Note: “VeePee” means “Vice President”
?1). A PERSON PROTECTED BY THE IMMUNITY PROVISIONS IN SECTION
308 OF THE 1999 CONSTITUTION CAN BE INVESTIGATED IN RESPECT OF
CRIMINAL ALLEGATIONS.
?2). So, one doesn’t need to waive immunity in order to be
investigated by relevant law enforcement agencies
?3) It is legally impracticable and impossible to successfully,
temporarily waive your immunity (while still in office)
except/unless by resignation from the office.
?4). A civil suit cannot satisfy the requirements of a ROBUST
ADJUDICATION of a criminal/corruption allegation.
?5). Any person accused of corruption remains innocent unless and
until the criminal allegations are proven beyond reasonable doubt
in a court of law. So, why worry about Media Trial?
?6). When a false allegation is published against a leader, it is
reasonably sufficient for the leader to issue or cause to be issued
a PUBLIC restatement refuting the allegation (giving his own side),
and thereafter the leader should RemainFocused on governance.
?7) It is part of effective leadership to face and receive bashings
and even allegations from the leader’s detractors and critics; so,
threatening (through your lawyers) to go to court against your
accusers is unnecessary;
I have read these news items: (1). “I am prepared to waive my
immunity” – Gov Seyi Makinde
(https://www.google.com/amp/s/www.vanguardngr.com/2019/06/i-am-prepared-to-waive-my-immunity-gov-seyi-makinde/amp/)
and (2). “I Will Waive Immunity To Clear My Name,” Osinbajo Reacts
To Allegations
(https://www.google.com/amp/s/www.channelstv.com/2019/09/25/i-will-waive-my-immunity-to-clear-my-name-osinbajo-reacts-allegations/amp/);
(3). Osinbajo threatens to sue people spreading fake news about him
on social media
(https://www.google.com/amp/s/www.pulse.ng/news/local/osinbajo-threatens-to-sue-people-spreading-fake-news-about-him/nmgmqvv.amp).
I offer my opinion from the legal perspective, on the matters
arising. First, I respectfully submit that it is not legally
possible to temporarily waive or suspend the legal implications of
the immunity provisions contained in section 308 of the 1999
Constitution, for purposes of having civil or criminal proceedings
filed against the occupant of the office, or for a robust
adjudication to be done to clear the office holder’s name, while
the leader is still in office.
Purporting to temporarily waive immunity is akin to parties in a
civil or criminal proceeding/action purporting to agree on their
own (without any statutory or other legal support) to confer
jurisdiction on a court of law in a case in which such court
clearly and statutory lacks jurisdiction. Such is wild good chase;
an exercise in futility —- a case of building a castle in the air,
which is a fruitless, meaningless and useless action.
There are only two options open to the occupant of such office
in the circumstances: (1) resign from office to extricate yourself
from the protection of section 308, so that you can submit a full
criminal adjudication (trial) over the matter, to clear your; or
(2)Submit to investigation now and cooperate with investigating law
enforcement agents in order to determine whether or not there is
any prima facie case against you, and if there’s, to wait until
your tenure ends for a ROBUST ADJUDICATION of the charges or
allegations against you in order to determine whether or not you’re
guilty.
Civil adjudication cannot satisfy the requirements of any robust
adjudication on the matter. This is because, while you’re still in
office, and protected by section 308, only you may sue in your own
personal capacity. Yes, Prof Osinbajo (as the VeePee) may institute
a civil action against a citizen — see
GLOBAL EXCELLENCE V DONALD DUKE ((2007) LPELR -1323(SC): But you,
the VeePee, cannot be sued in your personal capacity, neither may
any criminal prosecution or civil proceedings be initiated against
you in your personal capacity while you are still in occupation of
such office, and protected by immunity.
I repeat, you as an occupant of an office covered by immunity
lack the vires to waive or suspend such immunity. No Governor
Deputy Governor or Presido or VeePee in Nigeria has the vires to
waive his immunity while still in office.
Further, I humbly suggest that current threats by the VeePee’s
lawyers to proceed to court with a defamatory suit against the
publishers of the alleged “defamation” against the VeePee, may not
yield the desired result because, the only way to determine whether
or not such criminal allegations are true or credible is for
relevant law enforcement agencies to FIRST launch/undertake a
thorough investigation into the allegations with a view to
determining the veracity of same.
Without such investigations carried out, and report thereof made
public, it would be difficult for any court in Nigeria to be in
possession of any jurisdiction to pronounce on the truth or
otherwise of the CRIMINAL allegations.
Let me now restate that in respect of the allegations of
corruption made against the person of the VeePee, the VeePee need
not lose any sleep since he is protected under section 36(5) of the
Constitution which afford him a presumption of innocence unless and
until his guilt is proved beyond doubt in court. What is more?
Criminal investigations by any law enforcement agency doesn’t
violate the immunity provisions of the constitution. A person
covered by immunity can be criminally investigated, but not
prosecuted.
In FAWEHINMI V IGP (2002) LPELR 1252 (SC), the Supreme Court
while considering whether investigation of a criminal complaint by
the police against the office holders mentioned in Section 308(3)
of the 1999 Constitution is tantamount to laying a criminal
complaint before a court, held (Per WALI ,J.S.C ( Pp. 49-50, paras.
F-A )), that “Investigation of a Criminal complaint by the police
against any of the office holders mentioned in section 308(3) of
the 1999 Constitution is not tantamount to laying a criminal
complaint before a Court.
Investigation of a criminal complaint by the police is in my
view a preliminary course which may or may not result in a criminal
prosecution.”
In EFCC V FAYOSE (2018)N 44131 (CA), UGO, J.C.A ( on Pp. 41-44,
paras. A-C ), while ruling on ‘Extent of the investigative powers
of the police with respect to a sitting Governor,’ stated as
follows:
“The issue of the extent of the investigative powers of the
police with respect to a sitting Governor and the immunity enjoyed
by him under Section 308 of the Constitution was addressed by the
Supreme Court in Fawehinmi v. I.G.P. (supra) to the effect that,
while a sitting Governor cannot be arrested nor proceeded with in
Court either by civil or criminal proceedings, he can be
investigated while in office and evidence gathered/assembled
preparatory for use in impeachment proceedings against him or for
prosecution when he vacates office.
This is what Uwaifo, J.S.C., said in his lead judgment in
Fawehinmi v. I.G.P. (2002) 7 NWLR (PT. 767) 606 at 681 – 682: “That
a person protected under Section 308 of the 1999 Constitution,
going by its provisions, can be investigated by the police for an
alleged crime or offence is in my view beyond dispute. To hold
otherwise is to create a monstrous situation whose manifestation
may not be fully appreciated until illustrated.” His Lordship then
demonstrated his point thus: “I shall give three possible
instances. Suppose it is alleged that a Governor in the course of
driving his personal car recklessly ran over a man, killing him; he
sends the car to workshop for repairs of the dented or damaged part
or parts. Or that he used a pistol to shoot a man dead and threw
away the gun into a nearby bush. Or that he stole public money and
kept it in a particular bank or used it to acquire property. Now if
the police became aware, could it be suggested in an open and
democratic society like ours that that they would be precluded by
Section 308 from investigating to know the identity of the man
killed, the cause of death from autopsy report, the owner of the
car taken to the workshop and if there is any evidence from the
inspection of the car that it hit an object recently, more
particularly a human being; or take steps to recover the gun and
test it for ballistic evidence; and generally to take statements
from eyewitnesses of either incident of killing. Or to find out (if
possible) about the money lodged in the bank for acquiring
property, and to get particulars of the account and the source of
the money; or of the property acquired? His Lordship answered these
questions pungently thus: “The police clearly have a duty under
Section 4 of the Police Act to do all they can to investigate and
preserve whatever evidence is available. The evidence or some
aspect of it may be the type which might be lost forever if not
preserved while it is available, and in the particular instances
given it can be seen that the offences are very serious ones which
the society would be unlikely to overlook if it had its way. The
evidence may be useful for impeachment purposes if the House of
Assembly may have need of it. It may no doubt be used for
prosecution of the said incumbent Governor after he has left
office. But to do nothing under pretext that a Governor cannot be
investigated is a disservice to the society. I therefore answer
issue 1 in the affirmative.” (Emphasis all mine.)?
Investigation and preservation of public funds amounting to
billions of Naira allegedly corruptly acquired by 1st respondent
and deposited with 2nd respondent by 1st respondent, pending
prosecution of 1st respondent when he leaves office is exactly what
appellant claims it did by approaching and securing from Idris J.
the interim freezing/attachment order.
“As shown above, that is an issue that has been completely
settled by the apex Court in Fawehinmi’s case, it was therefore not
open to Taiwo J. to use specious arguments to reopen it or pretend
he did not quite comprehend what the apex Court said on it in
Fawehinmi v. I.G.P. The rules of stare decisis do not permit Taiwo
J. or any other Judge for that matter to ignore the decisions of
the Supreme Court under any guise.”
Finally, why should any holder of such public office worry
himself about mere allegations made on pages of a newspaper by
critics — Media Trial? “If the accused leader knows the allegation
is untrue, it is sufficient to issue a public statement refuting
the particulars of the allegations, and thereafter to move on.
“Going to lawyers to threaten CIVIL legal action on your behalf is
unnecessary— grossly unnecessary, with due respect.”
We must not forget that VeePee Osinbajo is our leader. A public
figure. Leaders are liable to be bashed front, back, left, right
and centre, by their critics and detractors, just in the same
manner as the leaders’ praises are being usually being sung on a
daily basis by their fans, supporters, camp-members and even mere
sycophants.
Against leaders and those who occupy high public offices,
allegations and harsh criticisms are sometimes made from some many
quarters — by the opposition and by critics (some genuine, some
malicious, some false, and so on) like I already said, I don’t
think the leaders need to lose sleep over some of these. They
should just ‘Remain Focused’ and maintain their ‘Stoic-Peace,’
while working hard to ensure they do not soil their hands and give
their political “enemies” good and justifiable grounds to raise
such allegations against them.
In law, on paper, ours isn’t autocracy or authoritarianism
neither are we in an IDi-Amin-of-Uganda scenario.
Accordingly, Citizens’ right to sometimes take their leaders to
the cleaners by way of criticisms, or even with allegations, is a
part of “constitutional democratic” environment, such as ours
is.
Generally, criticisms may sometimes not be agreeable, but it is
necessary. Criticism fulfills the same function as pain in the
human body; it calls attention to seeming flaws and puts true
leaders on their toes.
Everyone mustn’t necessarily sing VeePee Osinbajo’s praises. And
the fact that some subjects accuse him, even if wrongly shouldn’t
make him lose his sleep.
We must respect people’s right to hold their individual
opinions, however erratic or unfavourable such may be Section 39
(1) of the Constitution of the Federal Republic of Nigeria, 1999,
as amended provides that ”every person shall be entitled to freedom
of expression, including freedom to hold opinions and to receive
and impart ideas and information without interference.” Although
section 39(3) CFRN provides some exceptions to this right, As
‘Voltaire’ was stated to have declared, ”I May Disapprove of What
[One] Says, But I Will Defend to the Death, [One’s] Right to Say
It” I invite us as mature, civilized minds to never underrate the
pride of place the wisdom in the declaration occupies in human
relations.
Meanwhile, in the face of criticisms and harsh opinions, or even
untrue allegations, my humble advice to VeePee Osinbajo (and his
fans; we all are, indeed) goes this:
No matter how good you are, someone is always going to be
against you. But never let them be the limit of your success.
People will always have their opinion about you despite who you are
and what your capable of. ?Says Criss Jami, *”the hated man is the
result of his hater’s pride rather than his hater’s
conscience.”
In my conclusion, if I were a leader as VeePee Osinbajo, I would
try and pay much closer attention to this counsel offered by Orrin
Woodward: *”Learn to use the criticism as fuel and you will never
run out of energy.”
Additionally, be who you want to be and do what you are able to,
and not care about what others think. Leaders and their fans must
learn to give others the freedom to be themselves. And to
appreciate the differences between other people’s ways and theirs
(leaders), so that the leaders would be wiser and greater.
To suppress free speech is, more often than not, tantamount to
committing a double wrong: it violates the rights of the hearer as
well as those of the speaker.
Respectfully,
Sylvester Udemezue (UDEMS
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PHOTO: EFCC Raids Haven of Ibterbet Fraudsters in
Abuja
Operatives of the Advanced Fee Fraud Section of the Abuja Zonal
office of the Economic and Financial Crimes Commission, EFCC on
Monday September 30, 2019 raided the residences of suspected
internet fraudsters at Flats 1 and 3, Life Camp Extension Estate,
Abuja.
The operations which was carried out following information
regarding the alleged criminal activities of the suspects, led to
the arrest of the following: Raphel Chibuzor, Oyewumi Adewale,
Onyeogheni Isioma Progress, Ayo Abiodun Richard, Oloyede Faith
Damilare and Ibrahim Yusuf Waziri.
Some of the items recovered from the suspects include mobile
phones, laptop computers, a Toyota Highlander SUV and Toyota
Corolla car.
They will be charged to court as soon as investigations are
concluded.
Wilson Uwujaren
Head, Media & Publicity
