Faulting Falana’s Legal Opinion On The Freezing Of Governor Fayose‘s Account By The EFCC, By Akobe, Solomon Onunoja

On Monday, the 20th day of June, 2016, the news went viral that the personal bank account of the incumbent Governor of Ekiti State, Ayodele Fayose was frozen by the Economic and Financial Crimes Commission (EFCC). Upon hearing  this breaking news, I was tempted to immediately consult my pen and paper in order to pen down my legal opinion on same but a second thought cautioned me to hold my peace so as to see the reactions of others first.

Now, much have been said and or written in support and against this unprecedented action of the EFCC. Governor Fayose first cried foul but the EFCC rebutted same with the defence that it was done in the course of its investigations wherein an alleged sum of the NSA fraud money was traced to his (Fayose’s) account. They claimed that the fund was used to sponsor the election that brought Fayose into office as the Governor of Ekiti State. Fayose on his part, released a statement, detailing how his election campaign was sponsored, which according to him, had no connection with the alleged NSA money.

On the above premised facts, lawyers and non-lawyers wrote. While non-lawyers expressed their layman’s view on the issue, lawyers expectedly, wrote their legal opinions in support and against the same; some humbly, others authoritatively. But this was not surprising to yours sincerely. However, what became surprising was the statement released by Mr. Femi Falana (SAN), who is seen by many as a renowned constitutional lawyer and human right activist. In the said statement, Mr. Falana justified the EFCC’s action as being legal. He berated Mr. Fayose and described him as a serial looter. I shall return to this later.

Be that as it may, let me begin by saying that lawyers are ministers in the sacred temple of justice. It is the sacred duty of legal practitioners to express their legal opinions not in distortion of the provisions of the law but in conformity with its intendments and essence. Lawyers like judges, must never be cowed down by the political powers that be or allow political affiliations and or considerations to becloud their professional judgment when dealing with important national issues like the present one.

Essentially, the whole debate centers on the immunity clause as provided by section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the judicial decisions in respect thereof on one hand, and the powers of the EFCC to attach a property and or freeze an account under section 28 and 34 of the EFCC Act respectively on the other hand. Ordinarily, I do not find section 28 of the EFCC Act relevant so as to form part of this discourse but for Mr. Falana’s legal opinion which was entirely built on same, I shall dwell much more on it later.

Thus, in faulting Mr. Falana’s legal opinion on this issue at hand, I have formulated two crucial questions to wit:

(a) Whether it was right in law for the EFCC to have frozen Governor Fayose’s personal account without first obtaining an order of the appropriate court.

(b) Whether an order of the court to freeze the personal account of Governor Fayose can be validly sought and obtained in view of the provisions of section 308 of the 1999 Constitution.

Let us consider them seriatim:

Whether it was right in law for the EFCC to have frozen Governor Fayose’s personal account without first obtaining an order of the appropriate court.

Based on Mr. Falana’s legal opinion, this question should be answered in the affirmative.  He was reported to have said that the senior lawyers who had questioned the freezing of Fayose’s account on the ground that the EFCC did not obtain a court order had not read section 28 of the EFCC Act thoroughly. After reproducing the provisions of section 28 of the EFCC Act, Mr. Falana concluded by saying that the freezing of Governor Fayose’s account was in order because “the law permits the EFCC to freeze an account or attach a property of a criminal suspect and proceed thereafter to obtain an exparte order from the appropriate court”.

With all due respect, I think it is rather Mr. Falana that has not read section 28 of the EFCC Act thoroughly. Now, section 28 of the EFCC Act provides:”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” (emphasis mine).

A careful consideration of the above provision without more will show that it talks about tracing and attaching all the assets and properties of “a person arrested”. Flowing from the same is the irresistible conclusion that Governor Fayose being not a person that can be “arrested” in the light of section 308 of the 1999 Constitution, cannot come under the coverage or purview of section 28 of the EFCC Act as posited by Mr. Falana (SAN). For the avoidance of doubt, section 308 (1) (b) of the 1999 Constitution provides thus: “…a person to whom this section applies shall not be arrested or imprisoned during that period in pursuance of the process of any court or otherwise” (emphasis mine). Section 308 (3) further provides: “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” (Emphasis mine).

By the above constitutional provisions, and contrary to Mr. Falana’s opinion, Fayose as an incumbent Governor of Ekiti State, cannot be arrested in the first place for the issue or question of “attaching his property or freezing his account before obtaining an order of the appropriate court” to arise. The main subject of section 28 of the EFCC Act upon which the whole provision centers is “a person arrested”, and Governor Fayose, by law, does not come under this category of persons until he leaves office as the Governor of Ekiti State.

Thus, based on the foregoing analysis, it goes without saying that section 28 of the EFCC Act (which Mr. Falana claimed had not been read thoroughly by the senior lawyers who questioned the legality of freezing Fayose’s account without an order of the court), is not only irrelevant to the present discourse in view of section 308 of the Constitution, but also irreconcilable with common sense. I therefore, answer this first question in the negative although I shall still throw more light on it later.

However, if there is any section of the EFCC Act which seemingly appears applicable to Fayose as a Governor, it is the provision of section 34 of the Act. A consideration of this section would invariably take us to the second issue, that is:

Whether an order of the court to freeze the personal account of Governor Fayose can be validly sought and obtained in view of the provisions of section 308 of the 1999 Constitution.

While I quickly answer this second question in the negative, I shall appraise the same from two different perspectives.

Firstly, it is my humble view that section 34 of the EFCC Act just like section 28 of the same Act considered above, does not apply to persons covered by the provisions of section 308 of the 1999 Constitution. It is worthy of note that Part V of the EFCC Act runs from sections 27 to 34. The said Part is generally headed or titled: Forfeiture of Assets of Persons Arrested for Offences under this Act” (Emphasis mine). Glaringly, the targeted group of persons in this Part V of the Act is ascertainable from the phraseology (which Falana appears to have neglected): “Persons Arrested”. The implication of same is that the provisions of all the sections under the said Part can only apply to no other but “persons arrested”.

Interestingly, the brandished sections 28 and 34 of the EFCC Act fall under the above analyzed Part V of the Act. Thus, based on the above analysis, the scope of their application is obviously restricted; they do not apply to “persons not arrested” like Governor Ayodele Fayose. The rule of interpretation sustaining this firm view is expressed in the Latin maxim: Expressio unius est exclusio atterius, which is literally translated to mean that those not expressly mentioned are excluded, or put in another way, the express mention of a thing excludes the other(s). See A.G Fed. v. A.G Abia & 35 Ors (2001) 7SC [Pt.1] 94; African Ivory Ins. Co. Ltd v. Commissioner of Insurance (1998) 1 NWLR [Pt.532] 50. It therefore follows without saying that for the very fact that Part V of the EFCC Act mentions “persons arrested”, other categories of persons are mutually excluded.

Obviously, the draftsman of the EFCC Act never contemplated the attachment of asset(s) and or the freezing of the bank account(s) of persons protected by the provisions of section 308 of the EFCC Act. This perhaps explains the reason why Part V of the Act which provides for the attachment of properties as well as the freezing of bank accounts restricted or narrowed down the same to “persons arrested”, knowing full well that persons covered by section 308 of the Constitution cannot be arrested say more of attaching their properties or freezing their accounts while they remain under such immunity.

To my humble mind, the EFCC understood this legal barrier and that was while it decided to shortchange the court by freezing the personal bank account of Governor Fayose without the order of the Court, which ceteris paribus, would not have been granted by any court worthy of its name, more so as it is a clear case of political witch-hunting by the powers that control the center!

From the second point of view, I would say, assuming without conceding that section 34 of the EFCC Act applies to persons protected by section 308 of the Constitution, the provisions of the former would in my humble view, be inconsistent with that of the latter and thus null and void to the extent of its inconsistency by virtue of section 1 (1) (3) of the Constitution.

By section 308 (1) (a) of the Constitution, “…no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period in office”(Emphasis mine). This provision absolutely bars all form of proceedings against the persons covered by the section in their personal capacities save in limited exceptions like election petitions. See the case of Paul Unongo v. Aper Aku (1985) 6 NCLR 262 CA; and Falae v. Obasanjo (1999) 4 NWLR [Part 599] 476 CA.

The crucial question for determination now is whether an exparte application to attach a property or freeze an account made to an appropriate court qualifies as either civil proceedings or criminal proceedings? Essentially, the purpose of making an exparte application to the court as provided by section 34 of the EFCC Act is to obtain an “order” of the court to freeze an account of a person arrested and or facing corruption charges. An order so obtained qualifies as a “decision” of the court by virtue of section 318 (1) of the Constitution. The decision of a court is not given in vacuum but in relation to the proceedings (civil or criminal) before it. Thus, assembling the foregoing analysis on one table, it is straightforward to assert that exparte application by which an order to freeze an account is granted amounts to court proceedings. But, is such proceeding civil or criminal? In my humble view, although same is made in relation to a criminal allegation of corruption, the exparte application and the order of the court so obtained do not come under criminal proceedings but certainly civil proceedings.

Accordingly, since the same qualifies as civil proceedings and section 308 forbids inter alia, civil proceedings from being instituted against the persons protected under the section, the unconstitutionality of the freezing of Governor Fayose’s account whether with or without the order of the court, is without more, visible even to the blind!

Let me at this juncture state that I do not disagree with Mr.Falana as well as other lawyers who share the same view that Governor Fayose and other persons covered under section 308 of the Constitution are not shielded from criminal investigation even while in office. That was what the Supreme Court held in the famous case of Chief Gani Fawehinmi v IGP (2002) 7 NWLR [Pt. 767] 606 SC. However, I must caution that one must appreciate the extent to which such investigation can go in view of section 308 of the Constitution. It is very instructive to note that the apex Court in that case made a distinction between “criminal investigation” and “criminal proceedings”.

Thus, whereas criminal investigations of persons protected by section 308 of the Constitution are allowed going by that decision, court proceedings, be it civil or criminal, against the same are prohibited.

In understanding this latter point, the decision of the Court of Appeal quoted by Wali, JSC (at age 692, paras. F – H) in the same case of Fawehinmi v.IGP (supra), becomes apposite and same goes thus: “It seems to me that the use of the noun “proceedings” after ‘civil or criminal’ make it very clear and incontrovertible that what the draftsman had in mind was proceedings in court. Proceedings in that context mean the proceedings in a civil or criminal court or tribunal”.

To this extent, Governor Ayodele Fayose and his assets, although protected by section 308 of the Constitution can be investigated by any law enforcement agency like the EFCC in this case. However, just as I have earlier posited, there is a limit to which such investigative process could go: it cannot lead to the invitation of Governor Fayose for interrogation or give rise to Court proceedings, civil or criminal while he is still in office. In the words of the Supreme Court per Wali, JSC: “Notwithstanding the interpretation above, it must not be assured that a blanket authority is given to the police to question the officer mentioned in section 308 (3) while in office no matter how strong such evidence might be against him. Such evidence must be kept in the cooler until such time the officer vacates the office” (at p.693, paras. A –B)

The purpose of the immunity clause provision was ably stated by the Supreme Court in that case per Kalgo, JSC at page 699, paras. G – H, thus: “I think the main purpose of section 308 of the 1999 Constitution is to allow an incumbent President, Vice-President, Governor or Deputy Governor mentioned in that section a completely free hand and mind, in the performance of his or her duties and responsibilities whilst in office, so that no encumbrances may be placed in his or her way in the execution or performance of the public duties and responsibilities assigned to the office which he or she holds under the Constitution” (Emphasis mine)

Flowing from the above, the important questions therefore are: Can Ayodele Fayose, the incumbent Governor of Ekiti State be said to be having “a completely free hand and mind” in the performance of his public duties when his personal bank account is frozen by the EFCC?  Does the freezing of Fayose’s account not amount to “placing encumbrances in his way” in the execution or performance of his public duties and responsibilities as the executive Governor of Ekiti State? I answer the foregoing questions in the negative and affirmative respectively.

It therefore follows that since an exparte application for an order of the court to freeze an account would, based on our earlier analysis amount to civil proceedings, the same cannot be validly made and obtained against Governor Fayose, being a person covered under section 308 of the Constitution even though he is not protected from criminal investigation, as that will in essence constitute encumbrance to the performance of his duties as a Governor and or not giving him a completely free hand and mind in the performance of his public duties.

But one may wonder on what may be the usefulness of such criminal investigation(s) of persons covered by section 308 of the Constitution without the right of commencing an action in court? The Supreme Court in that case had outlined them thus: (a) It can be used to commence impeachment proceedings against the person while in office (b) It can be used against him in subsequent election campaigns (c) Evidence obtained during the investigation can be preserved for his eventual prosecution after leaving office.

Before I conclude, it is very important I express my displeasure over some irrelevant cases cited by Mr. Falana (SAN) while justifying the freezing of Fayose’s account by the EFCC. The learned silk cited cases like Obih v. Mbakwe, per Eso, JSC; Turaki v. Dalhaltu, per Oguntade, JSC; and Alliance for Democracy v. Peter Ayodele Fayose, per Okunola, JCA, and submitted that a person like Fayose, even though protected by section 308 of the Constitution, can be prosecuted while in office where the legitimacy of his election is being questioned or challenged.

With all due respect, I have read all those cases cited by Mr. Falana and I can confidently say that they have no bearing or relevance to the issue of freezing an account of an incumbent Governor like Fayose. The basic principle of law in those cases is to the effect that where the election of a person covered by section 308 of the Constitution is being contested before an election tribunal, the issue of immunity clause cannot avail him so as to prejudice the election petition being instituted against him in his personal capacity. This was why I earlier stated that election petition is one of the known exceptions to the immunity clause provisions under section 308 of the 1999 Constitution. Obviously, it is not Fayose’s election that is being contested or challenged but the constitutionality of the freezing of his personal account by the EFCC. I personally wonder, nay, shudder why Mr. Falana swerved into the concept of “election legitimacy” which is totally unconnected with the issue of the freezing of Fayose’s account.

I do not want to say more on Mr. Falana’s legal opinion on the freezing of Governor Fayose’s account save to condemn his description of Fayose as a “serial looter” in the said legal opinion released by him. With all due respect, this unbridled use of tongue by not just a human right activist of which Mr. Falana claims to be one, but a respected Senior Advocate of Nigeria, leaves much to be desired. Describing Fayose a as a “serial looter” under the guise of giving his (Falana’s) legal opinion on the freezing of the former’s account, violently negates the constitutional presumption of innocence which is in favour of Governor Fayose as guaranteed by section 36(5) of the Constitution. Mr. Falana can only do that legally if Fayose has been tried by a court of law and convicted for “serially looting public money” as alleged by him. But Mr. Falana with all due respect, is not a court of law, and thus, it is very unfortunate that he allowed his personal hatred for, and or skirmishes with Governor Fayose, becloud his professional judgment. That is not the desideratum of the members of our noble profession!

Conclusively, I would say, that having regard to all the analysis made above, the freezing of Governor Fayose’s personal account is not only illegal but also unconstitutional in view of section 308 of the 1999 Constitution. It is a suicidal attack on our nascent democracy with a clear picture of the dethronement of our hitherto cherished rule of law and the enthronement of a dictatorial regime. Thus, if an order of the court was obtained by the EFCC before the freezing was done, it must be blamed on a despondent Judiciary which is cowed down at the moment, but if no court order was obtained at all as alleged, then it must be regarded as one of the “biggest achievements and priorities” of the vendetta-government of President, nay, General Mohammed Buhari!

(Akobe, Solomon Onunoja is an Ibadan-based Lawyer from Agbokete, Kogi State)

(akobe4onu@gmail.com)