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).