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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