Constitutional lawyer and Senior Advocate of Nigeria (SAN), Mr. Mike Ozekhome, has said that his colleague and human rights activist , Mr. Femi Falana, was wrong on his position that the Nigerian constitution cannot guarantee absolute immunity against criminal prosecution for governors, deputy-governors, President and Vice-President.
Falana had, during a paper entitled: ‘The Limits of Immunity Clause’, he delivered at the birthday of Secretary to Edo State Government, (SSG), Professor Julius Inhonvbere, said that the Money Laundering Act and Economic and Financial Crimes Commission (EFCC) Act as well as the international criminal court laws do not give absolute immunity to Governor Ayodele Fayose of Ekiti State against criminal prosecution, adding that the EFCC was toeing a legitimate path by freezing the governor’s accounts and, thereafter, obtaining a court order against his bank.
But Ozekhome said Falana goofed.
The Senior Advocate, who heads Fayose’s legal team against the EFCC at the Federal High Court, Ado-Ekiti, spoke to reporters on Sunday in Ado-Ekiti, saying: ” Femi Falana made three points on the matter and I totally disagree with him. He said that you can institute a legal process against governors because they are also sued during election petitions. And I disagree with him on that because election petitions are too generic, they are generic because they in a class of their own. They are an hybrid, neither civil or criminal procedures.
“That is why it is the constitution itself that gives the right for a governor to be sued when they are challenging his mandate , it is not the lower laws like an Act of Parliament like EFCC. EFCC is an Act of Parliament which is millions of miles lower than the provisions of the constitution. And any provision from the EFCC Act or Money Laundering Act, which is inconsistent with the provision of the constitution, is null and void by nature of Section 1, sub-section 3 of the same 1999 constitution.
“It is the same constitution in Section 308 that says that when it comes to civil or criminal procedure, you can never sue the governor and such should not be entertained in any court of law.
“Contrary to Falana’s argument, that immunity is not absolute, it is totally absolute.
” In the case of the IGP versus Gani Fawehinmi which he cited, the Supreme Court upholds that the governor can be investigated. It, however, said that you would have to wait till he vacates his office before you move any court process against him. That was the decision of that court.”
” Falana also said that the Money Laundering Act can also apply against a sitting governor, that is wrong. The Money Laundering Act is an act of the parliament which is as low as the EFCC Act and the two of them must bow to the Kabiyesi (Lord) of our laws which is the 1999 Constitution (as amended in 2011) And that constitution, in its section 308, says that whether under the Money Laundering Act or the EFCC Act, you cannot move against Fayose or any other governor, vice-president, President or deputy-governor. “
“The third point by Falana that immunity is not total has been debunked because Section 308 of the Constitution overrides all the Acts of Parliament such as the Money Laundering and EFCC Act. He also said that governors of Nigeria are not immune from the procedures of the International Criminal Court, of course that is outside the jurisdiction of Nigeria. International Criminal Court operates worldwide and even in that court, all the people who are being tried are usually tried for war crimes or crimes against humanity only when they have vacated office, not when they are still in office. And even at that, these international courts operate internationally and we are in Nigeria. The supreme law of Nigeria or the Kabiyesi (Lord) of all laws in Nigeria is the constitution by virtue of section 1, sub section 3 of this constitution, which says this law shall be supreme and if any other law is inconsistent with the provisions of this constitution, that law shall be null and void. So, none of all the arguments Falana has canvassed, therefore, can show that immunity can be watered down.
” I think what the EFCC is trying to do is to be clever by half by now allegedly obtaining a court order directly against Zenith Bank plc. They forget that some sections of the EFCC Act, for example sections 28, 30 say that before you can freeze the account of any person, you must first of all arrest the person and after that, institute criminal proceedings against the person before you can then get an order of the court to freeze the person’s accounts. The simple question is, can you arrest Fayose now or institute criminal proceedings against him? The answer is no. So, what the EFCC has done from every angle is illegal and unconstitutional. And they are doing all this after the illegal freezing because they know they are in a mess.
” If they feel the law is inadequate, too bad. They have to first go to the National Assembly and ask them to remove Section 308 which is the immunity clause or better still wait till October 16, 2018 when Fayose would vacate office as governor before they can come after him. Unless they want us to now believe that we are now living in an hobbesian state of nature where life is short, nasty and brutish”.
