I have been challenged by friends based on the decision of the SC in Fawehinmi v. IGP and also based on an article written by Inibehe Effiong, a brilliant legal mind without a doubt.
On Fawehinmi v. IGP, the bottomline of that case is that a sitting Governor can be investigated and I already EXPRESSLY stated that in my update.
However, not all powers of purported investigation can be exercised on a person with constitutional immunity.
I will address this under my response to Inibehe’s article.
Inibehe juxtaposes section 34 (1) EFCC Act relating to the powers of EFCC to freeze any account under investigation with section 308 of the Constitution and here is my take. (Those interested in the article can check his page or SaharaReporters) If I have the time, I will do a short rejoinder.
Before EFCC can exercise its power to freeze an account, it must first apply to court ex parte. Meaning an order of the court is required, without the presence of the defendant.
Inibehe rightly concluded that without an order of the court, the power cannot be exercised, we can both agree on this point, so no controversies.
There is nothing in public place to show that EFCC sought that order before freezing the account. Not even the spokesperson of EFCC alluded to that, he merely arrogated the powers to his agency under investigation.
Where I disagree with Inibehe is with regards to the effect of Section 308 vis a vis Section 34 of the EFCC Act.
There are three subsections attached to Section 308 (1) of the Constitution and each is designed to achieve different objectives.
Inibehe concluded that since a Governor is not required to appear in court before the account can be frozen, no immunity clause of Section 308 has been violated, I beg to disagree.
One, Section 308 (1) (a) clearly states as follows:
“NO CIVIL or criminal PROCEEDINGS SHALL be instituted against a person to whom this section applies during his period in office”
There you have it! Is an Ex-parte motion not a civil / criminal proceeding whether the Governor appears in court or not? The answer is yes it is.
This provision is violated the moment that proceeding is instituted!
What Inibehe did was to mix up subsection 1 (a) with subsection 1 (c). The latter talks about compelling the appearance of a Governor. These are two distinct provisions designed to serve two different purposes.
I guess Section 308 (1) (a) is the reason EFCC couldn’t head to court before freezing the account. They did it with impunity anyway.
What EFCC did violated the letter of Section 34 (1) of EFCC Act that requires a court order to freeze an account. If they actually did, the constitutional right of Fayose as a sitting Governor is violated under Section 308 (1) (a) of the Constitution.
When his account got frozen and he may be compelled to defend that right in court as a sitting Governor, the spirit of Section 308 (1) (c) is violated.
Either way, the act is illegal.