Falana: EFCC Can Prosecute Fayose as Sitting Governor

• Says he can’t invoke immunity clause to escape investigation

By Gboyega Akinsanmi

Contrary to the diverse legal opinion that faulted the freezing of the bank accounts of the Ekiti State Governor, Mr. Ayodele Fayose, a human rights lawyer, Mr. Femi Falana, wednesday said the Economic and Financial Crimes Commission (EFCC) could investigate and prosecute him as a sitting governor.

Falana, a Senior Advocate of Nigeria (SAN), consequently cited diverse judicial precedents and legal instruments, which he said justified the decision of the anti-graft commission to investigate and freeze Fayose’s bank accounts.
He faulted Fayose’s reliance on section 308 of the 1999 Constitution to escape criminal investigation in a statement he issued yesterday, noting that immunity clause did not come to play in criminal investigation of a sitting governor or a sitting president.

He explained Fayose’s diverse criminal antecedents ranging from the looting of N1.2 billion from the state’s treasury in 2004 to alleged involvement in the murder of Tunde Omojola and the 2014 Ekiti governorship election rigging.

The human rights lawyer, thus pointed out that the EFCC was currently being investigated in connection “to a coup, which led to the re-election of Fayose” in the Ekiti State governorship held on June 21, 2014.
He explained that in view of the fact that the effect of section 308 of the 1999 Constitution “has been watered down, 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, the senior advocate argued that Fayose, who was a candidate of the Peoples Democratic Party (PDP) at the material time “is liable to be investigated.

“If he is indicted, 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. In his desperate bid to divert public attention from the ongoing investigation of the criminal diversion of public funds, 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 the Ekiti State governor, Fayose ought to be prosecuted for treason which arose from the electoral malfeasance.”

In support of his position, Falana observed that the senior lawyers, who had questioned the freezing of Fayose’s account on the grounds that the EFCC did not obtain a court order had not read section 28 of the EFCC Act thoroughly.
The section read: “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.”

Contingent on the section, Falana noted that 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.”
Aside, Falana cited different judicial precedents that justified the criminal investigation and prosecution of a sitting governor or a sitting president in connection to electoral malpractice, noting that immunity clause did not apply.

He cited the decision of Justice Kayode Eso in Obih vs Mbakwe; the judgment of Justice Oguntade in Turaki vs Dalhaltu, the decision of Muri Okunola JCA in Alliance for Democracy vs Peter Ayodele Fayose and another Supreme Court in Chief Gani Fawehinmi vs Inspector General of Police, among others.

In each of these judicial precedents, the senior advocate pointed out that the courts explained the rationale for suspending the operation of the immunity clause during the hearing of election petitions.

In 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.”