A Senior Advocate of Nigeria (SAN) and
constitutional lawyer, Mr. Mike Ozekhome, has said the human rights activist ,
Mr. Femi Falana, was wrong on his position that the Nigerian constitution
cannot guarantee absolute immunity against criminal prosecution for governors,
deputy-governors, president and vice-president in the country.
Falana had, during a paper entitled: The Limits
of Immunity Clause’, he delivered at the sixth birthday of the Edo State’s
Secretary to Government (SSG), Professor Julius Ihonvbere, said that the money
Laundering Act and Economic and Financial Crimes Commission (EFCC) Act as well
as the international criminal court laws do not give absolute immunity to
governor Fayose against criminal prosecution, adding that the EFCC was toeing a
legitimate path by freezing the governor’s accounts and thereafter obtain an
court order against his bank. But Ozekhome said Falana goofed on these areas
and defended his position accordingly. The senior advocate who heads governor
Fayose’s legal team against the EFCC at the Federal High Court, Ado-Ekiti,
spoke to journalists yesterday in Ado-Ekiti, saying: “Falana made three points
on the matter and I totally disagree with him. He said that you can institute a
legal process against governors because they are also sued during election
petitions.
“And I disagree with him on that because election
petitions are generic, they are generic because they are in a class of their
own. They are a hybrid, neither civil or criminal procedures. That is why it is
the constitution itself that gives the right for a governor to be sued when
they are challenging his mandate; it is not the lower laws like an Act of
parliament like EFCC. “EFCC is an act of parliament which is millions of miles
lower than the provisions of the constitution. And any provision from the EFCC
Act or money laundering Act which is inconsistent with the provision of the
constitution is null and void by nature of section 1, sub-section 3 of the same
1999 Constitution, “ he said. Arguing further, he said: “It is the same
constitution in section 308 that says that when it comes to civil or criminal
procedure, you can never sue the governor and such should not be entertained in
any court of law.
“Falana also said that the Money Laundering Act
can also apply against a sitting governor that is wrong. The Money Laundering
Act is an act of the parliament which is as low as the EFCC Act and the two of
them must bow down to the Kabiyesi (Lord) of our laws which is the 1999
constitution (as amended in 2011) And that constitution in its section 308 says
that whether under the money laundering Act or the EFCC Act, you cannot move
against Fayose or any other governor, vice-president or President or
deputy-governor.
“The third point by Falana that immunity is not
total has been debunked because section 308 of the constitution overrides all
the Acts of parliament such as the Money Laundering and EFCC Act. He also said
that governors of Nigeria are not immune from the procedures of the
international criminal court, of course that is outside the jurisdiction of
Nigeria. “So, none of all the arguments Falana has canvassed therefore can show
that immunity can be watered down.
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