Governor Fayose versus EFCC/FG: A Citizen's Perspective

On Monday 20th 2016, the Governor of Ekiti State, Mr. Ayo Fayose alerted

the world that his personal bank account domicile at Zenith Bank Nigeria

PLC has been frozen on the order of the Economic and Financial Crimes

Commission (EFCC). The 55 years old politician accused President Muhamadu Buhari of using the

instrumentalities of the law to fight him for daring to criticize his

government. The Governor however kicked against the action of the EFCC as he claimed

that such move contravenes the provisions of section 308 of the Nigerian

constitution which granted him an immunity against being tried for any

civil or criminal offense. This contentious issue has generated a lot of hues and cries in the media.

The issue has divided Nigerians. Some opined that the action of the EFCC

was legal while some argued that it was illegal. However, my personal view

is stated as thus: 1. EFCC Act 2004. Section 34 (1) of the EFCC Act with the heading: “Freezing order on banks

or other other financial institutions”, provides as follows:

“Notwithstanding anything contained in any other enactment or law, the

Chairman of the Commission or any officer authorised by him may, if

satisfied that the money in the account of a person is made through the

commission of an offence under this Act and or any of the enactments

specified under section 7 (2) (a)-(f) of this Act, apply to the Court

ex-parte for power to issue an order as specified in Form B of the

Schedule to this Act, addressed to the manager of the bank or any person

in control of the financial institution or designated non-financial

institution where the account is or believed by him to be or the head

office of the bank, other financial institution or designated

non-financial institution to freeze the account.”

Caveat: Going by the provisions of section 34 of the EFCC Act, EFCC acted

ultravires. No record from Zenith Bank, the EFCC and the media that a

court of law granted the EFCC an ex-parte order to freeze the personal

bank account of Governor Ayo Fayose. Thus, the whole action of the EFCC,

to me, contravenes the provisions of section 34 of the EFCC Act.

2. The Immunity Clause: This is enshrined in Section 308 of the Constitution of the Federal

Republic of Nigeria 1999 (as amended) and the provisions are reproduced

verbatim below: 308. (1) Notwithstanding anything to the contrary in this Constitution,

but subject to subsection (2) of this section –

(a) no civil or criminal proceedings in court of law shall be instituted

or continued against a person to whom this section applies during his

period of office; (b) a person to whom this section applies shall not be arrested or

imprisoned during that period either in pursuance of the process of any

court or otherwise; and (c) no process of any court requiring or compelling the appearance of a

person to whom this section applies, shall be applied for or issued:

Provided that in ascertaining whether any period of limitation has expired

for the purposes of any proceedings against a person to whom this section

applies, no account shall be taken of his period of office.

(2) The provisions of subsection (1) of this section shall not apply to

civil proceedings against a person to whom this section applies in his

official capacity or to civil or criminal proceedings in which such a

person is only a nominal party. (3) This section applies to a person holding the office of President or

Vice President, Governor or Deputy Governor; and the reference in this

section to “period of office” is a reference to the period during which

the person holding such office is required to perform the functions of the

office. Caveat: i. Going by the provisions of section 308 of the constitution, Immunity

does not stop a Deputy Governor, Governor, Vice-President and President

from being investigated by law enforcement agencies.

ii. However, no civil or criminal proceedings can be instituted against

the aforementioned persons. iii. As opined by a Lagos based Lawyer and Human Rights Activist, Ebun Olu

Adegboruwa, it is also my believe that an ex-parte order on any civil or

criminal case that involve the persons of the beneficiaries of the

immunity clause in section 308 of the constitution is illegal.

iv. It is my believe that the action of EFCC is illegal because any

ex-parter order against the persons (Dep. Governor, Governor, V.P and

President) that section 308 (1)a of the constitution exempted from

personally being sued at any court of law for any civil or criminal

matter. The law says: “No Civil or criminal proceedings in court of law

shall be instituted or continued against a person to whom this section

applies during his period of office”. v. Since the case under investigation is criminally embedded and the

ex-patre order (be it interim or what ever) from court would bear the name

of (take for instance), Ayo Fayose, the Governor of Ekiti State, I want to

say expressly that such action contravenes the provision of section 308 of

the constitution. vi. The frozen bank account at Zenith Bank belong to Ayo Fayose, Governor,

Ekiti State. An ex-partre ( court) order against the personal bank account

of Ayo Fayose is against Ayo Fayose and the section 308 (1)a of the

constitution. vii. It is my believe that EFCC did not seek for any court order to freeze

Governor Ayo Fayose’s personal bank account because the organization

apparently knew no court would grant such an order hence the resort to

illegality. viii. I want to state expressly that I am in support of the war against

corruption of the Buhari led federal government but such war must be

pursued within the ambit of the laws. Any crusade we want to undertake

must be done with all due respect to the laws of Nigeria. The laws were

created to guide our modicum of operations therefore they (the laws) must

be sanctified and respected. ix. Lastly, I am appealing to the international community and human

rights groups to rise up and protect the constitution of Nigeria from

being trampled upon by institutions created under the law. Precedence that

would boomerang in future must be avoided for the sake of the innocent

generation yet unborn. Adeleye writes from Magodo, Lagos. Maxwell_adeleye@yahoo.com Tel: 08184397228 (SMS ONLY). The post Governor Fayose versus EFCC/FG: A Citizen’s Perspective appeared first on Pointblank News .