Ozekhome flays Falana over restricted immunity for elected executives

Two Senior Advocates of Nigeria (SANs) are subtly engaging in battle of jurisprudence over the measurement of immunity of elected executives as prescribed by the constitution. Coincidentally, the two legal practitioners appear to be extending the legal battle between their respective clients beyond the court room.

Accordingly, a renowned constitutional lawyer, Mike Ozekhome (SAN), on Monday in Ado-Ekiti, flayed (Femi Falana SAN) on his legal interpretation that there is no absolute immunity for governors, deputy-governors, President and vice-president in the country.

Ozekhome contended that “Election petitions are sue generic; they are generic because they are in a class of their own.”

Falana had, during a paper entitled: The Limits of Immunity Clause’, delivered at the 60th birthday of the Edo State’s Secretary to Government (SSG), Professor Julius Inhonvbere, 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 Ayodele Fayose against criminal prosecution, adding that the EFCC was in order by freezing the governor’s accounts and thereafter obtain a court order against his bank.

Moreover, Falana had in an article titled: “The limit of Ayo Fayose’s immunity” had argued: “I am not unaware that by the strict interpretation of section 308 of the Constitution, no court process can be issued or served on a governor. But because immunity cannot be pleaded or invoked to cover electoral fraud, elected governors are served with court processes and dragged to court to respond to allegations of electoral malpractice. However, in order to give effect and validity to the equality of the rights of all contestants in a presidential or governorship elections, it has been held by the Supreme Court that the immunity clause cannot be invoked in election petitions. Otherwise, public officers covered by the immunity clause may take advantage of their positions to rig elections and thereby sabotage the democratic process.”

He had narrated that the EFCC alleged that the sum of N1.3 billion has been traced to Fayose’s personal account; protesting that  Fayose has attempted to hide under the immunity clause to shield himself from investigation. “Contrary to the governor’s claim, he does not enjoy immunity from investigation with respect to his criminal involvement in treasonable conduct and corrupt practices. It is trite law that all the public officers protected by Section 308 of the Constitution can be investigated for corruption and other criminal offences,” Falana declared, as linked the money to election financing.

Falana was the legal counsel to The News magazine in 2004 in a libel suit by Fayose on a publication by the magazine that the governor has stolen N1.2 billion from the coffers of Ekiti State Government.

Ozekhome, leading Fayose’s legal team against the EFCC at the Federal High Court, Ado-Ekiti, stated that contrary to Falana’s argument, election petitions are sue generic and unique. “They are a hybrid, neither civil nor 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 the EFCC,” he declared.

Ozekhome, had maintained: ‘’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 insisted that,  “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.”