In the case of the Alliance for Democracy v. Peter Ayodele Fayose (No 1) (2004) 26 WRN 34 the respondent challenged the issuance of a subpoena on him on the ground that Section 308 has conferred immunity on him as a governor. While dismissing the objection the Court of Appeal (per Muri Okunola JCA) held: “… the immunity provided by the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is put in abeyance when his election is being disputed before an Election Tribunal as to make him amenable to being compelled by a subpoena to tender document(s) or give evidence before the Election Tribunal.”

In recent time, there are election related proceedings that have been filed against heads of government despite the immunity clause in Section 308 of the Constitution. It is on record that majority of the governors were respondents in several election petitions arising from the 2015 general elections. Although the elections petitions have been concluded a pre-election in which President Buhari was a defendant has just been discontinued by the Plaintiff while the case against the governor of Cross River state has been dismissed on the ground that the allegation of falsification of age was not proved beyond reasonable doubt. Two pre-election cases which are still pending against Governor Bagudu of Kebbi state and Governor Okezie Ikpeazu of Abia state.

Immunity and criminal investigations
Two weeks ago, the EFCC traced N1.2 billion criminally diverted from the Office of the National Security Adviser to a Zenith bank account belonging to the Ekiti state governor, Mr Ayo Fayose. As soon as he learnt that the account was under investigation Mr. Fayose invaded one of the branches of the bank at Ado Ekiti with armed gendarmes and demanded for the withdrawal for the balance of N500 million in the account.

To prevent the governor from transferring the fund the EFCC froze it. and later obtained an ex parte order of interim seizure. In challenging the action of the EfCC the governor said that his immunity had been violated. Convinced that he had been betrayed by the bank Mr. Fayose said that the money was actually donated by the bank to his campaign. As I have argued elsewhere the action of the EFCC cannot be impugned having regard to the combined effect of sections 28 and 34 of the Efcc Act as well as section 308 of the Constitution.

However, assuming without conceding that the bulk of the fund spent on his campaign was donated by Zenith Bank Plc the governor has unwittingly justified the investigation and freezing of his account by the EFCC. He has also confirmed that the humongous sum of money was transported from Abuja to Akure in contravention of the Money Laundering Act. By his utterances, Mr. Fayose is simply saying that the management of Zenith bank stole depositors’ money and laundered it to fund his political campaign contrary to section 90 of the Electoral Act, 2010 as amended.

On the basis of his own confessional statement, Governor Fayose and the management of the bank are liable to be prosecuted for electoral fraud, money laundering and criminal diversion of depositors’ fund to the tune of N1.2 billion. Therefore, whether it is public money stolen from via the office of the NSA or depositors’ fund through the bank the decision of the EFCC to freeze Mr. Fayose’s account is perfectly in order.

In Gani Fawehinmi vs. Inspector General of Police (2002) 23 WRN 1 the Supreme Court held that although public officers covered by the immunity clause cannot be arrested or prosecuted they are not excluded from investigation for corruption and other criminal offences. It was the view of Uwaifo JSC “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.”

Curiously, the interpretation of the immunity clause was limited to section 308 (1) of the Constitution. It is doubtful if the Supreme Court would have maintained the same stand if its attention had been drawn to Section 308 (2) thereof where it is expressly provided that a public officer protected by the immunity clause can be subjected to “criminal proceedings in which such a person is only a nominal party”. This means, in effect, that a public officer who enjoys immunity can be made a defendant in a nominal capacity in criminal proceedings . In FRN v Dariye (2011) 13 N.W.L.R (Pt 1265) 521, the Court of Appeal dismissed the charges against the appellant, a sitting governor at the material time on the ground that he was made a principal party in the criminal case. According to Tur J.C.A:

“Learned counsel to the appellant ought to have seen the impracticability, futility and absurdity of instituting criminal proceedings against Chief Joshua Chibi Dariye either as the Governor of Plateau State or in his name since he is not a nominal party under section 308 (2) of the Constitution but the principal offender alleged to have conspired with the other co-accused persons to commit the offences.”

Investigation of corrupt practices involving heads of government by independent counsel

By virtue of section 52 of the ICPC Act the Chief Justice of Nigeria is empowered to appoint an Independent Counsel, who shall be a legal practitioner of not less than 15 years standing, to investigate any allegation of corruption against the President, Vice President, Governor or Deputy Governor. At the end of such investigation the Independent Counsel is required to make a report of the findings available to the National Assembly or the House of Assembly of a State as the case may be for the impeachment of the indicted officer.

When Justice M.A. Akanbi was the ICPC Chairman he caused the commission to submit about about 20 applications to the Chief Justice of Nigeria seeking for the appointment of Independent Counsel to investigate allegations of corruption against some sitting governors. None of the applications was granted on the ground that there was no budget for the office of the independent counsel! Instead of applying for an order of mandamus to compel the Chief Justice to carry out his statutory functions under the ICPC Act the case files were reportedly withdrawn by the ICPC. Thus, section 52 of the ICPC Act has not been tested for the past 16 years.

Plea of immunity by state governments
Recently, the Attorney-General of the Federation (AGF) requested the efcc to investigate a complaint alleging the criminal diversion of N11 billion from the coffers of the Rivers state government. In a letter addressed to the AGF which has since been advertised in some national dailies. In the letter the Rivers AG challenged the competence of the AGF to direct the efcc to investigate the allegation of the missing fund. Without missing words, the AGF was asked to leave the suspected looters alone as the money alleged to have been criminally diverted is owned by the Rivers state government. In support of his strange submissions the Rivers state AG cited a couple of cases decided by the federal and state high courts.

With respect, the decisions relied upon by the Rivers states AG do not represent the correct state of the law with respect to public accountability in Nigeria. Incidentally, the Rivers state government was one of the defendants in the case of AG, Ondo State v AGF wherein the Supreme Court had held that ” generally speaking, power to prosecute for an offence is not determined by the ownership of the property allegedly stolen or misappropriated and that the determining factors are: (i) Who can exercise prosecutorial powers, (ii) The nature of the offence and, (iii) Where the offence was committed-the venue. In Dariye v FRN (2015) 10 N.W.L.R. (Pt 1467) 325 the Supreme Court reiterated the principle when it held that “the owner of the subject matter of the charges is immaterial. What is material is that a Federal enactment has been violated.”

It view of the fact that the efcc has been asked by the AGF to investigate the alleged violation of relevant federal enactments with respect to stolen funds belonging to the Rivers state government it is hoped that the state AG will advise the suspects involved to cooperate with the anti graft agency in the circumstance. Having regard to the categorical pronouncements of the apex court in the AG, Ondo state v AGF (supra) and FRN v Fariye (supra) the ownership of the alleged missing sum of N11 billion is of no moment.
waiver of immunity

Realizing that the war against corruption could not be meaningfully prosecuted as long as some public officers were immune from prosecution President Obasanjo campaigned for the abolision of immunity for heads of government. In 2001, he waived his immunity and appeared before the Oputa Commission in response to the petition of Dr. Beko Ransome Kuti. The allegation was that it was the military regime headed by him which had authorised the violent destruction of Fela Anikulapo-Kuti’s residence on February 18, 1977.

However, the other ex-military dictators refused to appear at the panel of inquiry. In fact, one of them successttfully challenged the summons served on him in Fawehinmi v Babangida. In setting aside the summons the Supreme Court held that the Commission could not compel the attendance of any witness and that the federal government had no power to set up a commission of enquiry outside the federal capital territory.