The Limit of Ayo Fayose’s Immunity – By Femi Falana

Femi Falana

Sometime in 2004, Governor Ayo Fayose was reported by The News magazine to have stolen N1.2 billion from the coffers of Ekiti State government. The brutal killings in the state were also traced to a killer squad funded by the governor. Embarrassed by the publication, Mr. Fayose sued the magazine at the high court holden at Ado Ekiti. Our law firm defended the magazine and pleaded justification. At the trial of the case, the allegations in the publication were proved beyond any shadow of doubt. In dismissing the suit, the trial judge said that Mr. Fayose had no reputation worthy of protection by any court.

The allegation of the looting of the treasury of the state was investigated by the EFCC which proceeded to charge Mr. Fayose at the Federal High Court. The Police also charged him with the murder of Tunde Omojola at the Ekiti State high court. Both cases were pending in court when he contested and ‘won’ the Ekiti State governorship election. Shortly thereafter, a young army officer, Captain Sagir Koli exposed the involvement of some armed personnel led by General Aliyu Momoh in the coup which led to the ‘re-election’ of Governor Fayose. All the criminal suspects initially denied their involvement in the criminal enterprise. But when confronted with the tape recording of the plot to manipulate the election, Mr. Fayose admitted that he took part in the coup.

Based on the expose by Captain Koli, the authorities of the Nigerian Army set up a panel of enquiry to investigate the role of the armed soldiers in the violent subversion of the democratic process in Ekiti State. The panel conducted the inquiry and identified the military officers and soldiers who participated in the coup which led to the pyrrhic victory of Mr. Ayo Fayose. The report of the panel was submitted to the Chief of Army Staff who promised to act on it by implementing its recommendations.

The indicted military officers and armed soldiers have since been flushed out of the Nigerian army. Some of them were also referred to the EFCC for further investigation over allegations of financial inducement and corrupt practices. The findings of the army panel have been corroborated by Mr. Fayose’s campaign manager, Dr. T.K. Aluko who addressed several press conferences wherein he gave graphic details of the illegal deployment of armed troops and criminal diversion of public funds for the governorship election allegedly won by Mr. Fayose. In particular, he revealed that the fund for the election was ferried to Ado Ekiti by a former minister who is currently on self exile in the United States.

While not challenging the allegation by the EFCC that the sum of N1.3 billion has been traced to his personal account, Mr. Fayose has attempted to hide under the immunity clause to shield himself from investigation. Contrary to the governor’s claim, he does not enjoy immunity from investigation with respect to his criminal involvement in treasonable conduct and corrupt practices. It is trite law that all the public officers protected by Section 308 of the Constitution can be investigated for corruption and other criminal offences. In Chief Gani 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.”

To ensure that the investigation of the public officers covered by the immunity clause is not compromised by the executive, the Chief Justice of Nigeria is empowered by section 52 of the ICPC Act to appoint an Independent Counsel (who shall be a legal practitioner of not less than 15 years standing) to investigate any allegation of corruption against the president, vice president, governor or deputy governor. The ICPC is enjoined to fully cooperate with such independent counsel and provide all facilities necessary for such independent counsel to carry out his functions. At the end of the investigation, the Independent Counsel is required to make a report of the findings to the National Assembly in the case of the president or vice president and to the relevant House of Assembly of a State in the case of the governor or deputy governor.

Since there is no immunity for impunity as far as electoral malfeasance is concerned, the investigation by the EFCC is in order. The senior lawyers who have questioned the freezing of Mr. Fayose’s account on the ground that the EFCC did not obtain a court order have not read section 28 of the EFCC Act which provides that“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”. 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.

I am not unaware that by the strict interpretation of section 308 of the Constitution, no court process can be issued or served on a governor. But because immunity cannot be pleaded or invoked to cover electoral fraud, elected governors are served with court processes and dragged to court to respond to allegations of electoral malpractice. However, in order to give effect and validity to the equality of the rights of all contestants in a presidential or governorship elections, it has been held by the Supreme Court that the immunity clause cannot be invoked in election petitions. Otherwise, public officers covered by the immunity clause may take advantage of their positions to rig elections and thereby sabotage the democratic process. The rationale for suspending the operation of the immunity clause during the hearing of election petition was explained by the late Justice Kayode Eso in Obih Vs. Mbakwe (1984) All NLR 134 at 148 when he said:

“With respect, to extend the immunity to cover the governors from being legally challenged when seeking a second term will spell injustice. I am conscious of the fact that in my interpretation of section 267 of the Constitution, I am giving that provision a narrow interpretation. This is deliberate for, in my view, in the interpretation of the Constitution, care should be taken not to diminish from the justice of the matter, this is not a case of a judge engaging in legislative process.”

Similarly, in Turaki v. Dalhaltu (2003) 38 WRN 54 at 168 the Court of Appeal (per Oguntade JCA (as he then was) had this to say:

“There is no doubt that a Governor by the force of section 308 of the 1999 Constitution is immuned from civil and criminal proceedings for his personal acts but in proceedings in an election petition or seeking to enforce rights appertaining to or arising from national elections, no Governor in my view enjoys or can claim immunity. In an election matter, as in this case, the right of the Governor to remain such Governor is in issue. If a Governor were to be considered immuned from court proceedings, that would create the position where a sitting Governor would be able to flout election laws and regulations to the detriment of other person contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution which in its tenor provides for a free and fair election.”

…if he is indicted, Mr. 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 the case of the Alliance for Democracy v. Peter Ayodele Fayose (No 1) (2004) 26 WRN 34, the Respondent had challenged the issuance of a subpoena on him on the ground that Section 308 has conferred immunity on him as a governor. While dismissing the objection the Court of Appeal (per Muri Okunola JCA) held:

“…The provisions of section 308 of the 1999 Constitution of the Federal Republic of Nigeria are not applicable to confer immunity on a State Governor in an election petition involving his election to preclude the issuance of subpoena on him. Or put in another way: the immunity provided by the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is put in abeyance when his election is being disputed before an Election Tribunal as to make him amenable to being compelled by a subpoena to tender document(s) or give evidence before the Election Tribunal.”

In view of the fact that the effect of section 308 of the Constitution has been watered down, Governor 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, Mr. Fayose who was a candidate of the PDP at the material time, is liable to be investigated. And if he is indicted, Mr. 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.

Finally, in his desperate bid to divert public attention from the ongoing investigation of the criminal diversion of public funds, Mr. 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 governor, Mr. Fayose ought to be prosecuted for treason which arose from the electoral malfeasance.

Femi Falana, a Senior Advocate of Nigeria (SAN), writes from Lagos.