On Monday 20th 2016, the Governor of Ekiti State, Mr. Ayo Fayose alerted<\/p>\n
the world that his personal bank account domicile at Zenith Bank Nigeria
\nPLC has been frozen on the order of the Economic and Financial Crimes
\nCommission (EFCC).<\/p>\n
The 55 years old politician accused President Muhamadu Buhari of using the
\ninstrumentalities of the law to fight him for daring to criticize his
\ngovernment.<\/p>\n
The Governor however kicked against the action of the EFCC as he claimed
\nthat such move contravenes the provisions of section 308 of the Nigerian
\nconstitution which granted him an immunity against being tried for any
\ncivil or criminal offense.<\/p>\n
This contentious issue has generated a lot of hues and cries in the media.
\nThe issue has divided Nigerians. Some opined that the action of the EFCC
\nwas legal while some argued that it was illegal. However, my personal view
\nis stated as thus:<\/p>\n
1. EFCC Act 2004.<\/p>\n
Section 34 (1) of the EFCC Act with the heading: “Freezing order on banks
\nor other other financial institutions”, provides as follows:<\/p>\n
“Notwithstanding anything contained in any other enactment or law, the
\nChairman of the Commission or any officer authorised by him may, if
\nsatisfied that the money in the account of a person is made through the
\ncommission of an offence under this Act and or any of the enactments
\nspecified under section 7 (2) (a)-(f) of this Act, apply to the Court
\nex-parte for power to issue an order as specified in Form B of the
\nSchedule to this Act, addressed to the manager of the bank or any person
\nin control of the financial institution or designated non-financial
\ninstitution where the account is or believed by him to be or the head
\noffice of the bank, other financial institution or designated
\nnon-financial institution to freeze the account.”<\/p>\n
Caveat:<\/p>\n
Going by the provisions of section 34 of the EFCC Act, EFCC acted
\nultravires. No record from Zenith Bank, the EFCC and the media that a
\ncourt of law granted the EFCC an ex-parte order to freeze the personal
\nbank account of Governor Ayo Fayose. Thus, the whole action of the EFCC,
\nto me, contravenes the provisions of section 34 of the EFCC Act.<\/p>\n
2. The Immunity Clause:<\/p>\n
This is enshrined in Section 308 of the Constitution of the Federal
\nRepublic of Nigeria 1999 (as amended) and the provisions are reproduced
\nverbatim below:<\/p>\n
308. (1) Notwithstanding anything to the contrary in this Constitution,
\nbut subject to subsection (2) of this section –<\/p>\n
(a) no civil or criminal proceedings in court of law shall be instituted
\nor continued against a person to whom this section applies during his
\nperiod of office;<\/p>\n
(b) a person to whom this section applies shall not be arrested or
\nimprisoned during that period either in pursuance of the process of any
\ncourt or otherwise; and<\/p>\n
(c) no process of any court requiring or compelling the appearance of a
\nperson to whom this section applies, shall be applied for or issued:<\/p>\n
Provided that in ascertaining whether any period of limitation has expired
\nfor the purposes of any proceedings against a person to whom this section
\napplies, no account shall be taken of his period of office.<\/p>\n
(2) The provisions of subsection (1) of this section shall not apply to
\ncivil proceedings against a person to whom this section applies in his
\nofficial capacity or to civil or criminal proceedings in which such a
\nperson is only a nominal party.<\/p>\n
(3) This section applies to a person holding the office of President or
\nVice President, Governor or Deputy Governor; and the reference in this
\nsection to “period of office” is a reference to the period during which
\nthe person holding such office is required to perform the functions of the
\noffice.<\/p>\n
Caveat:<\/p>\n
i. Going by the provisions of section 308 of the constitution, Immunity
\ndoes not stop a Deputy Governor, Governor, Vice-President and President
\nfrom being investigated by law enforcement agencies.<\/p>\n
ii. However, no civil or criminal proceedings can be instituted against
\nthe aforementioned persons.<\/p>\n
iii. As opined by a Lagos based Lawyer and Human Rights Activist, Ebun Olu
\nAdegboruwa, it is also my believe that an ex-parte order on any civil or
\ncriminal case that involve the persons of the beneficiaries of the
\nimmunity clause in section 308 of the constitution is illegal.<\/p>\n
iv. It is my believe that the action of EFCC is illegal because any
\nex-parter order against the persons (Dep. Governor, Governor, V.P and
\nPresident) that section 308 (1)a of the constitution exempted from
\npersonally being sued at any court of law for any civil or criminal
\nmatter. The law says: “No Civil or criminal proceedings in court of law
\nshall be instituted or continued against a person to whom this section
\napplies during his period of office”.<\/p>\n
v. Since the case under investigation is criminally embedded and the
\nex-patre order (be it interim or what ever) from court would bear the name
\nof (take for instance), Ayo Fayose, the Governor of Ekiti State, I want to
\nsay expressly that such action contravenes the provision of section 308 of
\nthe constitution.<\/p>\n
vi. The frozen bank account at Zenith Bank belong to Ayo Fayose, Governor,
\nEkiti State. An ex-partre ( court) order against the personal bank account
\nof Ayo Fayose is against Ayo Fayose and the section 308 (1)a of the
\nconstitution.<\/p>\n
vii. It is my believe that EFCC did not seek for any court order to freeze
\nGovernor Ayo Fayose’s personal bank account because the organization
\napparently knew no court would grant such an order hence the resort to
\nillegality.<\/p>\n
viii. I want to state expressly that I am in support of the war against
\ncorruption of the Buhari led federal government but such war must be
\npursued within the ambit of the laws. Any crusade we want to undertake
\nmust be done with all due respect to the laws of Nigeria. The laws were
\ncreated to guide our modicum of operations therefore they (the laws) must
\nbe sanctified and respected.<\/p>\n
ix. Lastly, I am appealing to the international community and human
\nrights groups to rise up and protect the constitution of Nigeria from
\nbeing trampled upon by institutions created under the law. Precedence that
\nwould boomerang in future must be avoided for the sake of the innocent
\ngeneration yet unborn.<\/p>\n
Adeleye writes from Magodo, Lagos.
\nMaxwell_adeleye@yahoo.com
\nTel: 08184397228 (SMS ONLY).<\/p>\n","protected":false},"excerpt":{"rendered":"
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