section 34 of the EFCC Act empowers EFCC to freeze the bank account of a person under immunity. As I pointed out above, section 34 of the EFCC Act only applies to arrested persons. Since a serving President, Vice President, Governor, or Deputy Governor cannot be arrested under section 308 of the 1999 Constitution (as amended), section 34 of the EFCC Act does not conflict with the Constitution. So section 1(3) which makes the Constitution supreme to all other conflicting laws need not be bothered.
And Ozekhome SAN’s remark that section 308 provides absolute immunity is not a safe conclusion to be drawn from that section. Section 308 does not even make itself absolute. This is because section 308(2) provides two exceptions to the general rule of immunity. One, section 308(1) does not apply to civil proceedings against a person under immunity in his or her official capacity or to civil or criminal proceedings involving a person under immunity as a nominal party.
Any closing remarks?
EFCC has come of age. It should learn to always respect the rule of law. While I commend EFCC for its renewed fight against corruption, EFCC must learn to follow due process, no matter how big the fish is (or seems). The Nigerian Constitution guarantees that suspects and defendants are presumed innocent until proven guilty. Governor Fayose must be presumed innocent. It is not EFCC’s job to pronounce guilt on any person it suspects. EFCC should do its own part by doing a clean and complete job as a law-enforcement agency. The courts would do theirs as adjudicators. Both EFCC and Governor Fayose must avoid the temptations of media trials.
