Do Fayose And Olujimi Still Have Immunity?

INTRODUCTION

Ever since the impeachment – or "impeachment" – of Ekiti Governor Ayo Fayose and Deputy Governor Abiodun Olujimi on October 16, 2006, coupled with the declaration of a State of Emergency in the State of October 19, which was ratified by the National Assembly on October 26, the question on the lips of Nigerians, particularly Ekiti indigenes, is:   "Now that Fayose/Olujimi have been impeached/suspended, do they still have immunity?"

The first part has a premise and the second part is a question.  This short essay addresses the impeachment premise and the immunity question.

IMPEACHMENT and SECTION 188 of the CONSTITUTION

On Tuesday, 26th September, 2006 , the 26-man Ekiti State House of Assembly (ESHOA) passed a motion to serve a notice of impeachment on the Ekiti State Governor  Mr. Peter Ayodele Fayose and his deputy Mrs. Abiodun Christine Olujimi, alleging gross misconduct against them.    The proceedings were to be within the parameters set out in Section 188 of the 1999 Nigerian Constitution. In all, there were five charges against Fayose and two against Olujimi.    24 out of 26 of the ESHOA were in support of the motion.  The notice was delivered by express mail to the accused duo on Friday, September 29 (giving them 14 days to respond), although the governor indicated that he did not receive his own copy until Tuesday, October 3. On that same day (October 3), Governor Fayose filed an ex-parte motion in an Ado-Ekiti court to stop the impeachment process.   On Wednesday, October 4, Justice Femi Akeju promptly dismissed Fayose's objection as being  "alien in law ." 

 On Thursday, October 5 the ESHOA instructed Chief Judge Kayode Bamisile to form a seven-man panel to conduct the formal impeachment investigation of the Governor and his Deputy.   Constitutionally, the CJ had seven days to do so.   On Monday, October 9, Governor Fayose wrote to Bamisile, completely denying all the charges against himself in the impeachment notice.

 On Tuesday, October 10, 2006 ,   the CJ announced his seven-person panel -   a group headed by Remi Bamigboye (Chairman).   It was alleged that he "rigged" this panel with family relations and cronies of Fayose, an allegation which he swept aside by saying that he had used his exclusive prerogative, and giving the excuse that as a judge with limited contacts with ordinary folk, he was not expected to know everybody's backgrounds.   The Bamisile panel went ahead to be formally inaugurated by the CJ – even after the Speaker forced his way into the arena to object to its composition.

 For refusing to re-constitute the rigged panel, as well as refusing to appear before the Assembly on Wednesday, October 11 to answer to a charge of official misconduct, the ESHOA promptly suspended CJ Bamisile on that Wednesday.  It immediately moved to fill the vacuum by appointing an Acting CJ Jide Aladejana.

On Thursday, October 12, the Bamisile panel still went ahead to meet on the impeachment matter - for a total of about thirty minutes.   It promptly discharged the Governor and his Deputy from all allegations without taking a single oral evidence for and against the accused persons.  Also on this day, Justice Bamisile filed a case before a High Court in Ado-Ekiti, challenging his suspension by the House of Assembly.   The case was adjourned to be heard on Thursday, October 19.

Acting Chief Judge Aladejana went ahead to announce, on the Friday October 13,  a new panel – this time headed by one Mr. Bamidele Omotosho.   Later on that same day, a letter from the Chief Justice Belogore warned Aladejana that his appointment as Acting CJ was in violation of Section 271 of the 1999 Constitution of the Federal Republic of Nigeria.   However it was silent about the constitutionality of the dismissal of Chief Judge Bamisile himself.  The letter was in response to  Aladejana's own October 12 letter to Belgore notifying him of his new elevated status. 

On Friday October 13 and Saturday October 14, the Aladejana panel took evidence from Morakinyo Ogele, the maverick lawyer whose many petitions stirred the EFCC; from Goke Olatunji, the Personal Assistant of Fayose; from an EFCC official; and from a lawyer representing DG Olujimi.   There was no representation from Governor Ayo Fayose. 

At Ado-Ekiti on Monday, October 16, at exactly 9:17 am , after receiving the Aladejana panel report and calling for a vote, the Speaker of the EHOA's gavel fell in the House, formalizing the impeachment of Fayose and Olujimi.   As far as the State Assembly was concerned,   Fayose and Olujimi became ex-Governor (having served May 29, 2005 to October 16, 2006)  and ex-Deputy Governor (December 7, 2005 to October 16, 2006) respectively.  The House also formalized the acting judgeship of Aladejana, who immediately proceeded to swear in the Speaker as Acting Governor.

Later on that same day (October 16),  now suddenly finding his voice, the Attorney-General of the Federation, Bayo Ojo, weighed in with an opinion that the State House of Assembly had no power to suspend the Chief Judge of a state, nor (echoing the Chief Justice) to appoint an acting CJ.   The new national president of the NBA, Olisa Agbakoba, also weighed in on the side of the AG.

Also on October 16, the deposed deputy governor Olujimi filed a suit at an Ado-Ekiti High Court challenging her removal from office. On that same day, ex-governor Fayose disappeared from the scene entirely, some kind of fugitive on the run-up until this day, leaving his Deputy Olujimi to fight the battle on.   She proceeded to claim to be Acting Governor on her own merit, in the absence of a Governor whose whereabouts she said she knew not.  She even held a photo-op "cabinet meeting" at the Old Governor's office.  However, on Tuesday, October 17, Fayose also spoke to a Lagos TV channel from a hide-out, claiming to still be governor.

There were thus three claimants to the Ekiti State governorship!

All of the above actions ended up in a state of emergency being declared by President Olusegun Obasanjo on Thursday, October 19.    President Obasanjo announced the imposition of a former ex-military person, Tunji Olurin, as "Sole Administrator" on Ekiti State , and the suspension of all elected officials in Ekiti State – governor, deputy governor and House of Assembly.  He however left the local government councillors intact.    The SOE was ratified by the National Assembly yesterday October 26.

The above narration is to show that there are questions about the legality or otherwise of the impeachment processor of the "impeachment" of October 16.  

However, we note the following:

* If the impeachment stands, then immunity for Fayose and Olujimi actually stopped on October 16.

* If the "impeachment" is  not to stand, is it because of the opinions of the Chief Judge and the Attorney-General – issued outside of court premises – or because the State of Emergency quashed it?   What about all of the cases filed by Fayose and Olujimi?  Are those not what are to be heard BEFORE any statement quashing an impeachment can be made?

In either case, therefore, the real issue would appear to be that the impeachment should stand either permanently or temporarily, and that immunity cannot be extended to Fayose and Olujimi in either case during this period when the courts are yet to speak.

IMMUNITY and SECTION 308 of the CONSTITUTION

A clear interpretation of this Section actually makes the issue of lack of immunity surer and does not even have to wait for the courts to speak.

Section 308 gives sweeping protection from criminal and civil prosecution to "person(s) holding the office of President or Vice-President, Governor or Deputy Governor" – that is to seventy-four persons in the Federal Republic of Nigeria at any given time.   One can understand a great level of need for protection from civil prosecution, but from criminal prosecution - which have to do with an offence against the state -  is quite startling and beyond understanding.

However, criticizing that portion – which in a constitutional review must be excised or considerably modified as the first order of business in a post-2007-elections Nigeria – is not the point here.  Rather, it is a close inspection of the portion of Section 308 which states that

QUOTE

(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to "period of office" is a reference to the period during which the person holding such office is required to perform the functions of the office

UNQUOTE

The last sub-sentence regarding the definition of "period of office" is what is key here to whether immunity covers these suspended executives.   Surely since they were impeached on October 16 – or suspended under the State of Emergency on October 26 – Fayose and Olujimi have NOT been performing and will not be performing functions of Governor and Deputy Governor respectively for the next six months.   Consequently, they CAN NOT seek protection under Section 308.

There is ALMOST no argument that can be made by them, their supporters or any legal experts that even if their tenure expires on May 29, 2007,  they are now performing official functions.

Q.E.D.

EPILOGUE

The next logical question after the immunity question has been established is "Can we now please proceed to arrest and prosecute them for past criminality, whether civil or otherwise?"

That is the subject of another symposium.

Olujimi has been brave enough to show her face during all of this palava, and her courage is to be commended.   But what about Ayo Fayose?  Does anybody know where Ayo is?  Will he not come and argue his cases before the courts – against TheNews, against the "House of Assembly", against the Federal Government, etc.?   If you do know where he is, please call the IG Ehindero or the Oba of Afao – or President Obasanjo, thank you. 

Citizen Ayo has a few questions to answer.

APPENDIX

Some Sections of the 1999 Nigerian Constitution

188. (1) The Governor or Deputy Governor of a state may Removal of Governor be removed from office in accordance with the provisions or Deputy Governor of this section. from office.

(2) Whenever a notice of any allegation in writing is signed by not less than one-third of the members of the House of Assembly.

(b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified.

the speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.

(3) Within fourteen days of the presentation of the notice to the speaker of the House of Assembly (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice-, the House of Assembly shall resolve by motion, without any debate whether or not the allegation shall be investigated.

(4) A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly.

(5) Within seven days of the passing of a motion under the foregoing provisions of this section, the Chief judge of the State shall at the request of the speaker of the House of Assembly, appoint a Panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section.

(6) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person or be represented before the panel by a legal practitioner of his own choice.

(7) A Panel appointed under this section shall -

(a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly; and

(b) within three months of its appointment, report its findings to the House of Assembly.

(8) Where the Panel reports to the House of Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.

(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report, the house of Assembly shall consider the report, and if by a resolution of the House of Assembly supported by not less than two-thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed form office as from the date of the adoption of the report.

(10) No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.

(11) In this section -

"gross misconduct" means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion in the House of Assembly to gross misconduct.

308. (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:

Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to "period of office" is a reference to the period during which the person holding such office is required to perform the functions of the office.