Barely seven days to the end of his tenure in office, Governor
Peter Ayodele Fayose of Ekiti State has been put under watch list
by the Economic and Financial Crimes Commission (EFCC) to prevent
him from leaving the country discreetly and evade prosecution for
alleged corrupt acts. Can the EFCC place a sitting governor under
watch list? Lawyers say yes, no. AKEEM NAFIU reports
Hostilities between outgoing Governor Ayodele Fayose of Ekiti
state and the Economic and Financial Crimes Commission (EFCC) has
been renewed following a memorandum by the Acting Chairman of the
anti-graft agency, Ibrahim Magu and the Comptroller General of the
Nigeria Customs Service (NCS), Col. Hameed Ali (Rtd), requesting
that the governor should be placed on watch list.
The memorandum entitled “Request for watch-listing of persons,
case of conspiracy, abuse of office, official corruption, theft and
money laundering”, was dated 12th September, 2018.
In the said memo, which also gave Fayose’s international
passport number as A05804492, Magu said “the under listed suspect
is under investigation in connection with the above mentioned
offences and there is reasonable suspicion suggesting that he may
likely leave the country either through the land borders, airports
or seaports in order to evade investigation. Hence, you are kindly
requested to watch-list and arrest him.”
Acting on the memo, the Comptroller General of Customs, in
return, wrote to his top lieutenants on the need to be on the
lookout for Fayose.
The internal memo dated 14th September, 2018, was copied to All
Zonal Commanders; Customs Area Controllers; Comptrollers FOU A, B,
C and D; Comptrollers EMC and WMC; Comptroller CIU; and National
Coordinator Headquarters Strike Force.
The memo signed by the Assistant Comptroller-General (E I & I),
B.A. Amajam, on behalf of the Deputy Comptroller-General of the
Unit reads “forwarded herewith is a letter from the Economic and
Financial Crimes Commission referenced CR
3000/EFCC/ABJ/EG/TA/VOL.59/010 dated 12th September 2018.
“Consequently, you are requested to monitor the suspect and
report to the Economic and Financial Crimes Commission through the
contact details if sighted. Above is for your information and
compliance please”.
Prior to the issuance of the memo by the EFCC, the governor had
written the commission saying he will be available at its office on
16th October, 2018, to clarify issues or answer questions on issues
within his knowledge.
In the letter entitled, “notification of my decision to make
myself available in your office to clarify issues or answer
questions on issues within my knowledge,” Fayose said the
anti-graft agency was at liberty to choose another date for him to
show up if the date suggested by him was not a convenient one.
But EFCC informed Fayose that rather than waiting until 16th
October, 2018, the governor could report at its headquarters on
20th September, 2018 for questioning.
In a letter referenced ‘EFCC/EC/GC/31/2173’, and signed by the
EFCC’s Director of Operations, Umar Mohammed, the anti-graft agency
asked the governor to oblige its request to come to the EFCC before
the expiration of his tenure.
However, Fayose had lashed out at the EFCC for placing him on
watch list, saying the action was not only politically motivated
but petty.
In a press statement by his Chief Press Secretary, Idowu Adelusi,
the governor said it was erroneous for the EFCC to think he would
abscond after he had initially offered to produce himself on the
expiration of his tenure.
“EFCC, when a woman is being brought to you as a wife, you don’t
have to peep through the window to see her. As I said in my letter,
Insha Allah, I will be in your office on 16th October, 2018, a day
after the expiration of my tenure.
“Putting my name on a watch list after notification of my coming
is not only political but petty. I’m not among those who are afraid
to face tomorrow. Nobody is God. They should expect me on 16th
October, 2018. I will remain in the PDP not minding their
intimidation”, the statement reads.
Apparently angered, Fayose last week asked the anti-graft agency
to pay him N20 billion in damages for damaging his reputation when
it placed him on its watch list.
While asking for immediate withdrawal of the directive which placed
him on watch list, Fayose also wanted the anti-graft agency to come
up with an apology letter to be published to all security agencies
in Nigeria, three national dailies, including the social media.
The demands, according to a statement by Fayose’s Special
Assistant on Public Communication and New Media, Lere Olayinka, was
contained in a letter dated 3rd September, 2018, written by one of
his boss’ lawyers, Obafemi Adewale.
Can Fayose, who is a sitting governor, be placed on watch list
by the EFCC in view of Section 308 of the Constitution? Lawyers say
yes, no.
First to fire the shot is a group known as Change Nigeria
Movement (CNM), which faulted the commission for categorizing the
governor as a flight risk.
The group while demanding an immediate withdrawal of EFCC’s
notice, described the action as partisan, sloppy and
unconstitutional.
The CNM said both the EFCC and the NCS had displayed brazen
pettiness and partisanship by placing Fayose on a watch list while
still in office.
Besides, it handed down a 24-hour ultimatum to the two
government agencies within which to reverse the directive and
apologise for embrassing Nigerians in the sloppy manner the issue
was handled.
The statement signed by CNM’s leader, Abubakar Usman, reads: “We
say very expressly that this is not about Fayose, the governor
should face the full wrath of the law if he has stolen the
commonwealth of his people; this is about safeguarding our law; an
injustice anywhere is an injustice everywhere.
“We call on the Nigerian Governors Forum to speak against this
tyranny. It is Fayose today, it may be another person tomorrow.
Thus, we consider the actions of EFCC and NCS as a declaration of
war against the Constitution and sovereignty of Nigeria.
“Also, just like other well-meaning Nigerians, we are
embarrassed that the Ibrahim Magu-led EFCC could not differentiate
between the constitutional functions of the Nigeria Customs Service
and that of the Nigeria Immigration Service.”
Also, some senior members of the Bar had also commented on the
decision of the EFCC to place Governor Fayose on a watch list.
The lawyers while baring their minds on the issue at the weekend
with New Telegraph Law expressed divergent opinions as to the
propriety of the action of the anti-graft agency.
Speaking on the issue, a Senior Advocate of Nigeria (SAN), Chief
Mike Ahamba, said the EFCC has exhibited high level of ignorance by
running to the Nigeria Customs Service (NCS) to place Fayose on
watch list.
According to him, it would not be right to place the governor on
watch without a valid court order, more so when an offence had not
been placed on him.
He said: “Democracy does not exist at all where government and its
agencies act above the law, sometimes in childish dimension.
“It is a pity that some government agencies are creating doubts
in the mind of the people as to their level of knowledge. I do not
know how the Economic and Financial Crimes Commission (EFCC) felt
that customs will be in charge of movement of people.
“Is Fayose goods? Is he an import or export? I would have
thought that if you are talking about movement of human beings,
someone should be talking to immigration and not customs. It’s
manifestation of ignorance.
“This was the same way the accounts of Benue and Akwa Ibom
governments were frozen by the EFCC. The same ignorance led to
those actions. The same way people will be detained by the EFCC
when it has not make up its mind that an offence had been
committed.
“It appears to me that President Buhari is a victim of symbiosis
insurgency. I think being a seasoned soldier, he supposed to be
aware of all these. Symbiosis insurgencies which were taught during
the war is a system by which people who are supposed to be on your
side do things that makes you unpopular deliberately in order to
reduce your popularity.
“It would not be right to place the governor on watch list
unless an offence had been placed on him. The law provides that if
the EFCC believes that somebody who has committed an offence is
about to leave the country, you need a court’s order to place the
person on watch list. This is because when you place somebody on
watch list, you are infringing on his privacy. If you think he will
soon leave the country, you go to the court to secure an order to
prevent him from leaving the country. For you to do that, you must
have decided on the offence he committed. There is no way what the
EFCC did to Fayose can be justified.”
However, in his own views, another silk, Seyi Sowemimo believes
the EFCC has done no wrong by placing Fayose on watch list. He
opined that placing the governor on a watch list could be regarded
as part of investigation being conducted by EFCC.
“We all know that constitutionally as a sitting governor, Fayose
has immunity from criminal prosecution. However, the Economic and
Financial Crimes Commission (EFCC) is not prosecuting him yet, the
agency is simply saying he should be put on the watch list. The
EFCC can do all that.
“The governor can be investigated while in office, it’s only
that he cannot be prosecuted over any offence until he leaves
office. So, I think the action of the EFCC in placing Fayose on
watch list is part of investigation. The anti-graft agency has not
crossed into the boundary of prosecution. I think it’s quite
legitimate for the EFCC to put him on the watch list. There is
nothing wrong with it. It’s only that the commission cannot
initiate any formal criminal prosecution by filing any charge in
court until after he had left office.
The National President of the Campaign for the Defence of Human
Rights (CDHR), Malachi Ugwummadu, expressed concerns over the
timing of the EFCC’s action.
According to him, though it’s not beyond the powers of the
anti-graft agency to place the governor on watch list, the timing
of its action is inappropriate.
He said: “As the law stands today by virtue of Section 308 of
the Constitution, a governor whose tenure has not expired cannot be
prosecuted, but he can be investigated.
“Investigation is different from prosecution. Investigations are
processes and exercises leading to prosecution. In order words,
investigation includes every other activity by law enforcement
agencies to gather the body of evidence needed for prosecution.
“So, if the Economic and Financial Crimes Commission (EFCC) has
found credible and compelling reasons why it should investigate, it
is not outside its mandate to do so. Don’t forget investigation can
include arrest or even placing someone on watch list. But, the EFCC
has no power whatsoever to prosecute the governor during the
pendency of his tenure.
“However, there is a big question mark there. The timing of the
EFCC’s action is utterly wrong. This was the same mistake the
commission made with respect to Governors Samuel Ortom and Emmanuel
Udom of Benue and Akwa Ibom states respectively. The timing is
wrong.
“It was only when Ortom defected to the People’s Democratic
Party (PDP) that the EFCC woke up from its slumber. The argument
that the commission has been investigating prior to that period is
of no moment because nobody heard anything until he defected. So,
the timing was wrong.
“Besides, the timing regarding the freezing of the Akwa Ibom
state account was also wrong because it was only when Godswill
Akpabio joins the All Progressives Congress (APC) that the EFCC
dusted the books and beamed its searchlight on the state.
“However, this does not mean that anyone who has a case to
answer should be left untouched. But timing is of essence and I
found it disturbing with respect to Fayose’s case”.
A Lagos-based lawyer, Wale Ogunade, cautioned against
politicizing the action of the EFCC saying there was nothing
irregular in it.
“All sitting governors are immune to prosecution as provided for by
Section 308 of the Constitution. However, the cover is blown off
once they are out of office.
“Of course, the EFCC has given notice to Fayose about what it
intend to do. Besides, everyone knows Fayose that he is an
interesting person. He has been put on the watch list for him to
know that the commission is up to any pranks that he might want to
play. I guess it is a natural thing. If he is a gentleman, he might
not be given such notice. But, those dealing with him know the type
of person he is.
“Besides, don’t forget that the EFCC Act makes provisions for
the agency to effect arrest on anyone suspected to have committed
any malfeasance or crime. I don’t see anything wrong in what the
EFCC has done because the agency is only doing his job.
“The commission is empowered by law to investigate and arrest
people. It is also better for the agency to take precautionary
steps to guard against any untoward happening.
“We should not politicize this issue. Politics will take us
nowhere and it has not helped us in this country. Institutions
should be allowed to be strengthened. Let them do their jobs”,
Ogunade said.
Culled from newtelegraphonline
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