I spoke to two lawyers yesterday. One of them, apparently reading this, even has a case against Fayose as we speak. These are my findings from the two of them. Their views were almost ONE HUNDRED PER CENT similar.
1. A sitting governor can be investigated. Immunity does NOT stop investigation; especially if such a governor is seen to have abused his office or his conduct is unbecoming of someone holding such office.
2. The EFCC has powers to freeze the bank account of any individual, organisation or agency. However, “to prevent anarchy”, as one of the lawyers told me, the anti-graft agency MUST get a valid court order before it can do this and MUST be duly served on the person whose account is being frozen. Reasons for the freezing must be stated. On this, this is what respected legal authority, Wole Olanipekun, SAN, said:
“A case (FG vs Fawehinmi) is only authority for what it decides. The present position is dicey and fluid. To my mind, any sitting governor who’s shown to have attracted illicit funds to his personal account can and should be investigated. But the cardinal question is: can his account be frozen without him knowing why it has been frozen by any agent or agency of government? I rather think otherwise, as freezing of account presupposes that an application has been made to and granted by the court to so do. In addition, an enrolled copy of the order should be served on him , giving and specifying reasons for the freezing , so as to enable him challenge the order if he so wishes. All these conditions precedent have to be complied with as we operate a constitutional democracy rooted in the rule of law.” (Please note that Olanipekun is NO fan of Fayose)
3. Since a sitting governor enjoys immunity, there is no way a court order freezing his account can be obtained WITHOUT mentioning his name during application. According to Olanipekun, it means a criminal proceeding has been opened against him which is clear VIOLATION of the 1999 constitution.
4. The FG vs Fawehinmi many have been quoting since yesterday did NOT say a sitting governor’s account could be frozen. The case arose in 2002 after a governor claimed he enjoyed immunity, hence he could not be prosecuted. But the court said yes, he could not be PROSECUTED but he could be INVESTIGATED. That’s why Olanipekun said a case is an authority only over what it DECIDED!
The implication of this is that an account (irrespective of the status of the owner) could be frozen but to avoid abuse of powers, a valid court order is needed. If someone is arrested with drugs at the airport, the NDLEA Act says his assets have to be confiscated after raiding his residence. But the law has since said NDLEA, to avoid abuse, can only do this via a valid court order.
Our problem, especially my compatriots who think it is their duty to defend this regime at all costs, is that we look at EXPEDIENCY over NECESSITY. We often look at the person involved and not what the law says! That’s why anything done to people in the name fighting corruption is FAIR enough! Our patriotic writers believe that when you raise these points of caution, you are siding with looters. Or you are paid or a cash writer. I always laugh inside me. And this is why:
History has shown that EVERY dictatorship always starts with benevolence. There is always a good cause or pursuit of societal purification that is often vaunted as reasons for various infractions on rights of citizens or even an accused. In our own case, it is the anti-corruption war. It started with the president announcing that he won’t obey court orders. He was hailed. An accused was invited to EFCC and the agency got one dubious court order to hold unto him indefinitely. Our hailers applauded. Bail conditions met but accused not released. They would run away, defenders of Saint Buhari argued. Now, a sitting governor’s account frozen and we started citing irrelevant case in the past.
One day, someone will be picked up, not for stealing or anything, but for just expressing his opinion. I am sure our super-patriots will say: “Yes, his noise is detracting the president from concentrating on fighting corruption.”
We are ominously moving towards that. And my fear? Some will justify it…