On Ganduje And The Insincerity Of The EFCC By Festus Ogun

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:
Festusogunlaw@gmail.com ;
09066324982

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