The Economic and Financial Crimes Commission (EFCC) has recently said it cannot immediately yield to calls to investigate Governor Abdullahi Ganduje of Kano State, who is accused of receiving millions of dollars in bribe, because Mr Abdullahi enjoys constitutional immunity from criminal proceedings.
During a tweet meet organised by Tap Initiative for Citizens Development, the EFCC posted on its Twitter handle that “the governor is still serving and constitutionally is covered by immunity. Being that as it may, the matter is in the instance sub judice”.
First, the deliberate decision of the EFCC to overlook Ganduje in the face of stormy allegations and embarrassing videos by way of refusing to investigate him is worrisome and disturbing. Since issues are already arising from the rather unacceptable argument of the EFCC — that immunity clause is what will make them not investigate Ganduje until he’s out of office — the need to shed light on the true position of law on immunity clause and to determine whether its invocation will preclude EFCC from investing a sitting governor remain sacrosanct; for the sake of the future and our democracy.
The position of the law is clear on the general nature of immunity clause and the power of concerned agencies to investigate. Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (herein referred to as ‘1999 Constitution’), which is the supreme law of the land, provides for immunity clause which covers the President, Vice-President, Governors and their Deputies, thus:
(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –
(a) No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of 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.
The above section is so clear and explicit that it takes little or no law experience to understand the purport of the proviso. In BOLA TINUBU V. IMB SECURITIES PLC (2001) 16 NWLR (Pt. 730), it was explained that the purpose of immunity clause is to prevent the concerned executives from being inhibited in the performance of their executive functions by fear of civil and criminal litigation. The clause, therefore, has prevented governors, in this case, from arrest or any criminal prosecution whatsoever.
However, the beauty of the law is: there are no rules without exception(s). Similarly, the provisions of Section 308 of the 1999 Constitution is not one without exceptions. One major exception to immunity clause is that although the governor cannot be prosecuted or arested, he can be investigated pending the expiration of his office term.
In the popular case of GANI FAWEHINMI V. IGP (2000) 1 WRN 90, the Supreme Court held the phrase “civil or criminal proceedings” used in Section 308 (supra) not to include investigation from police and other security agencies like the EFCC and ICPC. It reasoned that although a governor cannot be arrested or prosecuted, he can be investigated when allegations arise pending the time he leaves office. The court further explained that the findings of the investigation against a governor can even be a ground for his impeachment.
My Lord, Uwaifo JSC (as he then was), was of the view in the case that: “The court below, while recognising that the functionaries protected under section 308 of the 1999 Constitution could not be arrested, imprisoned or prosecuted, observed that that section was not intended to completely shield them from investigation of an alleged crime. The views were expressed that (1) the police could conduct their investigation up to a point that would not amount to a breach of section 308; (2) the investigation would need to be discreet and could be overt or covert; and (3) when the investigation is concluded as far as it is possible to go, and the allegation or the commission of a crime appears supported, the police must remember that they cannot proceed further to the stage of arrest. I have no doubt in my mind that the court below correctly understood and stated the effect of section 308 of the Constitution on police duty to investigate the allegation or commission of crime by persons protected there under.”
Impressively, the EFCC also has inherent power to investigate allegations like this by virtue of Section 6 of the EFCC Act.
Having established the position of law on EFCC’s power to investigate a sitting governor, it will be instructive to state that the EFCC is being insincere when it based the reason for refusing to investigate Ganduje on immunity clause. All enabling laws are against EFCC’s position and have pointed to the fact that EFCC has the right to investigate Ganduje, a sitting governor. It is safe to therefore say that the EFCC is only being economical with the truth and the excuse given is so lame that it can only be told to the marines.
Then, why is the EFCC being insincere? Why is it not stating the true reason for their refusal to investigate? Why use an obviously erroneous legal position? Any cockroach in its cupboard?
Before giving answers to these posers, it need be stated that the EFCC in this instance is only not being sincere with itself. Nigerians are too wise to be deceived with cheap excuses. In the not too recent past, the EFCC had investigated sitting governors when allegations like that of Ganduje arose — with no immunity clause excuses. Ayodele Fayose, the erstwhile Governor of Ekiti State is a very good example. The EFCC investigated him almost throughout the period he served as governor; that he was invited and arraigned to court few days after he left office. Despite immunity protection on Fayose, the commission even went further, although ultra-vires, to freeze his personal account on the ground that the account contained proceeds of criminal acts. This is a pointer to the fact that the EFCC has been investigating functionaries covered by immunity clause before the Ganduje’s case. What has changed suddenly? Has the law concerning the EFCC’s power to investigate been amended? Could the EFCC be deliberately avoiding Ganduje’s investigations for reasons known to them?
Look, the country may not witness any progress if being selective in fighting corruption is the only option left for anti graft agencies. Elsewhere, Ganjude’s investigation would have been concluded by now and all that’ll be left is to wait for the expiration of his term to prosecute him forthwith. As an institution, the EFCC appears so weak as it is already being feebled by fears and favours, as seen in this Ganduje’s case. This is sad.
What is good for the goose is equally good for the gander. When the likes of Fayose can be investigated even when covered by immunity, I’m of the opinion that nothing should stop the EFCC from doing the same to Ganduje. Suffice it to say that the recent move of the EFCC to deny Ganduje of investigation is condemnable and could be described as the height of unfairness by a body who should ordinarily be fair in its dealing. I fear if this is not an attempt to sweep the matter under carpet.
Our democracy is in imminent danger if this selective fight against corruption lingers. One wonders the kind of corruption the EFCC of today is fighting if it cannot keep its eyes blinded from whosoever is found wanting. The law should not be respective of anybody that has committed, is committing, about to commit or alleged to have committed a crime. Same as security and anti-graft agencies. For being selective in the fight against corruption is the very definition of corruption. If the position of the EFCC on Ganduje is anything to go by, it’ll be correct to describe the EFCC as insincere and selective in this collective fight against corruption.
Let it be advocated that the fight against corruption and the overall essence of the EFCC is not about PDP or APC or even the elites. It is for the general interest of our beloved country. It is about our collective growth, as a people. It is about our future. This attitude of the EFCC is a bad omen for the success of the anti-corruption war. To fight a party and tactically shield another is precarious to our national health. EFCC is doing us no good, this way.
For the umpteenth time, what is good to the goose is also good for the gander: the EFCC should go ahead to investigate Ganduje. It is permitted by the law!
Festus Ogun is a Constitutional Law enthusiast and human rights activist studying Law at Olabisi Onabanjo University. Reach him via: [email protected] ; 09066324982