The Monday Discourse Arrested Immunity!

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The current travail of the Ekiti State Governor Aodele Fayose is clearly another test of the nation’s constitution and federalism. Shola Oyeyipo and Segun James write
The news of the freezing of personal accounts of the Ekiti State Governor, Mr. Ayodele Fayose, by the Economic and Financial Crimes Commission (EFCC) has since hitting the airwaves unsettled and divided the political space. While some think it is unconstitutional for the EFCC to have swooped on a sitting governor despite his immunity, those in support of the action of the anti-graft agency reckon the EFCC was scapegoating with the Ekiti State governor in its fight against corruption.
Unfortunately, for the government of the day, whose mystique is believed to be fast vanishing, the action against Fayose, to some, has further confirmed insinuations that the Muhammadu Buhari administration is gradually becoming dictatorial. But those who find excuse for the government allude to the fact that since elements of corruption has been established against the governor, he still could be prosecuted, his immunity notwithstanding.
 
Falana vs Fayose
Since the issue came up last week, there have been series of arguments from notable Nigerian lawyers, who discussed the matter from different points of views. For instance, human rights lawyer, Mr. Femi Falana (SAN), who led the pack and in support of the EFCC maintained his position that the defence of Fayose that his election was sponsored by Zenith Bank Plc was unacceptable. To him, it is shallow and a heinous crime for which he is liable to be prosecuted despite being a sitting governor, who enjoys immunity.
According to Falana, in a press statement issued last Friday, the alleged funding of Fayose’s election contravenes the Electoral Act and the Money Laundering Act.
“The Ekiti State Governor, Mr. Ayo Fayose discovered that he could not invoke the immunity conferred on him by section 308 of the Constitution to stop the EFCC from investigating the criminal diversion of N1.2 billion, which has been traced to his account. In denying the serious allegation made by the Economic and Financial Crimes Commission (EFCC) to the effect that the stolen fund emanated from the Office of the National Security Adviser, Mr. Fayose said it was contributed to his campaign fund by Zenith Bank Plc and some unnamed friends. In his characteristic loquacious manner, the governor has threatened to name other people, who also contributed to his political campaign.
“In a sharp denial of Mr. Fayose’s allegation, the management of Zenith Bank Pls disclosed that when the money was paid into the account it was reported to the relevant financial regulatory authorities in line with the provisions of the Laundering Act 2011 (as amended). In a desperate move to ward off the allegations, the embattled governor appears to have resolved not to go down alone. To divert attention from the heinous crime of the diversion of public fund, Mr. Fayose is likely to carry out his threat of implicating some people, who allegedly funded his governorship election.
“However, assuming without conceding that the bulk of the fund spent on his campaign was donated by Zenith Bank Plc, the governor has unwittingly justified the investigation and freezing of his account by the EFCC. He has also confirmed that the humongous sum of money was transported from Abuja to Akure in contravention of the Money Laundering Act. By his utterances, Mr. Fayose is simply saying that the management of Zenith bank stole depositors’ money and laundered it to fund his political campaign contrary to section 90 of the Electoral Act, 2010 as amended.
“On the basis of his own confessional statement, Governor Fayose and the management of the bank are liable to be prosecuted for electoral fraud, money laundering and criminal diversion of depositors’ fund to the tune of N1.2 billion. Therefore, the decision of the EFCC to freeze Mr. Fayose’s account is perfectly in order,” Falana stated.
But a contrary view was expressed by legal practitioner and former National Secretary of the Labour Party (PL), Mr. Kayode Ajulo, who said the EFCC action is by every standard an act of illegality.
Arguing his position, Ajulo said: “I am not a fan of Ayodele Fayose, the Governor of Ekiti State, as I detest his style of governance, lust to court troubles and the limitless controversies that surround his personality, yet I received with shock, the news report that EFCC has frozen his personal bank account.
“This indeed came as a shock considering the personality involved, a sitting governor that enjoys immunity till the termination of his office as governor of a state in Nigeria. It is the law that to freeze an account, there must be an order of court for the attachment of the bank account as the Section 34 (1) of the EFCC Act stipulates how such freezing order can be obtained. This requires the commission, through filling court process, to apply to the court ex-parte for such order.
“By the provision of Section 308(1)(a) of our Constitution as amended, no suit can be instituted against Ayodele Fayose and or any Nigerian governor in any court in Nigeria. Therefore, no process of court can be issued, signed or served, against Ayodele Fayose in his personal capacity, whereas the bank account in question is his personal account as such in his personal name.
“Moreover, Sections 26, 27, 28, 29, 30, 31, 32, 33 and 34 of the EFCC Act, established a process to be followed that is, a suspect must have been arrested for property to be attached and or his account to be frozen. However, section 308 of 1999 Constitution, exempted Ayodele Fayose from those, who could be arrested and his bank account, particularly his personal account and therefore cannot be frozen.
“It behooves all right thinking Nigerians and law-abiding individuals and corporate entities to ensure and insist that EFCC acts according to the law of the land and adheres to best international standard and practice,” said Ajulo, whose position succinctly captures the argument of all other legal luminaries, who disagreed with the process embarked upon by the EFCC.
While he commended the ongoing war against corruption, Ajulo warned that the “EFCC is gradually turning into an unchecked tyrannical monster under the guise of fighting corruption”, stressing that “If indeed Ayodele Fayose has a case to answer, the case of Bola Ahmed Tinubu vs Gani Fawehinmi is apt and locus classicus.
“Therefore, EFCC should lift the attachment on Ayodele Fayose’s property, go ahead to investigate him, after which, it is either they bring the report of his misconduct before his State House of Assembly for his removal via impeachment process or wait for Fayose to complete his term of office before commencing his prosecution. That’s the law and it must be followed.”
In the views of the Special Assistant to Fayose on Public Communications and New Media, Mr. Lere Olayinka, Falana’s maintaining that the action of the EFCC is in order is simply because the respectable lawyer is nursing a governorship ambition. “Falana is only deceiving the EFCC on Governor Ayodele Fayose’s matter because of his ambition to contest the Ekiti State governorship election in 2018, thinking that he can achieve what he used the EFCC to achieve against Governor Fayose in 2006, ten years after.”
He castigated Falana for supporting EFCC’s freezing of Fayose’s bank account that the commission was empowered to freeze Nigerians’ bank accounts and secure court orders later, stating that “Even though this comment from Femi Falana ought to have been ignored like we have always done because his hypocrisy has become so legendary that he should no longer be taken seriously by sane minds”.
Describing Falana as a disgrace to the legal profession, he added: “Falana is only deceiving the EFCC on Fayose’s matter because of his ambition to contest the Ekiti State governorship election in 2018, thinking that he can achieve what he used the EFCC to achieve against Fayose in 2006, ten years after. It was shameful that a lawyer of Falana’s standing could say that EFCC was empowered to freeze Nigerians’ bank accounts and secure court orders later.”
 
A Flashback on Nyako
At the peak of the rivalry between the then ruling Peoples Democratic Party and the merger that gave birth to the APC, former Adamawa State governor, Alhaji Murtala Nyako, became a major target that must be silenced on the basis of his antagonism to the government of the day and his account was subsequently frozen by the EFCC in manners similar to Fayose’s case presently.
The Adamawa State government’s bank account was frozen as a precautionary measure to safeguard the state treasury amidst alleged looting by top officials of the Adamawa State government, a development that led to the arrest and questioning of key officials, including the Secretary to the State Government (SSG), the State Commissioner for Finance, former Commissioner for Local Government, the Accountant General of the State and the Permanent Secretary, Ministry for Local Government.
The EFCC move came amidst impeachment plots against Nyako by the PDP-led members of the state’s House of Assembly, which accused Mr. Nyako and the Deputy Governor, Bala Ngillari, of siphoning funds from the state’s treasury running into billions of naira. The EFCC said its investigation was triggered by petitions alleging massive looting of the treasury by the governor and his cronies through an illegal department called Special Programme and Project Units, SPPU, which engaged in over invoicing and inflation of contract.
While Nyako was then impeached on the grounds of mismanaging the funds of the state, a Yola division of the Court of Appeal last week Thursday declared the impeachment of Murtala Nyako, former governor of Adamawa state, as “unconstitutional, null and void”.
Though the house removed him after an indictment over alleged gross misconduct on July 16, 2014, in a unanimous judgment by the five justices, the appellate court disagreed with the impeachment on the grounds that it was not done in accordance with the provisions of the law, as the governor was not served the impeachment notice personally.
Also, last week, when a Federal High Court judge sitting in Abuja, Justice Gabriel Kolawole, ruled in a fundamental rights enforcement suit in the case of Nyako’s son, Senator Abdul-Aziz Nyako, he reprimanded the anti-graft agency for carrying out actions outside its statutory powers and held that the EFCC lacks the power to freeze the suspect’s bank accounts without obtaining court order and consequently made an order for the commission to pay 12.5 million Naira to serve as a warning.
Since 2014, Nyako and his son, whose account was also frozen, had taken the legal option, challenging the anti-graft agency’s actions. And while the Fayose story was developing, a Federal High Court sitting in Abuja last week Wednesday ordered the EFCC to pay the sum of N12.5m to Nyako’s son for freezing his bank account without a valid court order.
 
Let the Debate Begin…
The preponderance of opinions, both for and against the development has further exposed the gradual division amongst the Nigerian people, both on the matter and the government of the day. According to Alhaji Kunle Akangbe, “if it is legal for Fayose’s account to be frozen, so be it! He plays dirty politics. Immunity does not say that you cannot be investigated. For the fact that he is not the key person being investigated in the arms deal, but only a fraction of the money was traced to him through Mr. Musiliu Obanikoro, then, the EFCC is not wrong to have investigated by tracing where the money went.”
Mr. Ibrahim Olawepo accused the governor of pettiness, when he circulated pictures of some Zenith Bank officials of kneeling to beg him for forgiveness. What forgiveness? I don’t see a bank of the status of Zenith sending its officers to kneel down for anybody. Why? Is the bank the EFCC? Fayose is childish.”
Olawepo said it was because the governor was desperate that he resorted to such desperate action, which he insisted, was belittling of a person of the status of the governor.
Mr. John Ogunduyile, a civil servant in Ekiti State and an ardent supporter of the governor until recently, said he became disappointed with the governor, when he disgraced his mother that she was on pampers because of her age.
“Fayose disgraced his own mother. When you ridicule your own mother the way Fayose did, then such fate as this befalls you. Fayose is reaping from the evil seed he sowed. He has spent his entire time abusing the president’s old age as if it is a crime to be old. The governor deserves what he is getting. I have no sympathy for him. Let him account for how he got the money. Period!”
The same feeling was shared by Mr. Owolabi Abiola, another civil servant from the state. “Fayose is evil. If he can say there is no money in Ekiti State, yet he has such money in his personal account, he should be questioned.  What business has he been doing that fetched such profit? His salary since he assumed office is not up to that. So, let him account for the money.
“He owes the state workers over nine month’s salary. He has not paid the September 2014 and that year’s leave bonus. Put together, the amount totals nine month’s salary arrears. That man is wicked. He should tell Nigerians the source of such money; and if he cannot account for it, the money should be confiscated and used to pay our salaries. We are suffering!”  
For Mr. John Oki, a civil servant in Bayelsa State, such fate as befallen Fayose should be visited on other governors across the country. He lamented that while most of the governors steal the commonwealth of the people, they hypocritically blame the federal government for their woeful performance. 
“Fayose should be used to serve as example for the thieves parading themselves as honourable governors. They are not honourable at all. They are a disgrace to the office they hold. Fayose should be impeached immediately.”