Nigerian politics is a study in melodrama. Our leaders focus on short-term solutions and we, the people, focus on short-term problems. One of such short-term problems is Mr Ayo Fayose. Like Mr Rotimi Amaechi under the Jonathan administration, Fayose has developed a reputation for turning up where there’s trouble brewing and hell waiting to be raised. Still, as a citizen, he has the civic right to insult, criticise or otherwise disapprove of the Federal Government and its policies.
It is a fact that Mr Fayose goes about utilising this civic right in a manner most will call disrespectful. His words are often tactless, and his principles are dodgy. But courtesy and decorum towards authority are cultural ideas, not democratic ones. Culturally, Mr Fayose does not project the Yoruba ideal of the “Omoluabi”. But as a citizen in a democracy, he enjoys freedom of expression within legal limits.
Yet, as a public officer, Fayose owes a duty of good governance to the people of his state and to every Nigerian citizen. (To be clear, since we pay every public officer in Nigeria from our pooled resources, they all owe us an explanation for their affairs.) And so, the news that Fayose may be linked to the unending Dasuki saga is one that concerns us all.
Of course, there is the usual suspicion of President Buhari’s partisan war on corruption. But we can focus on EFCC’s adherence to the legal process, and ignore the underlying politics for now. In this case, the EFCC’s freeze of the governor’s personal bank account raises interesting legal and socio-political issues.
It is unclear if the EFCC acted under a court order, or unilaterally. What is clear, however, is that constitutional democracy requires that laws—and not individuals—should govern our socio-political affairs. It implies that only the courts can seize property, liberty and—arguably— life.
The pertinent issue for us—as citizens concerned with good governance—is the adherence of the EFCC to the legal process. If the EFCC acted outside a court order, then there is a clear breach of our constitutional democracy. In that case, there are no “ifs” and “buts”: the prosecution process is corrupted. We cannot win a war against corruption through defiantly corrupt processes. But if the EFCC obtained a court order, we can proceed with other issues.
And so we come back to the question of the EFCC attaching Fayose’s account through an ex parte court order. “Ex parte” means “from one side” and—to stretch the definition—implies that only the EFCC is in court. The ex parte order is usually granted in exceptional cases, for example, where evidence or property is likely to be destroyed or removed before the other party is available. Considering that Mr Fayose will be unavailable in court for a couple of years, it can be argued that the ex parte mechanism is designed for situations just like his.
The court grants such orders at its discretion. And so, whether a court allows or rejects an ex parte application against Fayose’s assets is immaterial to the validity of the legal process. Once a court gives a final ruling on the issue, then the legal process is satisfied.
We then have to consider the socio-political issue of official immunity. But we cannot consider this from the perspective of Fayose (or any other public officer) and stay objective. Instead, we ought to consider the issue from the perspective of the ordinary citizen. Why do we have official privileges? How do they matter to good governance? And to what extent are we willing to protect them? True, the 1999 Constitution protects the president, governors and their deputies from civil or criminal proceedings during their period of office. But, beyond this provision, is there inherent justification for resisting a loophole that has the effect of limiting official privilege?
Today, we have a seemingly democratic country that is governed like an aristocracy. Public officers are demigods while citizens are sheepish serfs, to be herded out of the way. It seems to me, then, that citizens ought to welcome any opportunity to limit or reduce official privileges.
And this is the crux of the EFCC versus Fayose matter. If we want a working democracy, then we have to understand its underlying principles. The idea of carte blanche immunity is unnatural to constitutional democracy. Democracy is about equality. Equality demands that public officers are subject to civil and criminal processes in the same way as ordinary citizens. Occupants of public office should not be subject to a separate class of rules.
By its actions, EFCC may have instituted—probably inadvertently—a limitation on the immunity of the president, the governors and their deputies. This is a good thing, especially now that the National Assembly is considering expanding the beneficiaries of immunity. Of course, the current occupants of Abuja are more concerned with curtailing Fayose than with limiting privileges. But, in the long run, this is irrelevant. Fayose’s accounts may be seized today, but a legal precedent that favours the citizenry has been set in motion.
And this is probably the best legacy that Mr Fayose can give Nigeria, and I plead with him not to resist this opportunity. By scapegoating him, we may be able to curtail the annoyance of the immunity clause. Mr Fayose, as a self-appointed man of the people, should be ecstatic at this privilege. Considering his eagerness to identify with ordinary citizens when it comes to freedom of expression, he should be more eager to identify with ordinary citizens when it comes to limiting the immunity clause.
Originally published here in my weekly column for Sunday Punch.
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Ever wondered about the class structure of Nigerian society? Read the series on the Hierarchy of Nigerian Policy.