Opinions & Analysis

C. Don Adinuba

1. Developmentalism and Nigeria’s Governance

 By C. Don Adinuba

Like hundreds of thousands of Nigerians, I supported erstwhile Central Bank governor Chukwuma Soludo, an outstanding economist and practical man of ideas, in his quest to become the Anambra State governor in 2010 because of his grand vision to create an African version of Dubai and Taiwan. Soludo’s vision represented a remarkable deviation in Nigerian politics which has for decades been preoccupied with divisive issues, rather than development.

The world will not take Africa seriously until we begin to develop. Mohammed Al Maktoum, the modernizing ruler of Dubai, in his book entitled Flashes of Thought, notes: “our region and its peoples are in dire need of a successful model in the (African) world—one that gives hope and proves that focusing on growth is better than focusing on wars; that launching projects is far more useful than launching rockets”. Unlike many Africans who follow the Kwame Nkrumah maxim “seek you first the political kingdom and every other thing will be added unto you”, a parody of a scriptural passage, Al Maktoum subscribes to the primacy of economic development. “We believe that a state with economic power also reaps the benefits of political power”, he writes.

One public officer whose decoration next Sunday in Lagos with the annual Zik Leadership Prize will be well received across the country is Governor Willie Obiano of Anambra State because he is a practitioner of what social scientists now call developmentalism. Obiano has demonstrated that any serious government in Nigeria can achieve a lot even with less resource, especially in these economically perilous times when some 28 out of 36 states in the country have become virtually bankrupt, unable to pay staff salaries and meet basic contractual obligations. In Anambra which receives a fraction of what oil-bearing states get monthly from the federation account, the government is taking on new ambitious projects and programmes with far-reaching impacts.

On May 17, 2016, Obiano presented cheques for N367m to the Anglican and Catholic churches in the state for the management of their schools, describing education as the first line of charge of the state. Truly, students from the state have been excelling in all external examinations in Nigeria, representing the country in educational contests. Some $3.2 billion has been invested in agriculture in the last two years, with the state expected in the next three years to become Nigeria’s foremost rice producer. Anambra has since last December been exporting bitter leaf and ugu vegetables to Europe which has stringent standards for food imports. Franca Awhefeda, a Nigerian research student in international management at Roehampton University in London, has just published a racy article on how Anambra State is now used as an example by academics in the United Kingdom that Africans can practise Just In Time (JIT), a management concept developed in the 1970s by leading Japanese corporations like Toyota which practically abolishes inventories because of the almost 100% efficiency in time and resource utilisation.  

Just last week the government announced a new development initiative which will see each of the 177 communities in the state have a new project worth N20m, with the communities deciding the projects themselves. Anambra is still building roads and bridges across the state, despite the economic downturn in the country, so it is no surprise that states like neighbouring Kogi have been sending delegations there to understudy its effective resource management. While it is tempting to ascribe the performance to the governor’s background in accounting, auditing and banking, it is more compelling to trace it to Obiano’s embrace of developmentalism; after all, there are state governments headed by accomplished accountants and bankers with a backlog of workers’ salaries. Developmentalism explains Obiano’s choice of technocrats who used to work at the World Bank, IMF and leading commercial banks to be on the cabinet but also in key institutions like the state investment agency.

This governance style may not have earned plaudits from professional politicians but it has served the public well. Developmentalism, closely associated with the rapid development of Southeast Asia, is generally defined as a policy committed to the socioeconomic transformation of a society so that its members can have radically improved living standards within a short period. There is little politicking which is the bane of poor societies. Sacrilege is committed daily in the name of politics in underdeveloped nations, as we have seen in the management of $15b security funds under President Goodluck Jonathan which was unconscionably shared to a handful of politicians. Professional politicians who have no capacity for policy or public service keep the nation in a permanent campaign mode, so that they will be relevant and make a fortune for themselves. I have seen well meaning top public officers derail because professional politicians convinced them to start campaigning for a second term while less than one year in office.

Babatunde Fashola was a huge success as Lagos State governor because he was not obsessed with raw politics. How many times did anyone see him talk about “Yoruba this” or “Muslim that”? He got involved in politicking only during the campaign period.

It is a mark of vacuity in our national politics that even ethnic and sectional organisations like Afenifere, Ohaneze and Arewa People’s Congress which claim that their raison d’etre is the well being of their peoples have no development agendas which address the challenges of hunger, poverty and ignorance among their peoples. None has a blueprint for job creation, security, agricultural production, industrial growth, quality education or anything in their respective regions.

One, therefore, notes with gladness that more Nigerians are turning to developmentalism. At a lecture last March 17 to mark the inauguration of the Centre for Financial Journalism in Lagos, Akpan Hogan Ekpo, an economics professor and director general of the West African Institute for Financial and Economic Management, recommended, though rather tangentially, the developmental state ideology to the President Buhari administration, citing the example of Ethiopia which is fast becoming a model in development for African nations. An article on Ethiopia’s development model by two foreign doctoral candidates at the University of Cambridge which was posted on Nigerian online platforms last week happily received enthusiastic reviews. Developmentalists in public office like Obiano and Fashola have shown that for Nigeria it is still morning yet on creation day.

Adinuba is head of Discovery Public Affairs Consulting.

2. EFCC-FAYOSE SAGA:How Governor Fayose Lost His Immunity

Femi Falana (SAN)

By Femi Falana, SAN

Sometime in 2004, Governor Ayo Fayose was reported by The News magazine to have stolen  N1.2 billion from the coffers of Ekiti State government. The brutal killings in the state were also traced to a killer squad funded by the governor.

Embarrassed by the publication Mr. Fayose sued the magazine at the high court holden at Ado Ekiti. Our law firm defended the magazine and pleaded justification. At the trial of the case the allegations in the publication were proved beyond any shadow of doubt...
In dismissing the suit the trial judge said that Mr. Fayose had no reputation worthy of protection by any court. The allegation of the looting of the treasury of the state was investigated by the EFCC which proceeded to charge Mr. Fayose at the Federal High Court. The Police also charged him with the murder of Tunde Omojola at the Ekiti state high court. Both cases were pending in court when he contested and ‘won’ the Ekiti State governorship election. Shortly thereafter, a young army officer, Captain Sagir Koli exposed the involvement of some armed personnel led by General Aliyu Momoh in the coup which led to the ‘re election’ of Governor Fayose. All the criminal suspects initially denied their involvement in the criminal enterprise. But when confronted with the tape recording of the plot to manipulate the election Mr. Fayose admitted that he took part in the coup.

Based on the expose by Captain Koli the authorities of the Nigerian Army set up a panel of enquiry to investigate the role of the armed soldiers in the violent subversion of the democratic process in Ekiti State. The panel conducted the inquiry and identified the military officers and soldiers who participated in the coup which led to the pyrrhic victory of Mr. Ayo Fayose. The report of the panel was submitted to the Chief of Army Staff who promised to act on it by implementing its recommendations.

The indicted military officers and armed soldiers have since been flushed out of the Nigerian army. Some of them were also referred to the EFCC for further investigation over allegations of financial inducement and corrupt practices. The findings of the army panel have been corroborated by Mr. Fayose’s campaign manager, Dr. T. K. Aluko who addressed several press conferences wherein he gave graphic details of the illegal deployment of armed troops and criminal diversion of public funds for the governorship election allegedly won by Mr. Fayose. In particular, he revealed that the fund for the election was ferried to Ado Ekiti by a former minister who is currently on self exile in the United States.

While not challenging the allegation by the EFCC that the sum of N1.3 billion has been traced to his personal account Mr. Fayose has attempted to hide under the immunity clause to shield himself from investigation. Contrary to the governor’s claim he does not enjoy immunity from investigation with respect to his criminal involvement in treasonable conduct and corrupt practices. It is trite law that all the public officers protected by Section 308 of the Constitution can be investigated for corruption and other criminal offences. In Chief Gani Fawehinmi vs. Inspector General of Police (2002) 23 WRN 1 the Supreme Court held:

“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…The evidence may be useful for impeachment purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under the pretext that a Governor cannot be investigated is a disservice to the society.”

To ensure that the investigation of the public officers covered by the immunity clause is not compromised by the executive the Chief Justice of Nigeria is empowered by section 52 of the ICPC Act to appoint an Independent Counsel (who shall be a legal practitioner of not less than 15 years standing) to investigate any allegation of corruption against the President, Vice President Governor or Deputy Governor. The ICPC is enjoined to fully cooperate with such independent counsel and provide all facilities necessary for such independent counsel to carry out his functions. At the end of the investigation the Independent Counsel is required to make a report of the findings to the National Assembly in the case of the President or Vice President and to the relevant House of Assembly of a State in the case of the Governor or Deputy Governor.
Since there is no immunity for impunity as far as electoral malfeasance is concerned the investigation by the EFCC is in order. The senior lawyers who have questioned the freezing of Mr. Fayose’s account on the ground that the EFCC did not obtain a court order have not read section 28 of the EFCC Act which provides that “where a person is arrested for an offence under this Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such economic or financial crime and shall thereafter cause to be obtained an interim attachment order from the Court”. The law permits the EFCC to freeze an account or attach a property of a criminal suspect and proceed thereafter to obtain an ex parte order from the appropriate court.

I am not unaware that by the strict interpretation of section 308 of the Constitution no court process can be issued or served on a governor. But because immunity cannot be pleaded or invoked to cover electoral fraud, elected governors are served with court processes and dragged to court to respond to allegations of electoral malpractice. However, in order to give effect and validity to the equality of the rights of all contestants in a presidential or governorship elections it has been held by the Supreme Court that immunity clause cannot be invoked in election petitions. Otherwise, public officers covered by the immunity clause may take advantage of their positions to rig elections and thereby sabotage the democratic process. The rationale for suspending the operation of the immunity clause during the hearing of election petition was explained by the late Justice Kayode Eso in Obih Vs. Mbakwe (1984) All NLR 134 at 148 when he said:

“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. ”

Similarly, in Turaki v. Dalhaltu(2003) 38 WRN 54 at 168 the Court of Appeal (per Oguntade JCA (as he then was) had this to say:

“There is no doubt that a Governor by the force of section 308 of the 1999 Constitution is immuned from civil and criminal proceedings for his personal acts but in proceedings in an election petition or seeking to enforce rights appertaining to or arising from national elections, no Governor in my view enjoys or can claim immunity. In an election matter, as in this case, the right of the Governor to remain such Governor is in issue. If a Governor were to be considered immuned from court proceedings, that would create the position where a sitting Governor would be able to flout election laws and regulations to the detriment of other person contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution which in its tenor provides for a free and fair election.”
In the case of the Alliance for Democracy v. Peter Ayodele Fayose (No 1) (2004) 26 WRN 34 the Respondent had challenged the issuance of a subpoena on him on the ground that Section 308 has conferred immunity on him as a governor. While dismissing the objection the Court of Appeal (per Muri Okunola JCA) held:

“…The provisions of section 308 of the 1999 Constitution of the Federal Republic of Nigeria are  not applicable to confer immunity on a State Governor in an election petition involving his election to preclude the issuance of subpoena on him. Or put in another way: the immunity provided by the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is put in abeyance when his election is being disputed before an Election Tribunal as to make him amenable to being compelled by a subpoena to tender document(s) or give evidence before the Election Tribunal.”

In view of the fact that the effect of section 308 of the Constitution has been watered down Governor Fayose cannot invoke the immunity clause to shield himself from investigation. Since the offences of fraud, treason and criminal diversion of public funds were allegedly committed in connection with the 2014 governorship election in Ekiti state Mr. Fayose who was a candidate of the PDP at the material time is liable to be investigated. And if he is indicted Mr. Fayose ought to be prosecuted by the EFCC since the immunity of a governor is put in abeyance when the legitimacy of his election is in dispute.

Finally, in his desperate bid to divert public attention from the ongoing investigation of the criminal diversion of public funds Mr. Fayose has attempted to link me with his indictment by the Nigerian Army and the EFCC. Notwithstanding that the allegation is completely baseless I fully support the investigations. I do not need to instigate the anti graft agencies to enquire into the activities of a serial treasury looter. Having admitted his involvement in the coup which occurred in Ekiti State which culminated in his emergence as governor Mr. Fayose ought to be prosecuted for treason which arose from the electoral malfeasance.

Femi Falana is a Lagos based lawyer and Senior Advocate of Nigeria, SAN

3. STATE OF THE NATION: A Reflection on Bayelsa State

C. Don Adinuba

By C. Don Adinuba

BAYELSA State is a quintessence of how crisis of social values is at the root of the economic underperformance of societies and nations. Speaking on television networks in the first week of this month, Governor Serieka Dickson ascribed his inability to pay the workforce in almost half a year to humongous debts accumulated by his predecessors. Many governors borrow massively from banks and issue to the accountant general of the federation an irrevocable standing payment order (ISPO) to deduct the loans from source and pay creditors. “I did not see what they did with all the monies they borrowed”, Dickson bemoaned. Though he did not reveal his predecessors who put Bayelsa in peonage, the list may include Diepreye Alamieyeseigha...

 If the list does indeed include Alamieyeseigha, then Dickson must accept responsibility for the state’s economic mess. Only last April, he organized a high profile state executive council meeting in honour of Alamieyeseigha, attended by former President Goodluck Jonathan and Alamieyesiegha’s widow, where he proudly announced the renaming of the state’s banquet hall and the road linking the state capital of Yenagoa and Alamieyeseigha’s hometown of Amassoma in Southern Ijaw Local Government Area for the late former governor. He also announced that a mausoleum would be built for Alamieyesiegha in ijaw Heroes Park. At the requiem service on April 19 for the former governor on April 19 who was jailed for plundering the state (not Nigeria), Dickson called him repeatedly “a true hero”.

 The governor general of the Ijaw nation, as Alamieyeseigha was fondly called, was one Nigerian public officer whose looting is fairly well documented. In 2010, seven years after he was impeached, the British government returned to Bayelsa State a whopping five million pounds stashed away in the United Kingdom by Alamieyesiegha who had been arrested in September, 2012, at Heathrow Airport for money laundering. Alamieyeseigha had purchased five properties in London, kept one million pounds in raw cash in his London home and left $2.7m in an account with the Royal Bank of Scotland. He also had houses in the United States and South Africa—all acquired while he was governor of one of Nigeria’s poorest states. While being tried in London in 2005, he escaped to Nigeria where he hoped that the constitutional immunity conferred on him as a governor would save him.

 Many Africans do not seem to appreciate the correlation between high ethical standards and economic development. A society which allows its people to indulge in massive corruption cannot develop economically. In 1958, the distinguished American sociologist, Edward Banfied, called attention to this reality through his seminal book, The Moral Basis of a Backward Society. Banfield did a study of southern Italy which is called the Third World of Western Europe because of its economic backwardness, unlike northern Italy which is as developed as any other part of the First World. The cultural values in southern Italy enable criminal organisations like the Mafia to reign supreme in cities like Sicily and Naples.

 This great work by Banfield practically faded from the radar screen of many western scholars until in 1997 when Francis Fukuyama published his second book entitled Trust: the Social Virtues and the Creation of Prosperity in which the polyvalent intellectual argues that the difference between poor and rich societies is the difference in the levels of social capital. By social capital, Fukuyama means the stock of values like honesty, loyalty, integrity and trust. He calls societies with a substantial stock of these values high-trust ones and societies where the reverse is the case low-trust. The examples Fukuyama cites for explaining why many nations in the Third World cannot build big businesses which outlive the founders and their families and consequently contribute significantly to national economic well being are arresting, but beyond the scope of this essay.

 As a new millennium was about to dawn, Harvard University organized in 1999 a symposium to interrogate the powerful place of cultural values in societal and national development. Papers delivered at the symposium were published the following year in a book edited by Lawrence Harrison and Samuel Huntington entitled Culture Matters: How Values Shape Human Progress. In a penetrating introduction, Huntington, author of the magnus opus,The Clash of Civilisations and the Remaking of World Order, provides a glimpse into why Southeast Asian nations like South Korea and Singapore have recorded fantastic progress, despite the absence of natural resources, but not African countries like Ghana, in spite of the superabundance of resources like cocoa and gold. Writes Huntington: “South Koreans valued thrift, education, organisation, and discipline. Ghanaians had different values. In short, cultures count”.

 Despite its low population and relatively sparse population, Bayelsa receives one of the largest allocations from the federation account every month because it is a leading oil-producing state. Still, it owes workers for several months. In contrast, a state like Anambra which receives almost an infinitesimal amount from the federation account and has a large population and a huge workforce, not only pays workers before month end but even increases salaries, employs more workers and continues with the construction of a large number of roads and state of the art aesthetic bridges. Why wouldn’t Bayelsa be in financial doldrums when Gov Dickson insists on holding up Alamieyeseighe as a role model in a state with personages like Larry Koinyan, Gabriel Okara and Mrs T. K. Agari, among numerous others who can hold their ground anywhere in the world intellectually and morally? It should come to no one as a surprise that the incidences of contract padding and ghost workers in Bayelsa have been proved to be the worst in the whole country since Dickson, compelled by the ongoing economic crunch, began to check several leakages in the state’s treasury.

 The terrible crisis of values is not peculiar to Bayelsa. A major public housing estate in Abuja is named for Ibrahim Abacha for dying on a presidential jet on January 17, 1996, while frolicking with his girlfriend. The Kano State stadium is named for Sani Abacha, a pathological buccaneer, with the millions of dollars he looted still being returned to Nigeria, 18 years after his death. In Anambra, the military regime changed Achalla Road in the capital to Prince Arthur Eze Avenue, after Eze had received $110m and a huge naira component from the African development Bank for rural water supply and rural electrification in old Anambra State and the building of an industrial development centre in Awka but did practically nothing. Eze took over the chairmanship of Premier Breweries, the biggest industry in Anambra State and third largest brewery in Nigeria, and ran it aground. He became chairman of Orient Bank and as he was about to ground it, Paul Ogwuma, as the Central Bank of Nigeria governor, not only removed him but banned him from ever being on the board of any bank. In typical Nigerian fashion, President Jonathan awarded him a high national honour. About two months ago, the University of Nigeria at Nsukka bestowed an honorary doctorate on him.

 It is a shame that most Nigerian public officers do not know the close relationship between values and economic development. Worse, our universities are steeped in a profound moral cesspool.

Adinuba is head of Discovery Public Affairs Consulting.


4.

Useful Legal Tips on the Abia State Guber imbroglio...
By Prof Obararaeri

The Federal High Court (FHC) that ruled in favour of Dr Samson Ogah was not an Election Petition Tribunal. It is not stricto sensu bound by the ELECTORAL ACT as amended.

The FHC was invited to entertain a pre-election dispute between Dr Ogah and HE Dr. Okezie Ikpeazu concerning eligibility of Dr Ikpeazu and based on PDP GUIDELINES for conduct of gubernatorial primary.

The FHC on the documentary evidence before it found as a fact that based on PDP Guidelines for the conduct of the said gubernatorial primaries, that Dr Ikpeazu was ineligible to be cleared and or contest the said guber primary election because he failed to meet the criteria stipulated therein relating to proper standing on tax payment.

The FHC was invited to interpret the implication of non-compliance with the said guidelines and it viewed that the guidelines constitute an irrevocable agreement between the aspirants interse (amongst themselves) and the party. Any aspirant falling short of the irreducible minimum is ineligible to contest the said primary. Dr Ikpeazu having breached the guidelines was ineligible to contest and as such deemed in law not to have garnered lawful votes.

Dr Ogah who came second was thus declared the winner.

The court found as a fact that Dr Ikpeazu was in default of some ground rules and conditions precedent for eligibility to contest and consequently visited the infraction with the severe legal consequences in favour of Dr Ogah.

INEC claimed to have obeyed the order of the FHC that certificate of return be issued to Dr Ogah immediately.

The FHC and State High Court in Osisioma are of coordinate jurisdiction. None can overule the other. When two judgements of courts of competent jurisdiction exist, it lends itself to administrative discretion. This means that the person at whom these two judgements are directed is at liberty to obey one and disregard the other.

The live question is whether a FHC, not being an Election Petition Tribunal, in the exercise of its pre-hearing jurisdiction, is bound by the reliefs which an Election Petition Tribunal is precluded from granting?

The issuance of COR to Dr Ogah by INEC legally nullifies the earlier COR issued to Dr Ikpeazu and should terminate his stint as Governor of Abia State. Dr Ogah having not been sworn in despite being issued a valid and subsisting COR cannot be Governor or begin to discharge the duties of that office.

The Deputy Governor of Abia State is the defacto Acting Governor of Abia State and all actions of government should be carried out by him until the resolution of the impasse. Note that if Dr Ogah eventually gets sworn in, he is stuck with the present Deputy Governor.

The two day public holidays declared in Abia are neither here nor there. With specific reference to the likelihood of the said public holiday preventing Dr Ogah from being sworn in, it must be underscored that no law suggests that a Governor cannot be sworn in on a public holiday including Saturdays and Sundays. Abia State has entered legal sudden death penalty shootout.
 Prof Obararaeri writes from Abia State.


5.

Carl Umegboro

SENATE FORGERY: AGF’S SUMMON, EKWEREMADU’S PETITION TO UN, EU, OTHERS, DISCREDIT NIGERIA LAWMAKERS

By Carl Umegboro

THE Senate has summoned the Attorney-General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami to appear before the Senate Committee on Judiciary, Human Rights and Legal Matters tomorrow, over his resolute position to prosecute Senate President, Bukola Saraki,  his deputy, Ekweremadu and four others for allegedly forging the Senate rules.

In the same manner, Ekweremadu issued petitions to the United Nations (UN), European Union (EU) and governments of the United States and United Kingdom, alleging attempts by the government of President Muhammadu Buhari to truncate Nigeria’s democracy particularly emasculating the Parliament. The United States Congress and European Union (EU) Parliament were copied.

In his petition, titled “Re:Trumped up Charges Against the Presiding Officers of the Eighth Senate: Nigerian Democracy is in Grave Danger”, the petitioner alleged political vendetta calculated to intimidate the legislature by Buhari-led executive arm of government and therefore called on the international community to intervene maintaining that the trial was obviously politically motivated, a witch-hunt, barefaced intimidation and an attempt to emasculate the legislature collectively and individually He further alleged that he and the three others including the Senate President were not given fair hearing.

However, it is pertinent to note that the actions taken by the Attorney-General of the Federation clearly fell within the scope of his official duties and terms of reference. Essentially, the petitioner should be informed that avoiding the court of law over allegations is not only barbaric but leaves much to be desired of lawmakers in a democratic society.

Interestingly, one of the cardinal principles of law which any court of law must evidently be subjected to in the course of its business is “audi alteram patem” which is literarily to hear the other side. This implies that arraigning political opponents based on frivolous charges cannot end up successfully since it cannot be decided ex parte but with the both parties on ground to present their allegations and defences.

What is the contention all about if the accused persons truly forged the Senate order rules which led to their emergence as principal officers of the upper chamber, or on the other hand, they were being incarcerated innocently with frivolous charges aimed at mockery? The court of law is not the property of the executive arm of government and must follow judicial precedence in arriving at decisions. Perhaps, to the Sarakis and Ekweremadus; forgery in the Senate by Senators is not a crime but mere senate affairs. Unfortunately, that’s a misconception.

If this is the case, the position is indeed an insult to the sensibilities of the Nigerians languishing in various prisons over similar offences. As a matter of fact, these allegations if proved beyond reasonable doubt should attract severe punishments to the perpetrators to serve as deterrence. This is on account that lawmakers cannot at the same time, be lawbreakers.

A critical question it poses for answers is if Saraki, Ekweremadu and associates in the Senate did not believe in the rule of law but positioned themselves as lawmakers, then who is the laws to be passed by them meant for; obviously the commoners that may not be able to write to the international communities.

Whatever be the case, the court of law allows the accused to defend himself and go scot-free if allegations failed to be clearly substantiated. The AGF dragging the matter to the court albeit may be borne out of political vendetta and to settle some personal scores should not be faulted. The reasonable step for the accused is to confidently appear and defend their actions if they strongly believed it was superiority squabbles or attempts of intimidations.

The AGF was earlier summoned and again re-summoned by the Senate to explain why he determinedly progressed in prosecuting its principal officers as if the office of the Attorney-General of the Federation is created against the downtrodden in the society alone. Rather than alleging threats by the federal government to scuttle the nation’s democracy, the Senate’s action points to a great threat to the country, sadly, this time not by Boko Haram, Niger-Delta Avengers or the Independent People republic of Biafra (IPOB).

Analogously, a Federal High Court sitting in Abuja on Monday ordered Gov. Okezie Ikpeazu of Abia state to vacate office over falsification of documents submitted prior to his emergence as the governor as challenged by one of his party’s aspirants in the primary election. Commendably, he has approached the Court of Appeal to challenge the ruling since he believed strongly the trial court erred in its judgment. This should be the reasonable strep for the indicted lawmakers rather than ridiculously whipping up sentiments locally and internationally. 

Interestingly, in the US, UK and other civilised nations, the indictments are sufficient for voluntary resignations from offices by the accused public officeholders. The comparative advantage is that every accused person is mandatorily subjected to a fair-hearing in the court of law and therefore no cause for alarm. Essentially, all criminal allegations must be proved beyond treasonable doubts as a standard of proof. Hence, the outcry is tantamount to political propaganda to divert attentions, and therefore should be condemned as absurd, disgraceful and ill-fated. Let the indicted lawmakers face their music.

Umegboro, Public Affairs Analyst is the Publisher, Pinnacle infoGallery BLOG. 

6. NDIGBO: Soft Power As A Desideratum

C. Don Adinuba

By C. Don Adinuba

JOSEPH S. Nye, Bill Clinton’s Assistant Defence Secretary who holds the preeminent position of the University Distinguished Service Professor at Harvard, is best remembered worldwide for coining the term, soft power, in the late 1980s in a seminal article in Foreign Affairs. Soft power is a theoretical framework which refers to the phenomenon of a state or country attracting or co-opting other nations and peoples to do its wishes without the use of force or money. The opposite is hard power, which President George W. Bush used enthusiastically in Iraq, earning him the reputation of a war monger. Reckless use of hard power pushes American opponents to terrorism against the United States and its allies.

Barak Obama, on the other hand, is a practitioner of soft power, which should not be confused with cowardice or pacifism. When the opportunity came for the United States to get rid of Osama bin Laden, Obama took out the foremost terrorist in a rather entertaining manner. It added to America’s global appeal...
Soft power is about wide-ranging and sustained charm offensive, it is about public diplomacy, it is about creating and building goodwill. Hence, the University of Manchester prides itself on producing more foreign prime ministers, presidents and heads of state than any other British institution.

A substantial number of Igbo political activists have yet to appreciate the value of soft power. Two instances will do here. Governor Willie Obiano of Anambra State was out of the country when the scores of people were massacred at Nimbo in Uzo Uwani Local Government Area of neighbouring Enugu State on April 25. But he quickly returned home on hearing of this act of man’s inhumanity to man. He was to explain that he cut short his trip to ensure that the massacre did not get to Anambra State and that a possible reprisal attack would not occur in his state, given the cultural and historical propinquity between the people of Ayamelum Local Government Area in his state and Uzo Uwani LGA in Enugu State who used to be in the same LGA until 1988. Satisfied that the situation was now under control, the governor advised Anambrarians not to molest any Fulani or Northerner in their midst and then called a meeting of Fulani herders who have been living in some 20 settlements around the state for decades and counselled them to remain peaceful and law abiding. He said that he was determined to make Anambra remain the safest state in the country, so that its development level can escalate.

As the chief security officer of the state, Obiano must protect the life and asset of everyone in the state, whether an indigene or not. The recent steps he took went a long way to secure the lives and assets of millions of his own people even in Northern Nigeria, many of whom are eminently successful tycoons, professors, corporate executives and professionals. But what he got in return was a sustained barrage of insults online from a handful of Igbo elements living in the United States. Presumably, the Igbo irredentists would have been satisfied if the governor had launched an anti-Fulani drive without minding the consequences for millions of Igbo people in the North who are vulnerable. 

Obiano’s experience is by no means different from that of Enugu State governor Ifeanyi Ugwuanyi who was pilloried by the same American-based activists. Erstwhile World Bank vice president Oby Ezekwesili last year described these activists as Internet thugs when she came under their scurrilous criticism for demanding that the Goodluck Jonathan administration get serious with rescuing the Chibok girls kidnapped by Boko Haram terrorists in April, 2014. The Internet activists’ anger with Ugwuanyi stemmed from the governor’s visit to President Muhammadu Buhari in Abuja two days after the Uzo Uwani killings. They would have been pleased if Ugwuanyi, rather than consult the commander in chief of the armed forces to discuss a grave security development, had stayed at home to engage in incendiary rhetoric.

Paranoia, hysteria and hate language have become the defining elements in contemporary Igbo “nationalism” by a handful of political activists in the United States who are obviously out of touch but often hubristically claim superior information. The activists provide oxygen to the elements in the so-called Indigenous People of Biafra (IPOB) but also to extremists at home. As Ohaneze, the socio-cultural organisation of the Igbo, was about to hold an emergency meeting on the Uzo Uwani killings, a group of nameless people calling themselves “concerned members of Ime Obi of Ohaneze”, gave to online publications what it called the communiqué of Ohaneze on the massacre. 

Mark you, this was an unsigned communiqué given out even before the meeting was held, and these online publications ran it as the authentic communiqué; this was unprofessional and misleading. As could be expected, the so-called communiqué written by some extremists without names has been serving as the Magna Carta of these American-based Igbo political activists. At the inauguration of the Association of Nigerian Authors in 1982, Chinua Achebe warned against the growing phenomenon of fanaticism in Nigeria, calling it a rabid beast. Achebe was a prognosticator, a seer.

The Igbo live outside their homeland more than any other group. Besides, they are what eminent Yale Law professor Amy Chua calls in World on Fire: 

How Exporting Free Market Democracy Breeds Ethnic hatred and Global Instability; a market-dominant minority because their highly competitive culture enables them to do well in a free market economy. Therefore, they need soft power, and not hard power. It is actually soft power which has endeared the United States to the world, resulting in Pax Americana or the Americanisation of the world. Soft power has caught on around the world, with China officially adopting it in 2011. China has since then been investing massively in African infrastructure and offering of credit facilities to African nations on far better terms than western nations. 

The soft power concept has had a revolutionary impact on management schools, leading to unprecedented interest in the idea of soft skills which emphasizes that organisational leaders possess such competencies or emotional intelligence and other behavioral qualities as being a team player; personality traits like trust and effective good communication are now considered more important than academic brilliance. In an article for a major academic journal, I trace the origin of soft power to Nicole Machiavelli who observes that it is good to have the power of a lion but dangerous to behave like a lion. As Wole Soyinka admonishes, a tiger does not proclaim its ‘tigritude’.

Thoughtful Igbo people can have a frank, honest conversation on the place of soft power in our affairs. 

As early as the 1960s, Peter Drucker, one of the greatest management gurus ever, declared that the world was entering a knowledge era. How prescient! Only last January, the World Economic Forum held the 2016 annual meeting in Davos, Switzerland, on the Fourth Industrial Revolution, which is about advanced knowledge and sophisticated skills. This is not an era when our vision can be defined by abrasive okada riders, bus conductors, motor park workers and other IPOB members as well as their rabble rousing supporters. We must return to the era of the Great Zik of Africa and engage in strategic thinking which brings forth rapid development 
Adinuba is head of Discovery Public Affairs Consulting

7. TAKING AWAY THE POWER TO ‘HIRE AND FIRE' WITHOUT REASON: The Aloysius V Diamond Bank's Case Revisited.

Kingsley Ughe

By Kingsley Ughe

A recent review of the National Industrial Court's decision in the case of Mr. Ebere Onyekachi Aloysius v Diamond Bank Plc. [2015] 58 N.L.L.R 92 has again brought to the fore arguments on the seeming inelastic jurisdiction that the National Industrial Court is (now) clothed with, no thanks to a 'sweeping' alteration to the nation's organic law. I refer to Mrs. Efe Etomi and Elvis Asia's co-authored piece on 'The Power of the National Industrial Court – A Review of ALOYSIUS v DIAMOND BANK' , published in THISDAY Law (pg. 11) of the 31st day of May 2016 issue.

In more specific terms, the quarrel here is with the NIC attempting to re-write labour law from a fairly settled prism of master-servant relationship wherein the former is endowed with the power to 'hire', and can/may simply terminate the latter, an 'hireling', for reason, or no reason at all...

The NIC, in Aloysius' case, will have none of that and was quite emphatic in declaring 'that the Court can now move away from the harsh and rigid common law posture of allowing an employer to terminate its employee for bad or no reason at all'. The Court was no less insistent in sounding a death knell on such practices in the following words: 'it is now contrary to international labour standard and international best practice and, therefore, unfair for an employer to terminate the employment of its employee without any reason or justifiable reason that is connected with the performance of the employee's work'. Considering that the NIC is a court with exclusive jurisdiction on labour and employment matters, and its decisions are, as at today, majorly not subject to appeal (except on sparingly enumerated matters stated in section 243 of the Constitution of the Federal Republic of Nigeria, 1999 – as amended ), the decision in Aloysius' has clearly earmarked a new horizon; indeed a new day, for the employee. A radical departure from the applicable principle of law in a master and servant relationship the common law developed, and by which the decisions from our courts (up to the apex court) before now have proceeded. An employee can no longer be lightly discarded without a reason, as this decision arguably paves way for job status guaranteeing security of employment. The jurisprudential basis is pithily expressed as staying in sync with the global position on employment relationship, easily summed up as "International Labour Standard" and "International Best Practice".

But the review under reference thought differently. As a takeoff point, and predominantly (in) several parts of the review, the commentators argue- rightly in my view- that the NIC cannot invoke a provision, which, they further posit, is to be determinative of the employment-related dispute before the court, but which did not form part of the case, nor was it raised by either of the parties, without first calling on (the) parties to address on the point. Each case on its own facts, the 'error of judgment' in the Aloysius' case, in my view, and sharing the commentators position on the point, is that the issue, at least from the body of the judgment, appeared to have been solely raised by the Court, without the parties addressing on same, even as the decision ultimately rested on the point. At least, on the court-formulated Issue No. 1, 'Whether or not the determination of the claimant's employment by the defendant is with reason, which is wrongful' , the court reviewed the position vis-à-vis the facts of the case, and concluded thus: " I further hold that the reason given by the defendant for determining the claimant's employment in the instant case, which is that his 'service was no longer required' is not a valid one connected with the capacity or conduct of the claimant's duties in the defendant bank. In addition, I hold that it is no longer conventional in this twenty 1st century labour law practice and in industrial relations for an employer to terminate the employment of its employee without any reason even in private employment."

Now, a community reading of select provisions of the establishment law, the National Industrial Court Act 2006 (specifically, sections 7(6), 13, 14 and 19 thereof) will lead to an inescapable inference: that the court is imbued with the power to grant remedies which, in its estimation, a party is entitled to in the (court's) concurrent administration of law and equity. The court is thus indubitably endowed with an overriding power to apply best labour practices across board, in its adjudicatory work. This is moreso as the NIC is enjoined, in its adjudicatory process, to always have due regard to good or international best practices in labour or industrial relations. The point, however, is that a decisive issue as the applicability of an International Labour Organisation (ILO)'s convention, or the position that termination without reason is contrary to International Labour Standard and International Best Practice, may arguably not be taken except (i) it is/was submitted as part of the claim before the court, or recorded to have been argued as a point of law in the course of cross-arguments on the final analysis of the case; or, (ii) where the foregoing is absent in a case before the court, then the court, in raising suo motu , should invite parties to address on it before a decision predicated on same is reached. Otherwise, a decision so reached may be successfully challenged on ground of lack of fair hearing, which, thoughtfully, is a specified subject matter appeal of NIC decisions.
Be the above as it may, this writer's point of departure from the review (under reference) is whether the NIC can exercise the power to apply an ILO convention under reference having not been domesticated into a local law. On this point, the commentators argue that the NIC was wrong to have applied an ILO Convention (the Termination of Employment Convention 1982 [No. 158]) which though ratified has not (yet) been enacted into law by the National Assembly.
There are two strands to this argument (in opposition), and both wickets are adequately served in an illuminating decision of the NIC on the point. I refer to Aero Contractors Co. of Nigeria Limited v. National Association of Aircrafts Pilots and Engineers (NAAPE) & ors (http://judgment.nicn.gov.ng/pdf.php?case_id=539 ). First is that arguments that a ratified ILO convention, not yet domesticated, is not available for enforcement is only tenable from the prism of the Supreme Court's decision in The Registered Trustees of National Association of Community Health Practitioners of Nigeria and 2 ors v. Medical and Health Workers Union of Nigeria [2008] 2NWLR [Pt. 1072] 575 where the apex court held that, in so far as an ILO Convention has not been enacted into law by the National Assembly, it has no force of law in Nigeria and so it cannot possibly apply; relying on section 12(1) of the 1999 Constitution and the case of Abacha v. Fawehinmi [2000] 4 SC (Pt.11)1.

However, with the coming into effect of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 , Section 254(C)(2) thereof contains a watershed provision; a ' veiled' suggestion that treaties relating to labour matters, once ratified, do not require domestication in application, or enforcement in labour matters.

S. 254(C) (2) speaks of applicability of ratified conventions, and the opening paragraph is carefully worded to read: 'Notwithstanding anything to the contrary in this constitution' , by necessary inference shutting out the proposition that an ILO convention can only become applicable if ratified and domesticated , in accordance with the provision in section 12 of the self-same Constitution. The point being that the NIC can apply provisions of ILO conventions which have been ratified even where these are yet to be enacted into law by the National Assembly as the provision of S. 254(C) (2) can only be constructively construed to mean superseding or overriding any other provision of the Constitution; the very context in which the decision in The Registered Trustees of National Association of Community Health Practitioners of Nigeria's case was handed down, long before the enactment of S. 254(C) (2).
But that is not all. The NIC, (per Hon. Justice B.B Kanyip) has further written to expound a most potent argument on section 7(6) of the NIC Act vis-a-vis Section 12(1) of the Constitution. For emphasis, Section 12 of the 1999 Constitution provides that " No treaty between the Federation and any other country shall, have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly." , whilst section 7(6) of the NIC Act is to the effect that: the Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.' On the argument of domesticating ratified treat(ies) to have force of law, the NIC (in the Aero Contractor's case) commendably espoused a proposition that the Constitution (Third Alteration) Act 2010, which inserted section 254C(1)(f) and (h) and especially (2) is the domestication demanded by 12 of the 1999 Constitution itself. The provision of section 7(6) of the NIC Act above has also been posited as meeting the said domestication requirement.
A significant matter here is that the NIC seems to be on a sure footing to apply "international best practice in labour, employment and industrial relation matters" and ensure "the application or interpretation of international standards" in its adjudicatory work. Such an approach is not brazen judicial law-making in the absence of express laws, or outmoded laws such as the extant 1970s-enacted Labour Act but evidently backed by express lettering in the intendment of the law-makers.

All said, the caveat is resoundingly apparent: employers and lawyers alike, beware. Terminating an employee' without a reason stated is no longer good law. Welcome to a new day, servant-master.

Ughe is a Legal Practitioner and a Management Strategist with ECULAW GROUPS.

 

8.  ELECTRICITY: Fashola Will Deliver The Goods

Babatunde Fashola (SAN)

A Response to Senator Shehu Sani

By Engr. Joseph Ibekwe

Senator Shehu Sani is a human rights campaigner and well meaning modernizer, but he is not always right on some fundamental issues. In fact, he needs to obtain basic information on some of these issues. Take electricity where he feels that the solution to the crisis which has bedeviled the sector perennially and has contributed significantly to the country’s development problem is the appointment of an electrical engineer as the Minister of Power. In other words, the lawmaker is of the opinion that Mr Babatunde Fashola, a Senior Advocate of Nigeria (SAN) whose sterling performance as the immediate past Lagos State governor is recognized far and near, is not the right person for the job because he is not an electrical engineer. Senator Sani is dead wrong...

It is clear that the senator is blissfully ignorant that it is not only electrical engineers who are power engineers. The first engineer in the electricity supply chain is the mechanical engineer. It is the mechanical engineer who generates power from gas, water, solar, wind or any other source like nuclear energy. Why doesn’t Senator Sani reckon with the mechanical engineer? It all has to do with the lawmaker’s profound lack of understanding of how the electricity business is conducted.

The truth is that a person does not need to be a power engineer to be a successful minister of power. What the power sector needs is a leader, and not a power engineer, whether an electrical or mechanical or electromechanical or even a mechanotronics engineer. Professor Bart Nnaji, easily Nigeria’s most successful minister of power ever, is not a power engineer. He is a robotics professor, one of the top three worldwide. Nnaji came into office in 2011 fully prepared because he had earlier served as the Special Adviser to the President on Power and Chairman of the Presidential Task Force on Power (PTFP). What is more, he had in 2002 built Nigeria’s first indigenous power station, and this was the 22-Megawatt Abuja Emergency Plant. He was in the process of completing the 140-MW Aba Power Project when he was called into government in 2010. All this experience helped him to hit the ground running as the power minister, but the public did not feel the impact till after some months. This is the nature of power supply chain.

Interestingly, when Fashola was appointed last October the Minister of Power, Works and Housing, Nnaji was over the moon because he knew that the erstwhile Lagos State governor has what it takes to reform the electricity sector. As Nnaji himself said repeatedly when he was a minister, Fashola demonstrated greater commitment to the development of the power sector than any other state governor. Not only did Nnaji get maximum cooperation from Fashola in the reform of electricity business and the rapid development of existing power infrastructure, any time he spoke on power, the then Lagos State governor offered uncanny insights. Take his speech at President Goodluck Jonathan’s launch on August 25, 2010, of the Road Map for Power Sector Reform at Eko Hotel in Lagos where the highly select audience gave him a long and thunderous ovation. The speech was so insightful that when President Jonathan began to speak, he spent considerable time praising Governor Fashola. Needless to add, Fashola, like Prof Nnaji, has got rich practical experience in the power sector. He initiated and completed a number of power development projects in Lagos, which are all doing very well to this day.   

To repeat the obvious, any person who will do well as Nigeria’s power minister need not be an engineer, but a reformer. Fashola is a reformer through and through. And he is aided in his new task by his rich experience as a distinguished lawyer. One of the first things he has done beautifully is the resolution of the problem which paralysed the takeoff of the Aba Power project, the biggest investment in the Southeast in years; the problem was deliberately created by the Jonathan government for purely private reasons. The Jonathan government stoutly refused to respect the 2005/6 agreement between Prof Nnaji’s Geometric Power Ltd and the Federal Government to build the Aba project and offer the company the right of first refusal in the event of the privatization of the Enugu Electricity Distribution Company (EEDC). The government rather handed over Aba business units during privatization in 2012 and 2013 to Interstate Electrics owned by a surrogate of the Jonathan government. With the resolution, Aba power will come on stream this year.

It is truly immoral for Senator Sani to blame Fashola for the country’s current electricity problem when misguided Ijaw militants are almost daily bombing gas pipelines which provide fuel to the country’s 23 thermal stations. Only Kainji, Shiroro and Jebba plants, all in Niger State, are hydro stations.  Fashola is already working on the development of energy mix, which makes plenty of strategic sense. Frankly, Senator Shani needs to do his homework before saying things in a public forum.

Fashola is very competent as power minister, and will certainly deliver the goods. He became a minister only last October, and I am not sure he has received any money yet from the 2016 budget. It is less challenging to be a star governor of Lagos State than to be a successful power minister. Fashola is no your regular Nigerian public officer.

 Engr Ibekwe lives in Port Harcourt, Rivers State.

9.  EFCC Has Power To Freeze The Account, Investigate A Serving Governor

By Kingsley Ughe

Kingsley Ughe

This question was answered emphatically in the affirmative by the Supreme Court of Nigeria in the celebrated case of Fawehinmi v. Inspector General of Police (2002) 7 NWLR (Pt.767) 606. The brief facts were that the late renowned human rights lawyer, Chief Gani Fawehinmi SAM SAN, by a letter dated 21st September, 1999 brought a criminal complaint against the former governor of Lagos State, Senator Bola Ahmed Tinubu, alleging grave criminal infractions and asked the police to investigate the allegations. Following the refusal by the police to accede to his request, Chief Gani Fawehinmi filed an originating summons on the 7th of October, 1999 at the Federal High Court, Lagos wherein he sought among others, an order of mandamus compelling the Inspector General of Police, the Commissioner of Police Lagos State and the Nigeria Police Force (respondents) to investigate his allegations. The suit was dismissed by the Federal High Court following a preliminary objection by the respondents on the ground that by virtue of the immunity provisions in Section 308 of the Constitution, Tinubu who had assumed office as the governor of Lagos State could not be investigated on the said allegations...

Dissatisfied, the appellant challenged the judgment at the Court of Appeal. In its judgment, the Appeal Court held that Section 308 of the Constitution does not protect a governor and the other persons covered by it from criminal investigation. However, an order of mandamus was refused. Still dissatisfied, Fawehinmi approached the Supreme Court on the issue of mandamus. The respondents (the police) on their part filed a cross appeal against the part of the judgment of the Court of Appeal which declared that immunity does not cover investigation.

Delivering the leading judgment of the seven man panel of the Supreme Court on Friday 10th day of May, 2002 on whether a governor can be investigated, Justice S.O. Uwaifo, J.S.C (as he then was), 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. 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 or for acquiring property, or of the property acquired? 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. The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available..."

In the instant case, does the freezing of the account of Governor Fayose fall within the investigative powers of the EFCC or is it illegal as declared by Fayose?

The Supreme Court had correctly stated the position in Fawehinmi's case supra that "criminal proceedings" as envisaged by Section 308 (1) (a) of the Constitution will only arise when a charge is brought. In rejecting the respondents' argument that investigation was part of criminal proceedings, the Apex Court cited with approval the decision in the American case of Post v. United States (1896) 161. U.S. 583; 16 Court Reporter, page 611 at 613, in which it was held:

"Criminal proceedings cannot be said to be brought or instituted until a formal charge is openly made against the accused, either by indictment presented or information filed in court, or at the least, by complaint before a magistrate..."

Since investigating a governor is permissible, does an application to the court for power to freeze the account of a governor under Section 34 (1) of the EFCC Act violate Section 308 (1) (c) of the Constitution which states that "no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued"?

The answer is indisputably in the negative (it is "Capital No"). This is because the law expressly states that the application should be made in the absence of the owner of the account, that is, ex-parte. If the EFCC seeks to freeze the account of a governor, there will be no process requiring or compelling the attendance of the governor since same is ex-parte and not on notice. Therefore, Section 308 (1) (c) is neither applicable nor violated in any way.

Freezing of accounts serves principally two purposes. First, by freezing a suspect's account, the commission prevents the suspect from accessing, operating and drawing money from the account which may ultimately be forfeited to the government if the suspect is eventually prosecuted and convicted. Immunity clause cannot prevent the EFCC from securing and preserving monies found in the account of a governor provided the Chairman of the EFCC is satisfied that the money is proceeds of crime. Second, the money is ‘freezed’ for preservation and use as evidence during trial.

From the foregoing, it is clear that there is no provision in Section 308 of the Constitution that is offended by the freezing of the account of a governor. There is no argument about the fact that freezing of bank accounts of persons who are under criminal investigation is merely an interim, precautionary and necessary step preparatory to arraignment and prosecution. Interestingly, an illustration was given by Justice Uwaifo J.S.C. (as he then was) in Fawehinmi's case of an instance where it is alleged that a governor "stole public money and kept it in a particular bank". His Lordship in his prophetic wisdom rightly stated that a "monstrous situation" will be created if the police (in this case the EFCC) is unable "to find out (if possible) about the money lodged in the bank" or "and to get particulars of the account and the source of the money".

According to an online newspaper, Sahara Reporters, "Sources at Nigeria's premier anti-corruption agency, the Economic and Financial Crimes Commission (EFCC) have revealed that a personal account at the Zenith Bank of Nigeria of Ekiti State Governor, Ayodele Fayose, was frozen in connection with over N1.2 billion he took in 2014 from the disgraced National Security Adviser (NSA), Sambo Dasuki, to prosecute his re-election as governor." If this was the basis upon which the EFCC Chairman became satisfied that the money in Fayose's bank account is/was made through commission of an offence under the EFCC Act or other applicable laws, nobody can question him, except the court.

Governor Fayose has not been invited for interrogation by the EFCC; he has not been arrested or imprisoned; no criminal proceedings has been commenced against him, and clearly no process of court requiring or compelling his attendance in court has been issued or applied for. These are the only things and actions that Section 308 of the Constitution forbids. The Supreme Court in Fawehinmi's case supra declared that a governor can be investigated in any manner, provided it does not lead to any these limited situations. The Apex Court emphasised that these limited situations must not be extended under the guise of liberal interpretation of the Constitution.

The question then is? Has any of the protections given to Governor Fayose by Section 308 of the Constitution been taken away by the EFCC? The answer is NO.

However, the EFCC must exhibit an order of the Court that empowered it to freeze Fayose's account. In the absence of such authorisation, the action is illegal, ultra vires, oppressive, undemocratic, null and void and of no effect whatsoever. If the condition precedent was not complied with, the account should be de-freezed immediately without delay with an apology to the governor. Fayose has the right to seek legal redress in the absence of an order of the court. In the case of Mobil v. LASEPA (2003) 104 LRCN 240, the Supreme Court held that failure to comply with a condition precedent is fatal and renders an action a nullity.

One does not need to be a lawyer to know that law enforcement agencies, including the EFCC, in the course of investigation of crime usually and are legally empowered to take possession of material evidence. Freezing of a suspect's bank account is undoubtedly an integral part of the investigation process and procedure. If it were not so, Section 34 (1) of the EFCC Act would only been invokable when a charge or an information has been filed. I submit however that the Court has the supervisory jurisdiction to examine, review and or revoke any freezing order issued by the EFCC chairman depending on the circumstances and the justice of each case. The order itself it interim in nature and not absolute or perpetual.

As a postscript, I further submit that any reference to the immunity clause in Section 308 of the Constitution that is outside the limited protection in the express provisions of that section is legally indefensible and baseless. The President, Vice President, Governors and Deputy Governors only enjoy limited immunity. There is nothing dictatorial, "illegal" or "criminal" in investigating a governor for alleged offences.

Let it be known that immunity is not a license to commit crimes or engage in wanton corruption. Section 308 of the Constitution only offers limited protection. It was never the intention of the framers of the 1999 Constitution for the clause to be exploited as a weapon for impunity, executive lawlessness and self-enrichment.

Ughe is a Legal Practitioner and Strategy Consultant.