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| Ayo Fayose |
THE freezing account of the Ekiti State
governor, Mr. Ayodele Fayose by the Economic and Financial Crimes Commission
(EFCC) has continued to generate controversies among the legal luminaries with a
majority aligning with the agency’s decision to freeze his accounts if
substantially seen to have been used in aiding diversion of public funds.
Unanimously, they agreed that the anti-graft
agency has a right to investigate a sitting governor irrespective of the
protection by immunity clause as provided in Section 308 of the 1999
Constitution of the Federal Republic of Nigeria, as amended.
Emphatically, they agreed that immunity does
not stop a governor from being investigated, but there was no consensus on
whether a governor’s account can be frozen...
However, taking a queue from the Supreme Court
case of Fawehinmi v IGP (2002), which was instituted by the
plaintiff against Asiwaju Bola Tinubu; a sitting governor then, the apex in a
leading judgment delivered by Justice S.O. Uwaifo, JSC ruled that a governor can
be investigated while in office, and held inter
alia;
“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. I shall give three possible instances.
Suppose it is alleged that a governor, in the course of driving his personal
car, recklessly ran over a man, killing him; he sends the car to a workshop for
the repairs of the dented or damaged part or parts. Or that he used a pistol to
shoot a man dead and threw the gun into a nearby bush.
“Or that he stole public money and kept it in
a particular bank or used it to acquire property. Now, if the police became
aware, could it be suggested in an open and democratic society like ours that
they would be precluded by section 308 from investigating to know the identity
of the man killed, the cause of death from autopsy report, the owner of the car
taken to the workshop and if there is any evidence from the inspection of the
car that it hit an object recently, more particularly a human being; or to take
steps to recover the gun and test for ballistic evidence; and generally to take
statements from eye witnesses of either incident of killing. The Police clearly
have a duty under Section 4 of the Police Act to do all they can to investigate
and preserve whatever evidence is available…
Reacting to the development, former President
of the Nigerian Bar Association (NBA), Dr Olisa Agbakoba (SAN) opined that while
immunity does not stop criminal investigation against a sitting governor, EFCC’s
right to freeze a sitting governor’s (Fayose) account is dicey and will be left
to the courts to determine.
“It is
doubtful, however, if freezing account is within the scope of investigation. I
think not. I think it is a case to be tested in the courts,” Agbakoba said.
For Chief Emeka Ngige (SAN), the action taken
by the anti-graft agency against Fayose was within its scope stating
emphatically that EFCC did not err.
“The EFCC has the power to freeze the account
of any person suspected to be involved in the commission of a crime. This power
is not restricted to accounts of any person enjoying immunity – be him a
governor or president.
“The immunity offered by Section 308 of the
Constitution is limited to arrest and prosecution. It does not cover
investigation of crime. Interim freezing of a bank account involved in
suspicious activity like money laundering is neither illegal nor unlawful”,
Ngige said.
According to George Oguntade the commission (EFCC)
was right to freeze the account. He referred to Section 34 (1) of the EFCC Act saying
that it empowers the commission to freeze such an account “if satisfied that
the money in the account of a person is made through the commission of an
offence.”
“On the issue of whether the bank account of a
sitting governor can be frozen, given the provisions of section 308 of the 1999
Constitution (as amended), the answer is clearly in the affirmative.
“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.
“The Supreme Court further held that ‘criminal
investigation’ is totally different from ‘criminal proceedings’ in respect of
which a governor enjoyed immunity under section 308 of the Constitution.
“So, whilst a criminal charge cannot be
preferred against a sitting governor, there is nothing that prevents the EFCC
from investigating a sitting governor and to freeze his account in the course
of doing so upon obtaining the requisite court order,” Oguntade said.
Similarly, Mr. Jubril (SAN) reportedly said a governor can be
investigated and his account frozen, adding that there is “nothing illegal and
unconstitutional about it if the condition precedent is followed.”
Explaining further, another prominent legal
luminary, Mr. Ike Ofuokwu said that the immunity provided by the constitution
did not extend it to investigation.
“If it is in a bid to trace stolen funds, I am
of the firm opinion that the EFCC can freeze the account where the stolen funds
are traced to. The constitution did not confer immunity from
investigation. Hence, I respectfully submit that immunity from prosecution
does not confer on anybody whatsoever immunity from investigation”, Ofuokwu
said.
The EFCC had alleged that it traced large sums
of fund linked to the missing and diverted funds under investigation particularly
through the office of the National Security Adviser (NSA) under Col. Sambo
Dasuki (rtd).
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