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THE CLOAK OF IMMUNITY


Government officials are important personalities, who, owing to the value of the duties they perform, which are essential and beneficial to society, ought not be distracted or inhibited from fulfilling their function as an integral part of the community. Hence, one of the means of blocking these channels of distractions or inhibitions is through the status of legal immunity which selected government officials enjoy.

Of recent, this word” immunity” has given rise to heated opinion, debates and views,(amongst  lawyers, political analyst, and even beer parlor frequenters) owing to the  controversy  surrounding the Ekiti state governor Ayo Fayose , and the Economic and Financial Crimes Commission (EFCC) , with the latter (upon receiving an ex Parte order from the court ) freezing the former’s account domiciled in the Zenith bank of Nigeria on the rationale of investigation.

Curiously, it is pertinent to then ask what immunity is.

According to Wikipedia, legal immunity, or immunity from prosecution, is a legal status wherein an individual or an entity cannot be held liable for a violation of the law to facilitate societal aims that outweigh the values of imposing liability in such cases. Such legal immunity may be from criminal prosecution or from civil liability (being subject of lawsuit) or both.

As a corollary, criminal and civil proceedings involve instituting legal actions in a court of law: the former on violations of criminal law and the latter on civil matters.

Collapsing the aforementioned, legal immunity is a cloak draped on the shoulders of government officials to shield them from blizzards of litigation in the performance of their duties.

Although immunity has not been expressly defined by our statutes, our constitution which is the ground norm; the highest law in the nation. stipulates in section 308 of the 1999 constitution of the Federal Republic of Nigeria (as amended) that no criminal proceedings shall be instituted or continued against the President or Vice President , Governor or Deputy Governor during period of office.

This section however does not affect these officials being sued in their official capacity; or being joined as a nominal party; or being impeached. More so, they are not immune to election petitions.

That said, the golden thread running through the arguments concerning freezing Governor Ayo Fayose’s accounts is: is it legal and constitutional?  Does it defeat the Intendment and spirit of the constitution? Does EFCC have the right freeze the Governor’s account?

The Laws creating institutions usually stipulate their powers and limits. The  Economic and Financial Crimes Commission (Establishment) Act 2004 (subsequently referred to as the EFCC Act) promulgated by the National Assembly, Is the EFCC’s enabling law, and its functions, powers and restrictions are contained therein . The EFFC was created in 2003 as part of the government’s effort to tackle corruption, fraud and other financial crimes bedeviling the country.

To that effect, Section 34 (1) of the EFCC Act with the heading: “Freezing order on banks or other financial institutions”, provides as follows:

“Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorized by him may, if satisfied that the money in the account of a person is made through the commission of an offense under this Act and or any of the enactments specified under section 7 (2) (a)-(f) of this Act, apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account.”

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This section brings certain core factors to light.

The EFCC in its Herculean task of fighting corruption has been, by this ACT, given the power to apply to the court ex parte (without the other side; that is the other party to the case) to issue an order to freeze the account of any individual if satisfied that the money in the said account is from a source of crime under this Act or any other enactment specified in the Act.  The drafters of the EFCC ACT were aware of the section 308 of the constitution when they drafted the ACT, and to avoid any conflict with the ground norm, in spite stating in the opening of section 34(1) of the EFCC ACT that “notwithstanding anything contained in any other enactment or law,” they provided for the freezing of the account by applying to the court for an ex parte order.  An ex parte order is issued by a judge without the other party been invited or compelled to court.

And section 308 of the constitution states that no criminal or civil proceeding shall be instituted or no process of any court requiring or compelling the appearance of the President or Governor and their deputies, shall be applied or issued. Thus, the EFCC by going to court for an ex parte order did not file any charge or court process, or move any motion which warranted the presence of the Governor, Ayo Fayose. The EFCC simply went to the court on the permissible reason of investigation, to have the said account frozen.

On the issue of immunity and investigation the court in Gani Fawehinmi v. IGP (2000) 1WRN 90 held that the phrase civil or criminal proceedings does not include police investigations and to be limited to such proceedings before a court or tribunal.

Elucidating on this  point , Justice S.O. Uwaifo, J.S.C (as he then was), held inter alia:

“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 offense is, in my view, beyond dispute. To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated. I shall give three possible instances. Suppose it is alleged that a Governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented or damaged part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept it in a particular bank or used it to acquire property. Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be precluded by section 308 from investigating to know the identity of the man killed, the cause of death from autopsy report, the owner of the car taken to the workshop and if there is any evidence from the inspection of the car that it hit an object recently, more particularly a human being; or to take steps to recover the gun and test for ballistic evidence; and generally to take statements from eye witnesses of either incident of killing. Or to find out (if possible) about the money lodged in the bank or for acquiring property, and to get particulars of the account and the source of the money; or of the property acquired?

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Accordingly, even though the EFCC is not the police per se, its functions are so similar to that of the police that the decision of the court could be stretched to include investigations by the EFCC.

Reflective of partisanship or otherwise , an argument in a column ran the other day that the EFCC acted in error in obtaining an ex parte order to freeze the account of the person in the dignified and respected office of the Governor, who has immunity. The argument goes further to state that before such action is taken, the governor should be impeached first.

It must be reiterated that the governor of Ekiti state has not been dragged before the court, neither has he been invited nor a summon issued or a complainant lodged in the court bearing his name.  Most definitely, a closer look at the criminal procedure Act Cap. C41. LFN 2004 (which is applicable to southern Nigeria) will clear the mist. The criminal procedure Act Stipulates in section 77 (b), the different methods of commencing criminal proceedings in the high court. To wit:

(I) By information of the attorney general of the state in accordance with the provisions of section 72 of this Act, and
(II) By information filed in the court after the accused has been summarily committed for perjury by a judge or magistrate under the provisions of part 31 of this Act, and
(III) By information filed in the court after the accused has been committed for trial by a magistrate court under the provisions of part 36 of this Act, and
(IV) On complaint whether on oath or not.

Hence, going by the letters of section 77 of the Criminal Procedure Act, the EFCC has by no means instituted an action against the Governor, Ayo Fayose, thus violating his sanctified immunity. All the commission did was to obtain an order, freezing the account of the Governor pending investigation. To wait upon impeachment before obtaining such an order would be tantamount to delay defeating justice. For impeachment processes involve numerous inroads amongst which  a committee must be appointed by the chief judge of the state with a 3 months validity period. Within such a period the said account can be emptied and said money subject matter of investigation might become lost or buried in fictitious paper trails. More so Nigeria is a peculiar nation, where at times in proceedings before courts bank documents have been said to get burnt or disappear; our budget itself developed athletic-feet and disappeared from the NASS.

The import of the investigation being carried out by the EFCC is that the ex-parte order freezing the said account is temporal; it does not lie in perpetuity and is not necessarily a stamp of guilt on the Governor. Our legal system , which is lex  scripta, stipulates innocent till proven guilt. The investigation aids the commission in gathering the necessary information, on which if nothing tangible is found the governor will resume having unfettered access to his account.

This comes around a time when emphasis around the globe is being shifted from retributive to restorative justice. Thus, the main object is not necessarily punishing the Governor but recovering the misappropriated common wealth.

It could therefore be seen that obtaining the ex parte order directing the freezing of governor Ayo Fayose’ account is in tandem with the interest of justice and is not only constitutional and legal, but ought to be commendable in this seemingly never ending fight against corruption where the government officials feel above the law


About Michael Ayua

A final year student of law, Benue State University, Benue State, Nigeria.

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