From Wole Balogun, Ado Ekiti
A Senior Advocate of Nigeria, Mr. Mike Ozekhome, has faulted his colleague and rights activist, Mr. Femi Falana’s position that the Nigerian Constitution cannot guarantee absolute immunity against criminal prosecution for governors, deputy governors, the president and vice president.
Falana had, in a paper entitled: The limits of immunity Clause’, delivered at the birthday of Edo State’s Secretary to the State Government (SSG), Prof. Julius Inhonvbere, said 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 Ekiti State Governor, Ayodele Fayose against criminal prosecution, adding that the EFCC was toeing a legitimate path by freezing the governor’s accounts and thereafter obtain a court order against his bank. But, Ozekhome said Falana goofed.
The senior advocate, who heads Governor Fayose’s legal team against the EFCC at the Federal High Court, Ado-Ekiti, told newsmen, yesterday, in Ado-Ekiti, that “Falana made three points on the matter and I totally disagree with him. He said you could 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 are in a class of their own. They are a hybrid, neither civil nor 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 (as amended).
Arguing further, he said: “It is the same Constitution, in section 308 that says 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 argurment, that immunity is not absolute, it is totally absolute.
“Falana also said the Money Laundering Act can also apply against a sitting governor, that is wrong. The 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 section 308 says whether under the Money Laundering Act or the EFCC Act, you cannot move against Fayose or any other governor, vice president or 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 governors of Nigeria are not immune from the procedures of the International Criminal Court (ICC).Of course, that is outside the jurisdiction of Nigeria. The ICC operates worldwide and even in that court, people who are being prosecuted are usually prosecuted 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 and 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 Falana’s arguments 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 a bank. They forget that some sections of the EFCC Act, for example, sections 28, 30 say that before you can freeze an account of any person, you must first of all arrest the person and, after that, institute a 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 any 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…”