The Nation Newspaper

Tag: immunity

  • No immunity against impunity

    Legislators’ bid to cloak principal officers with immunity is misplaced

    There appears to be no end to the struggle by lawmakers to inject absurdity into our constitutional democracy. The latest is the ongoing attempt to shield presiding officers in both houses of the National Assembly from the law. Both the Senate and the House of Representatives, currently engaged in constitution amendment process, have thrown up a debate on desirability of extending the immunity conferred on executive leaders to the senate president, his deputy, speaker of the house and his deputy. This is totally misplaced, self serving and undesirable.

    We are shocked that the lawmakers are ignorant of the global best practice in this respect. There is no country in the world – federal, unitary, presidential or parliamentary – where lawmakers are covered by immunity from arrest, prosecution and trial. All they have is parliamentary immunity that allows them make robust contribution on the floor of the parliament without fear of executive intimidation. And this is the case in Nigeria. No senator or house member could be arrested within the precinct of the National Assembly or any state house of assembly for that matter.

    The debate is the more bizarre coming at a time many Nigerians are calling for the removal of section 308 of the constitution which deals with immunity altogether. The revelations and confessions with which Nigerians are regaled daily indicate that such concepts that are introduced in developed countries to allow executive leaders focus on socio-political development are grossly abused in this country. Realising that they are free from prosecution for any crime committed for as long as they occupy sensitive offices, past leaders at the federal and state levels converted the common wealth to private use. It is therefore debatable whether they deserve any immunity whatsoever.

    It is also ridiculous that the legislators appear to have sprung to the defence and support of their leaders being investigated or prosecuted for malpractices in their previous stations. It is alarming, for example, that anyone could seek, at this point to free the senate president, Dr. Bukola Saraki, from the clutches of the law when he is answering to allegations of malpractices during his tenure as governor of Kwara State. At the code of conduct tribunal, he is answering to alleged perjury for falsifying the information he filed as declaration of assets in 2003. The senate president has been fighting tooth and nail to wriggle out of the suits, engage more in legal acrobatics than any serious attempt to prove his innocence. It is not only shameful that each time he had to appear before the Code of Conduct Tribunal, half of the senate went with him, thus crippling sitting for the day. Worse still, the legislature made a move to intimidate the tribunal chairman and amend the Code of Conduct Tribunal Act in a way that would have favoured Dr. Saraki.

    Now, they are attempting to use the review of the constitution window to cloak the same embattled senate president with immunity he neither has nor deserves. Leading the Constitution Review Committees of the senate and the house are two officers who are would-be beneficiaries of the proposed amendments: Deputy Senate President Ike Ekweremadu and Deputy Speaker Yusuf Suleiman Lasun. It is therefore obvious that the amendment is motivated by base self interest which violently conflicts with the national interest. Those who are arguing that the executive is merely persecuting the legislative officers should patiently await judicial verdicts. Thus far, Dr. Saraki has engaged more in shadow boxing than proving the prosecuting authority wrong. Nigerians are more interested in knowing the truth and getting the end of justice served than playing political ping-pong.

    The future of Nigeria is on trial; the life of democracy is being threatened. If legislators who are supposed to be closest to the electorate could behave in this fashion, what is to be expected of high officials of state merely appointed to office? The conduct of these legislators has shown that there was no due diligence in recruiting them for the offices they now occupy. The political parties on whose platform they rode into office are corruption-sodden and weak. The other case on forgery of legislative rules filed against the senate president and his deputy should be pursued to its logical conclusion, irrespective of attempts at blackmail. Unless there is a concerted action to build institutions, the quest for development would remain a mirage.

    We are convinced that the legislature deserves the attention and protection of all. It has always been a victim of interruptions of the democratic match. While the executive and judiciary somewhat managed to survive military interventions, the legislature was usually dissolved, thus unable to pick up useful lessons and develop norms, conventions and culture.

    We therefore call on the media, civil society groups and all politically conscious Nigerians to get involved in this debate. We say ‘No’ to immunity for legislators.

  • Lawyer: governor can’t use immunity to commit fraud

    Lawyer: governor can’t use immunity to commit fraud

    A senior lawyer based in Ado Ekiti, Kolade Ilesanmi, has said the freezing of the personal bank account of Governor Ayo Fayose by the Economic and Financial Crimes Commission (EFCC) is in order and in line with the Act establishing the agency.

    Ilesanmi, who spoke in a chat with The Nation, contended that Section 28 of the EFCC Act 2002, empowers the commission to freeze the account of any suspect and obtain a court order thereafter.

    He argued that Section 28 of the EFCC Act gives the commission the power to go ahead and investigate Fayose, but cannot arraign him as he enjoys immunity from civil and criminal prosecution.

    Ilesanmi said the governor, his supporters and some lawyers sympathetic to his cause who are quoting Section 34 of the same Act were ignorant of the fact that it is not mandatory for the agency.

    The legal practitioner noted that while the provision in Section 28 carries the word “shall”,  that of Section 34 carries the word “may”.

    He noted that the latter is not binding on the EFCC while the former is.

    Section 28 of the EFCC Act 2002 reads: “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.”

    He stressed that if Fayose’s account was not frozen, the ‘res’ of the matter would be destroyed, arguing further that the ‘res’ must be protected.

    Ilesanmi said: “The word ‘shall’ is used there and under this present situation, the governor enjoys immunity under Section 308 (of the 1999 Constitution), he can’t be arrested or arraigned. He is immune from civil and criminal prosecution.

    “Where the world ‘shall’ is used, it is compulsory. Section 34 some lawyers rely on says ‘may’ and when the word ‘may’ is used, it does not impose compulsion and it means it is not mandatory for the commission to seek the order to attach the account or freeze the account.

    “The word ‘may’ in legal parlance is not mandatory; but under Section 28, the word ‘shall’ is used.”

    Ilesanmi added: “Where state funds have been stolen, are they saying the authorities empowered by law cannot recover the cash? The account frozen is the ‘res’ and where the ‘res’ is destroyed, where is the basis in the action.

    “You cannot use immunity as an engine of fraud, immunity is not absolute; it is there to protect the occupant of the office from distraction but they are misusing it in Nigeria.

    “If a governor had looted state funds and keeps it in a secret account, should they allow him to have access to it? What of if he wires the money out of the account or he dies, what happens to the money? We begin another round of legal bottleneck to repatriate the money.

    “The EFCC cannot wait and allow the ‘res’ to be destroyed; the action of the EFCC is in order and I quite agree with it.”

     

     

     

  • Why Fayose should not enjoy immunity, by SERAP

    Why Fayose should not enjoy immunity, by SERAP

    Socio-Economic Rights and Accountability Project (SERAP) has said “the freezing of Governor Ayodele Fayose’s account by the Economic and Financial Crime Commission (EFCC) is lawful under Section 308 of the 1999 Constitution and International Law, particularly the United Nation Convention against Corruption to which Nigeria is a state party”.

    The group argued that, “The freezing of the account is a preventive measure, which is necessary for the conduct of an effective investigation of allegations of corruption involving former National Security Adviser, Sambo Dazuki.”

    A statement by its Executive Director Adetokunbo Mumuni said: “The freezing of accounts of sitting governors and other high-ranking public officials accused of corruption is essential for the flow of investigation, which is allowed under Section 308. The investigation is pointless without the freezing of the account.

  • Mimiko goofed on immunity clause, says APC

    Mimiko goofed on immunity clause, says APC

    The All Progressives Congress (APC) in Ondo State has criticised the statement credited to Governor Olusegun Mimiko on the Economic and Financial Crimes Commission’s (EFCC’s) restriction on the account of his Ekiti State counterpart, Ayodele Fayose.

    The party said Mimiko’s statement showed a mindset of “a coward who dies many times before his death”.

    A statement by APC’s Director of Media and Publicity, Steve Otaloro, said: “From emerging revelations, many adherents of the past government of the Peoples Democratic Party (PDP) who pilfered our common patrimony are being exposed daily beyond their faint imaginations.

    “This may be sending shockwaves to their spines and, who could tell whether Dr Mimiko might be mentioned as one of the beneficiaries at the end of the day. That is warranting his fears to issue such statement that President Mohammadu Buhari should call the EFCC to order over the freezing of a personal account of Fayose”.

    Mimiko had urged the President to intervene to rescue the country from what he described as current gross abuse of the Constitution, submitting that what EFCC has done violated section 308 that granted immunity to a sitting Governor.

    But APC said “the law permits the EFCC to freeze an account or attach a property of a criminal suspect and proceed and to thereafter obtain an ex parte order from the appropriate court.

    “EFCC Act states 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 party urged Mimiko to advise his Ekiti State counterpart to defend his integrity,especially, after he was alleged to be keeping such a huge amount in his personal account at a time when the state workers had not received six months salaries.

    According to the party,”If you are not a looter, you have nothing to hide, you would promptly focus your energy on defending your integrity. The immunity thing would be secondary matter in your mind.

    “Were it not for the proactive actions of the EFCC in the recent past, no one would have known that an individual could be richer than a state in our country”.

    APC therefore called on the citizenry to take keen interest more than before in the management of the state’s financial resources by the Mimiko’s led administration that has refused to pay workers salaries for upwards of six months.

  • Immunity and pension

    Immunity and pension

    The steroids Saraki and Co. need to perform

    What many Nigerians are neophytes in the art of law making is evident in the way they have descended on our law- makers in the National Assembly in their desire to get immunity and pension for their principal officers. Definitely, those conversant with the arduous nature of their legislative functions would not think twice before endorsing the proposal. This is a thing that even ‘floor’ members of the House and the Senate should enjoy. We should therefore be grateful to them for putting our purse into consideration by saying that only their principal leaders, that is senate president Bukola Saraki, Yakubu Dogara, speaker, House of Representatives, and their deputies should be entitled to both privileges.

    Imagine the problem the current senate president is going through. If he had immunity, would he have been subjected to such ordeals? How do we want him to concentrate on his job with the criminal charge hanging on his neck like a necklace of stone? Now, we are complaining about the numerous challenges affecting Nigerians; even the lawmakers themselves are worried about all these issues that could have been ameliorated by legislations that Dr Saraki and Dogara would have brought to bear. But how does the man who is supposed to lead efforts to make laws to ease our burden stay focused when he is being bombarded with litigations bordering on his integrity?

    First, his accusers said he did not fully declare his assets. People think everyone is as poor as church rats; otherwise, they would not expect a man like Saraki to fill in the form all that he is worth. I want to believe that such form could not even have had enough space to accommodate all that Dr Saraki owns. And as someone who does not suffer fools gladly, one of  Saraki’s lawyers has replied such people that his client was richer than Kwara State, his state of origin, ever before he became governor. In other words, he has remained a man of means and not a man of straw for the better part of his life. In spite of this illumination on Saraki’s worth, many are still wondering about where he got the money from. Do you ask a housewife how she got pregnant?

    Ordinarily, the reply that Saraki was born with silver spoon in his mouth should settle the matter, but no; his political detractors insist he must be docked. So, they dusted the book of iniquities and slammed the embattled senate president with alleged forgery of senate rules which his colleagues feel is a ‘family affair’ that should have been an internal matter of the senators and among like minds if it ever occurred.  Were Nigerians happy to see their Number Three Citizen in the dock at the Code of Conduct Tribunal looking like a trapped rat in the cubicle? I guess, no. Now, if those criticising the National Assembly for wanting immunity for their leaders were in the shoes of the lawmakers, what would they have done? Would they have folded their arms and allowed such ‘coup’ by Saraki’s enemies to succeed, thereby encroaching on the powers of the hallowed legislature? And, in case that happens, who is the ultimate loser? Is it not the average Nigerian? In a country like ours where political detractors are prowling like wounded lions and looking for what to devour, we should expect that our lawmakers to rise in defence of their own who is immensely popular among them, even if disliked by many Nigerians.

    Now, if I may ask, what is the problem with immunity and pension for Saraki and the others? I guess many Nigerians are unhappy with the proposal simply because Dr Saraki is involved. What does he need the money for? This is primitive accumulation, they say. But, this is something some people who entered public office in bathroom slippers and many more that got their first pair of shoes from the dunghill had enjoyed a long time ago and are still enjoying. Why then should we deny someone who has been used to taking Irish Cream right from the womb such a privilege? As we speak, Governor Ayodele Fayose of Ekiti State who has positioned himself as the erstwhile ruling party’s enfant terrible is enjoying immunity; otherwise, he would have ‘seen himself’ as we say in my place. For our National Assembly members to be asking for it only now shows how considerate they can be. Could there have been a better way to show patriotism?

    And, rather than show gratitude by quickly saying ‘aye’ to the proposals and even make it take retroactive effect, (I guess President Muhammadu Buhari would like that!) in view of its coming this late, we began to criticise the well-thought-out ideas. Now, many of our senators are angry and they are spoiling for war with the presidency. What do we stand to gain from this? These are people who have been magnanimous enough to ask for immunity and pension for their leaders only, whereas these are privileges that all members of the National Assembly ordinarily should enjoy if our legislators were as unserious, primitively greedy and insensitive as many of us think they are. We should imagine the immense benefits this country has got from the 8th National Assembly in spite of all the troubles their leader has gone through in the last one year, especially with the executive arm that does not want to accept the coordinate nature of the three arms of government.  We should think of the many laws they have made for good governance in the country; their labour of love and all. What else can a people desire form their elected representatives?

    The way things are going, many of these senators may begin to think of turning in their resignation letters, which one should expect when people who expected to be appreciated are deprecated.

    But I plead with the lawmakers who may be contemplating this unusual move, in the interest of their constituencies on whose behalf they rake in billions every year, to take it easy. I know they have endured a lot of humiliation; they have been called all sorts of names, but they should understand. Like short people who do not appreciate God in their lives, many Nigerians do not know how lucky and blessed the country is to have some of the people we have in our National Assembly today – the distinguished senators and honourables. We want to throw away a talented Nigerian just because he (allegedly) forged rules to clinch a plum position in the National Assembly. We are also calling another member of the assembly who has been accused of living big on depositors’ funds, and probably funding his business empire with the ill-gotten wealth (did I say ill-gotten wealth? sorry, I am already being unfairly judgmental like many ignoramuses out there) all kinds of names. These are people we should assemble in a place to serve as think tank for the Federal Government. Let’s even assume the one accused of forgery actually committed the crime, is forgery that easy? It requires some ingenuity. Not to talk of continuing to reap the fruits of the alleged crime one year after. That, if you ask me, is no mean task.

    Then the one accused of ‘bigmanism’ at the expense of depositors, and his ilk to follow in the next few days, or weeks; we also need their brains because it is not easy to do such a thing and get away with it for so long. I ndeed, I am beginning to see the sense in the observation by people who say the Buhari presidency does not have an economic team. As a matter of fact, the government is not deficient in economic team alone; it is also in acute shortage of teams in other vital sectors of governance. And the reason is simple: the government is sleeping and backing where it should be facing. The very National Assembly that President Buhari should turn to for evil geniuses (sorry, geniuses)  to form the teams he needs to turn things around is where he is staging a ‘coup’, with a view to throwing out those that should form the fulcrum of his cabinet. A government that is fighting corruption needs the brains of people who know how to play all the legal, academic, and economic gymnastics to delay corruption trials. If you like, you can begin to insinuate that it was because these people do not want to be interrogated for the crimes they (allegedly) committed that they are looking for immunity; that is your business.  Nigerians are adroit at insinuating. So, the government does not have to listen to them in this matter. Lest I forget, may I humbly nominate Governor Fayose to be co-opted into the think tank, after all, he enjoys immunity already.

    However, in making the best use of these people for national development, the Federal Government must first confirm that they actually possess the capacity to commit the crimes they allegedly committed before considering them as replacements for the people presently manning some of the important ministries; that is probably the cutting edge that they have over some of the present cabinet members.

    And in case President Buhari is still not persuaded that he should consider Saraki and Co. for cabinet positions; he should at least leave them in the National Assembly, facilitate granting of immunity and pension to them, to enable them continue the good works they are doing. They should be allowed to bring to bear their wealth of experience and knowledge in the service of the Fatherland. They need immunity so they won’t be distracted by unnecessary litigations, like the ones Dr Saraki is facing. Moreover, if we do not give them immunity, they too would not avail the nation the secrets of impunity, which we sorely need to deal with corruption at this point in time.

    Then the pension: how else do you compensate people who have gone through such thick and thin for the sake of law-making but by handsomely rewarding them hereafter?

  • Fayose: What manner of immunity?

    SIR: If Nigeria must survive as a sovereign entity governed by internationally acceptable best practices, Nigerians from all walks of life must agree to certain irreducible minimum on the issue of governance.

    There comes a time in a trajectory of a nation when its citizens must discountenance cleavages of primordial propensities and sectional irredentism and seek a patriotic middle ground. With the humongous amount allegedly traced to the account of Ekiti State governor, AyodeleFayose, one is nonplussed that some Nigerians could still belly ache on the clause of immunity to frustrate the investigation efforts of the anti-graft agency.

    In other climes, this type of heinous discovery is enough to provoke legislative activism and civil disobedience seeking the removal of any impediment to the investigation of the officials particularly the right of police or any investigating agency to freeze their accounts without violating prosecutorial immunity. If governors are constitutionally protected from prosecution, are they also insulated from investigation? Does the constitution interminably absolve them of any wrong doing irrespective of the right of the injured party which are citizens over which they exercise a term of office? Wouldn’t the rights of injured citizens be violated when investigation is delayed till the end of the term of the suspect governor? And wouldn’t it be logical to infer that any account under investigation be subject to some sort of restrictions?

    The civil society, the organized labour, students union and all lovers of propriety should rise in support of the federal government in the last ditch attempt to wean Nigeria from the cliff-hanger of governors  and other assailants using immunity to obstruct the development of Nigeria.

    For political rouble-rousers, I think the federal government has chosen to use Fayose as an archetype in sending a message to all the governors that immunity against prosecution is not the same as immunity against investigation. Whilst this remains another veritable money spinning prospect for permissive lawyers across the spectrum, it ought to represent a sad commentary in the annals of our nationhood and should generate sober reflection from counsels who cannot see beyond immediate gratification to contemplate a country envisioned for the next generation.

    President Buhari has chosen a path which may not politically correct as he has demonstrated patriotism on a bipartisan cadence not minding how governors in his party would be affected.

     

    • BukolaAjisola,

    Victoria Island, Lagos.

  • ‘There’s no immunity for impunity, electoral malfeasance’

    ‘There’s no immunity for impunity, electoral malfeasance’

    Activist lawyer Femi Falana yesterday x-rayed the ongoing debate on the freezing of Ekiti State Governor Ayodele Fayose’s Zenith Bank account by an anti-graft agency. In this article titled: “The limit of Mr. Ayo Fayose’s immunity”, the Senior Advocate of Nigeria (SAN), argues that there is no constitutional cover for a state’s Chief Executive Officer (CEO) involved in treasonable conduct and corrupt practices.

    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 Economic and Financial Crimes Commission (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 Gen. 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 (COAS) 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 (U.S.).

     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 (CJN) is empowered by Section 52 of the Independent Corrupt Practices and other Offences Commission (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 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 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.”

    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 Peoples Democratic Party (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 and which culminated in his emergence as governor, Mr. Fayose ought to be prosecuted for treason which arose from the electoral malfeasance.

  • ‘Proposal for immunity for Senate President, others self-serving’

    The Socio-Economic Rights and Accountability Project (SERAP) has condemned the demand by some senators for immunity and life pension for presiding officers of the National Assembly.

    The condemnation is contained in a statement issued yesterday in Abuja, by Mr Adetokunbo Mumuni, SERAP’s Executive Director.

    According to the statement, the call was a calculated use of legislative powers to alter the 1999 Constitution in their own favour, at the expense of millions of economically and socially disadvantaged Nigerians.

    It stated that SERAP’s statement followed the proposals by the senators at a two-day retreat on Constitution Review, organised by the Senate Ad Hoc Committee on Constitution Review in Lagos on Saturday.

    Among others, the proposals want President of the Senate, Deputy President of Senate, Speaker of the House of Representatives, and Deputy Speaker of House of Representatives to enjoy life pension and immunity.

    “Granting senators and representatives immunity and life pensions would neither enhance governance, accountability nor contribute to the betterment of Nigerians.

    “SERAP is worried that the proposal for life pensions is coming from some ex-governors in the National Assembly that continue to enjoy ‘pensions’ for serving as governors for eight years.

    “This is a gross injustice and double jeopardy for millions of Nigerian pensioners who continue to be denied the fruit of their labour in old age.

    “Nigerians will reject any self-serving attempt by the senators and representatives to tear up section 308 of the 1999 Constitution to grant their leaders immunity from prosecution for corruption and money laundering,’’ it stated.

    It says that SERAP will use all legal avenues nationally and internationally to compel the senators to drop the immunity and life pension proposals.

    SERAP urged the National Assembly’s presiding officers to refocus the Assembly to perform law-making functions in a manner that would rid the country of impunity for corruption and not embrace or tolerate it.

  • Amnesty: Don’t extend immunity to Senate President, deputy

    The anti-corruption crusade by President Muhammadu Buhari is at risk if the immunity clause is extended to the Senate President and his deputy, Legal dviser at Amnesty International, London, Kolawole Olaniyan, has said.

    He urged the President to move swiftly to dissuade members of the eighth National Assembly from taking forward the immunity initiative if his vision “to be remembered as a Nigerian president who fought corruption to a standstill” is to be effectively realised.

    Olaniyan, who gave the advice in a statement issued last week in London and titled, “Why Buhari can’t be tight-lipped over immunity proposal by the 8thNational Assembly” argued that it amounted to double standard for the lawmakers to make laws to regulate others while tearing up the constitution to be free of regulation themselves.

    Olaniyan,  who noted that the immunity initiative is coming on the heels of the trial of the Senate President, Dr. Bukola Saraki who is facing a 13 count charge of false assets declaration before the Code of Conduct Tribunal, argued that the proposal by the Senate is against United Nations (UN) convention on corruption and of which Nigeria is a signatory.

    “Extending rather than limiting immunity from prosecution for corruption involving parliamentarians is a licence to impunity and lawbreaking, which clearly isn’t compatible with good governance.

    “Parliamentarians promoting and granting immunity to themselves can only serve to launder the rule of the powerful rather than the rule of law. And it’s patently inconsistent with the United Nations Convention against Corruption to which Nigeria is a state party. The convention in fact requires Nigeria to achieve “appropriate balance between any immunities” and to “ensure effective investigation, prosecution and adjudication of corruption offences”.

    He explained  that part of making laws for good governance of the country is to serve the desire of victims of corruption for accountability, for justice, for dignity, and stressed that the members of the 8th National Assembly will be fulfilling their constitutional role by addressing as a central priority, the situation of victims of corruption including clearing the way through public hearings and progressive legislation that can provide legal standing and access to effective remedies for victims of corruption.

    “It is not by clinging to whatever will shield them from their perceived political foes that members of the 8th National Assembly will better perform their law-making role. And it doesn’t have to be at the expense of the fight against corruption. After all, there is always the judiciary and due process of law to take care of any perceived abuse of anti-corruption laws by the authorities.

    “If only members of the 8th National Assembly can grasp the thinnest slice of what victims of corruption experience they will re-think their proposal to grant their leaders immunity from prosecution for corruption.

    “As a law-making body whose primary duty it is to make laws for good governance, its purpose ought to be to rid the country of impunity for those who will commit high level official corruption, with a philosophy that doesn’t recognise immunity or give leeway to the most powerful or influential.

    “The 1999 Constitution (as amended) recognises the role of the National Assembly to “make laws for the peace, order and good governance of the Federation.” This suggests that when it comes to issue of corruption, members of the 8th National Assembly should worry less about their own interest and more about the citizens who are the real victims of corruption”, he posited.

    Olaniyan contended,  “what the National Assembly is doing is patently at odds with the ‘anti-corruption agenda’ of President Muhammadu Buhari and the ‘political change’ that Nigerians voted for. This is like taking Nigeria back to the middle ages. And it clearly undermines the rule of law as it portrays the lawmakers as being above the law”.

    Olaniyan argued that the immunity initiative looks like a revenge job, and one for self-aggrandisement stressing, “this is undoubtedly a low period in public esteem for our ‘lawmakers.’

    He emphasised that the success of President Muhammadu Buhari’s proclaimed fight against corruption hinges not only on his ‘integrity record’ or members of his cabinet but also the collective involvement of all branches of government, in particular the National Assembly and the judiciary

     

     

  • Still in Immunity Mode months into a change regime

    Ogunye demonstrated in a jargon-free interpretation that the election of Senators Saraki and Ekweremadu as president and deputy president of Senate was based on forged rules and thus need to be declared null and void, if deliberations under existing leadership of the Senate are to have integrity.

    Democracy is more than a political system; it is also a moral system. It is a political system which is characterized not by particular procedures, such as regular elections of government, but primarily by being based on certain fundamental moral principles. In a genuinely democratic society, the government’s policy must accord with those principles. And, furthermore, all social institutions must also be established and conducted within the same moral framework, which invariably includes equality, freedom, and respect for the rights of the individual.-A. V. Kelly

    By immunity in this piece, I do not mean the formal protection against arrest and prosecution of president, vice president, governor and deputy governor which those who occupy these positions enjoy in our country and which makes leaders of the executive branch of government the most powerful and protected political office holders in the world. I mean the general lack of respect for laws, rules, and conventions among those accorded legal immunity by the constitution and those that are not covered by such protection. In other words, I am using immunity in the sense of an individual’s or group’s belief that he or she can do anything without being answerable to the principle of equality before the law.

    It is intriguing that despite the fact that majority of Nigerians voted for General Buhari and the All Progressives Congress (APC) in the belief that the new president and his party would be in a better position to right the wrongs of the past under the regime of the People’s Democratic Party (PDP), the culture of business as usual is still thriving two months into the Buhari presidency. For example, the recent lucid analysis by Jiti Ogunye of the conduct of lawmakers in the National Assembly, particularly in the Senate illustrates how the culture of immunity and disregard for laws, rules, and conventions reigned on June 9 in the hallowed chambers reserved for regulating the lives of the nation and its citizens through establishment of the ‘Dos and Don’ts’ that in normal situations sustain modern polity and civilisations. Ogunye demonstrated in a jargon-free interpretation that the election of Senators Saraki and Ekweremadu as president and deputy president of Senate was based on forged rules and thus need to be declared null and void, if deliberations under existing leadership of the Senate are to have integrity.

    Even after the police have revealed in their own investigation that the rules cited by the Senate for its conduct on June 9 are products of forgery, senators in support of the outcome of the election still find it comfortable to warn the police and other security agencies against allowing themselves to be used to harass the Senate, senators, or their spouses. Put in other words, the senators are warning the police not to do their work: investigation and detection of crime and presentation of suspected criminals to the court of law for trial. Instead of showing qualms, senators involved in the election of officers in June now show bravado as they threaten law enforcement officials for attempting to perform their lawful duties. This attitude from 48 PDP senators and 35 APC senators signal disaster for change, if the other branches of government – the executive and judiciary – fail to act in defence and protection of the rule of law.

    Stealing of the country’s patrimony, particularly crude oil in the millions still took place until July 3, according to President Buhari’s recent statement. This is an indication that the lawlessness that characterised the last government was still in vogue even after a new president had been sworn-in. The courage of politically connected oil thieves during the last administration to engage in illegal bunkering even months after their principals had vacated power shows how ingrained the culture of impunity has become. What this signals is that there are collaborators in all sectors of the polity, including the nation’s security system who are still ready to work with economic saboteurs even under the nose of an anti-corruption federal government.

    Furthermore, using the media to deceive citizens through blatant lies that were a past-time of the administration in the last four or so years has not abated even two months into the new administration. For example, nobody in the country including those in power can say with certainty the exact location of the $15 million that was smuggled toward the end of Jonathan’s government to South Africa to ‘buy arms’ with which to fight the Boko Haram insurgency. As recent as last week, the South African High Commission was unable to confirm if the money had been returned to Nigeria. The South African envoy’s encouragement on July 23: “So, I advise you to check with the agency from where the money was released for the arms acquisition deal,” implies that the location of the money still remains unknown after several months of claim by the Jonathan administration that the funds had been returned to Nigeria.

    As we write this piece, many citizens are rejoicing that the crisis in the House has been settled with Dogara’s acceptance of the list of APC nominees for offices other than that of the Speaker. People are forgetting fast the issue that the election of House Speaker and Deputy Speaker was conducted outside the framework of the laws that guide such elections in the House. Many of such enthusiasts are saying that we need peace in the House to be able to embark on the crusade of change. How realistic is the optimism that the crusade for positive change can be facilitated by House officers who finally agreed to a compromise after being given a deadline to ‘do the needful’?

    It is not that actions and statements referred to in the paragraphs above had taken place in Nigeria that is a novelty in a country that had for decades become the poster child for political and bureaucratic corruption in the world. What is worrisome is that such unwholesome acts as conducting election in the federal legislature with forged rules; senators’ threatening of the police for planning to enforce the laws of the land; and solidarity messages from supporters of lawmakers purported to have used rules not known to the law smack of a growing tolerance for impunity under the nose of a regime of zero-tolerance for corruption.

    It is not the capacity of President Buhari to fight corruption with sincerity and vigour that is likely to be a problem, given his own strength of character. What is scary is the capacity of a Senate led by leaders elected on the basis of forged rules to constitute a stumbling block to Buhari’s efforts to clean the Augean stables the president has inherited from the preceding administration. A Senate with 83 senators that passed a vote of confidence in someone elected about one month ago and with the temerity to warn the police not to ‘harass’ their members seems to have sufficient numbers to frustrate policies and bills designed by the president and his party to fight corruption. It is not out of place to think that the current senate leadership is in a position, if adequate care is not taken, to disrupt good governance by instigating crisis that can disrupt the change agenda.

    The matter of election of senate leaders must not be left to compromise among party members, more so that police investigation has revealed that the election of such officers took place on the strength of forged Senate Rules. The executive and judiciary must not shirk in their own responsibilities on a matter that has been politically unsettling since June 9. This is the most appropriate time for the Buhari presidency to insist on equality before the law. If indeed there was forgery of Senate rules, those behind such forgery, regardless of their position in the polity and society, should be brought to book immediately.

    Citizens who want their mandate on change to be put to good use need to stand firm and give support to the executive and the judiciary when they act to protect the country’s constitution, especially its commitment to the rule of law, without which democracy cannot deliver good governance. Citizens must not leave protection of the moral system that subtends all viable democratic systems in only the hands of office seeking lawmakers.