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 a doubt. In dismissing the lawsuit, 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 resulted in 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 men 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 Nigerian Army
panel have been corroborated by Mr. Fayose's campaign manager,
Dr. Tope 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 in 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
the 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 cooperate fully 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 immune
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.”
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 an 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.

http://www.saharareporters.com/2016/06/22/limit-gov-fayoses-legal-immunity-femi-falana

Fayose

Please mr femi falana continue to educate the wailing wailers that love to wail.

.

O my God! Fayose is finished. Fayose you see your life?

Femi Falana is undoubtedly a shameless and irresponsible lawyer, no apologies. A so-called social critic who often sacrifice decency on the altar of parochialism and petty politics. He has shown times without number his uncanny hatred for the person of Fayose but must he turn logics on its head by twisting sections of the constitution to give substance to his fallacious dispositions? For the avoidance of any doubt;

1. Section 308 of the Constitution clearly says a judicial proceeding be it civil or criminal CANNOT be instituted against a sitting President, VP, Governor and Deputy Governor.

2. The EFCC Act allows officials in (1) above to be investigated while in office but forbids actions that lead to prosecution including Freezing of their Accounts/seizing their assets.

3. There's is a clear difference between investigating and placing embargo on account been investigated by way of freezing. An account can be investigated without been frozen.

4. Section 28 of the EFCC Act allows the Account of accused individuals WHO HAVE BEEN ARRESTED to be frozen. In this index case, Fayose was neither arrested nor placed on restricted movement. In fact, Section 308 forbids EFCC or any other law enforcement agent from taking such step against Fayose. Therefore, on what ground did the EFCC hing its decision to freeze Fayose's account?

I am not a lawyer but if placed side by side with Femi Falana, I will rub his legal robe in the mud. He's such a double-mouthed and unstable personality.

OLADD:
Femi Falana is undoubtedly a shameless and irresponsible lawyer, no apologies. A so-called social critic who often sacrifice decency on the altar of parochialism and petty politics. He has shown times without number his uncanny hatred for the person of Fayose but must he turn logics on its head by twisting sections of the constitution to give substance to his fallacious dispositions? For the avoidance of any doubt;

1. Section 308 of the Constitution clearly says a judicial proceeding be it civil or criminal CANNOT be instituted against a sitting President, VP, Governor and Deputy Governor.

2. The EFCC Act allows officials in (1) above to be investigated while in office but forbids actions that lead to prosecution including Freezing of their Accounts/seizing their assets.

3. There's is a clear difference between investigating and placing embargo on account been investigated by way of freezing. An account can be investigated without been frozen.

4. Section 28 of the EFCC Act allows the Account of accused individuals WHO HAVE BEEN ARRESTED to be frozen. In this index case, Fayose was neither arrested nor placed on restricted movement. In fact, Section 308 forbids EFCC or any other law enforcement agent from taking such step against Fayose. Therefore, on what ground did the EFCC hing its decision to freeze Fayose's account?

I am not a lawyer but if placed side by side with Femi Falana, I will rub his legal robe in the mud. He's such a double-mouthed and unstable personality.

U can't even compete with his shadow with ur shallow comprehension issues abeg!

Re-read d article for better understanding!

"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) "

ashjay001:



U can't even compete with his shadow with ur shallow comprehension issues abeg!

Re-read d article for better understanding!

"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) "

If you choose to be deceived by politicians who parade themselves as legal luminaries or social critics, that's your headache. Section 28 of the EFCC Act can only be invoked WHEN AN ACCUSED IS ARRESTED AND HIS ASSETS IS THEREAFTER SEIZED. The question is; was Fayose arrested for any criminal act? As far as the Ekiti election is concerned, justice has been served on all concerned parties through the tribunal. If Buhari and Falana want to constitute their own tribunal for retrial, good luck to them. This is not about Fayose but the law must not be trampled upon to score cheap political points or settle scores. No legal proceeding can be instituted against a sitting governor. Simple.