Mr. Ayodele Fayose is one of the most popular political figures in Nigeria today. Not just because he is the Ekiti state Governor, but that he is one of the lone voices left to carry the cross of the erstwhile ruling Peoples’ Democratic Party (PDP). Mr. Fayose has taken it as his unpaid job to lead the opposition against the All Progressives Congress (APC) administration at the Federal level.
Since he took over his new role as the unofficial opposition leader, he has always been in the news, in many cases for the wrong reasons. If he is not insulting President Buhari, he probably is involved in not-so-noble activities like visiting China to speak to an imaginary audience on trade and investment. Even if the news does not find Fayose, Ayo will find the news. In some cases, Ayo will deliberately pay a full front page advertorial to celebrate the obituary of a living person. It can sometimes get so bad that Fayose, like the former Ugandan dictator Idi Amin Dada, will suddenly have a “dream” and go ahead to pay for a full page advert to release his “prophecies”.
Some days ago, Uncle Ayo, noticing his public ranking is on the low, caught the eyes of the media again. He went on strike, not because anyone owed him salaries, but because state workers were demanding their several months’ emoluments. To distract his people’s attention away from their problems, he saw that the Wife of the President, Aisha Buhari is too quiet to comfort, decided to pitch a battle with her. Like his media team came up with a “medical report” from a fictitious Ahmadu Bello Teaching Hospital (not the one in Zaria, maybe the one in Ikogosi), that General Buhari was ridden with cancer, hence ineligible to run and to validate one of his “prophecies”. He told us that one Aisha Buhari Mohammadu who is wanted for her role in US Congressman William Jefferson’s bribery scandal for which the American lawmaker was convicted in 2009. The rest, as they say, is history!
Mr. Fayose had on some days ago accused the Economic and Financial Crimes Commission (EFCC) of acting illegally in the case of the freezing of his Zenith Bank account. His primary argument was that since he enjoys constitutionally-guaranteed immunity from prosecution, as a siting governor, he is “immune” from investigation or probe by virtue of Section 308 of the 1999 Constitution. It only shows how things are improving for Governor Fayose. Let us forget that he once reportedly slapped a sitting Judge for daring to hear a case involving him!
Mr. Fayose’s supporters have gone all over to remind us that he has immunity. That appears to be their new national anthem. They recite it like nursery rhymes. But, what a minute. Where does immunity for Governors’ starts, and where does it end?
Before I go on, let me be quick to admit that I am not a lawyer, but I have no difficulty in interpreting the sacrosanct provisions of the 1999 Constitution and documents written in the English language (not Latin).
Governor Fayose by virtue of being a state’s Chief executive and one of the four categories of people covered by the said Section 308, he enjoys immunity under the Constitution. But, can that extend to his wife, his children, his nuclear or extended family members or his bank account? The fact that Fayose has immunity does not mean, for instance, that if his wife commits murder by virtue of being First Lady, she enjoys a “constitutionally-guaranteed immunity”. Is this the logic of that Constitutional provision?
Let us say that analogy does not convince some of us, because the question we are dealing with is the question of whether the EFCC can freeze Fayose’s account while he enjoys immunity as sitting state Governor. On this matter let us see what the Supreme Court decided in the case of Fawehinmi V. Inspector General of Police (2002). In delivering the leading judgment of the seven-man panel of the Supreme Court on Friday 10th day of May, 2002 on whether a governor can be investigated, 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 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. 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? The police clearly have a duty under section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available.”[see Fawehinmi V. I.G.P. (2002) 7 NWLR (Pt. 767) 606] (Emphasis mine).
A simple look at this landmark Supreme Court judgment leaves me with two conclusions: 1) Immunity clause has its own limit(s) in relation to criminal investigations by a law enforcement agency, in this case, the EFCC. 2) Fayose’s Zenith Bank like his nuclear or extended family members are NOT covered by his immunity as a sitting Governor.
My candid advice to Governor Fayose and his advisers is to explore the possibility of a judicial solution, if he has any explanation whatsoever to do. Resorting to self-help, by creating a scene out the matter, leaves him only worse off than he was before. On its own part, the anti-graft agency must avoid all temptations for high-handedness in handling matters of such nature so as not to be seen to be too partisan. I simply submit!