Submission, Says Ozekhome
Olakiitan Victor in Ado Ekiti
A Senior Advocate of Nigeria (SAN), Mr. Mike Ozekhome, has said the human rights activist , Mr. Femi Falana, was wrong on his position that the Nigerian constitution cannot guarantee absolute immunity against criminal prosecution for governors, deputy-governors, president and vice-president in the country.
Falana had, during a paper entitled: The Limits of Immunity Clause’, he delivered at the sixth birthday of the Edo State’s Secretary to Government (SSG), Professor Julius Ihonvbere, said that the money Laundering Act and Economic and Financial Crimes Commission (EFCC) Act as well as the international criminal court laws do not give absolute immunity to governor Fayose against criminal prosecution, adding that the EFCC was toeing a legitimate path by freezing the governor’s accounts and thereafter obtain an court order against his bank.
But Ozekhome said Falana goofed on these areas and defended his position accordingly.
The senior advocate who heads governor Fayose’s legal team against the EFCC at the Federal High Court, Ado-Ekiti, spoke to journalists yesterday in Ado-Ekiti, saying: “Falana made three points on the matter and I totally disagree with him. He said that you can institute a legal process against governors because they are also sued during election petitions.
“And I disagree with him on that because election petitions are generic, they are generic because they are in a class of their own. They are a hybrid, neither civil or criminal procedures. That is why it is the constitution itself that gives the right for a governor to be sued when they are challenging his mandate, it is not the lower laws like an Act of parliament like EFCC.
“EFCC is an act of parliament which is millions of miles lower than the provisions of the constitution. And any provision from the EFCC Act or money laundeiring Act which is inconsistent with the provision of the constitution is null and void by nature of section 1,
sub-section 3 of the same 1999 Constitution, “ he said.
Arguing further, he said: “It is the same constitution in section 308 that says that when it comes to civil or criminal procedure, you can never sue the governor and such should not be entertained in any court of law.
“Contrary to Falana’s argurment, that immunity is not absolute, it is totally absolute.
“In the case of the IG versus Gani Fawehinmi which he cited, the Supreme Court said that the governor can be investigated, it however said that you would have to wait till he vacates his office before you move any court process against him. That was the decision of that court.”
“Falana also said that the Money Laundering Act can also apply against a sitting governor, that is wrong. The Money Laundering Act is an act of the parliament which is as low as the EFCC Act and the two of them must bow down to the Kabiyesi (Lord) of our laws which is the 1999 constitution (as amended in 2011) And that constitution in its section 308 says that whether under the money laundering Act or the EFCC Act, you cannot move against Fayose or any other governor, vice-president or President or deputy-governor.
“The third point by Falana that immunity is not total has been debunked because section 308 of the constitution overrides all the Acts of parliament such as the Money Laundering and EFCC Act. He also said that governors of Nigeria are not immune from the procedures of the international criminal court, of course that is outside the jurisdiction of Nigeria.
“So, none of all the arguments Falana has canvassed therefore can show that immunity can be watered down.