₦airaland Forum

Following the recent unconstitutional freezing of Gov. Fayose's account by the EFCC and reactions of Nigerians, I just cannot help but express my disappointments at Femi Falana (SAN) who is seen as an afront member of this honorable cum noble legal profession, misconstrue the provisions of section 308 of the Constitution as well as the ruling of the Supreme Court in the case of Chief Gani Fawehinmi vs. Inspector General of Police (2002) 23 WRN 1, while speaking on the "Limits of Executive Immunity" in Benin, on the occasion of the 60th birthday of Prof. Julius Ihonverebe, Secretary to the Edo State Government.

Mr. Falana opined that Nigeria has passed the dispensation of absolute immunity enjoyed by top-ranking members of the executive as enshrined in the 1999 constitution. He further said regardless of who was involved, President Muhammadu Buhari, his Vice, Prof. Yemi Osinbajo, Governors and their Deputies who committed criminal act can be arrested while in office and taken for trial.
This assertion is not only inconsistent with the constitution which is the grun norm and supreme, but insensitive, misleading, unpatriotic, counterproductive and a drift from the rule of law he advocates.

A cursory look at section 308 of the constitution provides thus:

308 (1) Notwithstanding anything to the contrary in this constitution, but subject to subsection (2) of this section-

(a) no civil or criminal proceeding shall be instituted or continued against a person to whom this section applies during his period in office;

(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice President, Governor or Deputy Governor; and the reference in this section to period of office is a reference to the period during which the person holding such office is required to perform the functions of the office.

The law is clear and unambiguous in that, paragraph (a) of subsection (1) prohibits the institution or continuation of any civil or criminal proceeding against the person of the President, Vice President, Governor or Deputy Governor. The implication of this section is that, where a person is facing trial before any court and prior to the pronouncement of the court as to the guilt or acquittal, such person becomes President, or Vice President, Governor or Deputy Governor, the court is bound to discontinue trial of such person pending when such person ceases to hold such office.
Paragraph (c) of subsection (1) is to the effect that an application, whether by a single person or a law enforcement agency requiring or compelling the appearance of the President or Vice President, a Governor or Deputy Governor shall not be made to any court, and where such application is made, it will not be issued by any court.

Mr. Falana, in his assertion depended solely on, but misconstrued the Supreme Court's ruling in Chief Gani Fewehinmi vs. Inspector General of Police on the issue of immunity when the court stated 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."

This ruling does not contemplate arrest or prosecution of such person, but merely gives the right to fact-finding of any such crime or offence alleged which may be used by the House of Assembly for impeachment or for prosecution by the police only when such person no longer holds such office section 308 of the constitution confers immunity on prosecutional restriction.
It is not out of place to investigate Gov. Fayose, but to freeze his account is a gross violation of constitutional provisions. The law allows investigation but does not permit execution of an action against the person of Fayose in the course of investigation. The question is simple, "Can the EFCC freeze President Muhammadu Buhari's account on any ground?" Not even the courts will issue such order. It should be noted that the same immunity enjoyed by the President is what a Governor enjoys.
To state the obvious without an atom of sentiment, this is a move informed by impunity and disregard for the rule of law witnessed in this administration.

If Falana is so sure of his assertion, why then has he not called for the arrest and prosecution of President Muhammadu Buhari who presented to Nigerians, a Statement of Result he sat for in 1961 bearing the Ministry of Education Katsina, a passport photo in 1961 revealing the present aged Muhammadu Buhari. What could be more criminal and fraudulent?

I therefore urge Mr Falana to look beyond political lines in adressing national issues especially in a time when the unity, peace and democracy in Nigeria is threatened.

Is falana mentally alright?

Falana Don dey mad ooo

Is that not the Same SAN that went to defend Buhari's certificate forgery in court?

Na so madness dey start

Civil proceedings, and not criminal proceedings. Get it clear. EFCC does not institute civil proceedings

989900E:
There is no such thing as absolute immunity, and our constitution rightly foresaw the abuse of power inherent in human nature, hence the clauses above.

Then we have the small matter of immunity not covering electoral related cases.

Any other informed interpretation is welcome.

You sure say u go skul at all？Civil or criminal proccedings, which one does EFCC undertakes？u even see ‘nominal party’ for weti u quote, is Ayo Fayose a nominal party in the case the so-called EFCC is pursuing against him？una impunity and bastardization of d constitution go finish dis country soon！

As for integrity challenged Falana, weti him dey fine him go see am in dis country

E be like say this our Falana like to dey enjoy Ekiti weed for one corner of him house for lagos.