Justice Ahmed Mohammed of the Federal High Court in Abuja ruled on Wednesday in favor of the Rivers governor, Nyesom Wike, restraining the police, Economic and Financial Crimes Commission (EFCC) and the Department of State Services (DSS) from searching his house.
What was the case about?
Wike told the court that there were plans afoot by law enforcement officials to apply for search warrants on his houses across the country. He asked the judge to restrain them from carrying out such an action.
On its part, the police argued that it had the right to search the property in the governor’s absence.
The position of the law
There were three issues at play in court.
First, Section 308 of the constitution confers immunity on the governor from prosecution. It also prohibits the issuance of any court process (like warrants) that requires the governor to be physically present. As Justice Mohammed pointed out, “the constitution has prohibited the application for the issuance of any court process that will require or compel the appearance of a person enjoying immunity.”
Second, a Supreme Court ruling in the case of Gani Fawehinmi vs. Inspector-General of Police in 2002 held that a serving governor could actually be investigated for criminal allegations, even though he cannot be prosecuted while in office. The Supreme Court however ruled that during investigation, law enforcement agents must not encounter the suspected governor; his physical presence is not required.
So on the one hand, a governor is protected from prosecution. On the other hand, he could be investigated from afar. That brings us to the third issue. According to the Sections 149 and 150 of the Administration of Criminal Justice Act (ACJA), in order for a search warrant to be executed, it is compulsory for the owner or occupant of a house or his or her representative to be present.
The judge’s ruling
Since the police can only search a house if the owner is around, but in this case they are prohibited from encountering the governor in the course of their investigation, the judge ruled that they cannot search the house.
“The situation would have been different if the draftsman of section 308(1)(c) of the 1999 Constitution has stated that a court process like the search warrant can be applied for or issued and executed whether the serving governor is physically present or not,” Justice Mohammed said.
“Again, if the argument of the defendants to the effect that the search warrant issued by the court of law can be executed in the residence of a serving governor without his physical presence is accepted or endorsed by the court, then a situation will arise where in the course of executing the search warrant the serving governor who was not present at the beginning of the exercise suddenly appears at the said residence, the likelihood of the governor having an encounter with the police cannot be ruled out.”
He therefore granted the restraining order and stopped any alleged plan to apply for a search warrant and execute same at the residences of Governor Nyesom Wike of Rivers State in Abuja and other parts of the country.