This is what prominent lawyers say about freezing of Fayose’s account by the EFCC

– Reactions have continued to trail the closing of Governor Ayodele Fayose’s bank account by the Economic and Financial Crimes Commission (EFCC)

– While some lawyers and rights activists think the EFCC has acted well, others say the anti-graft agency has infringed on the right of the governor

– The lawyers all argued based on the provision of the constitution and how it relates to the case under review

Prominent Nigerian lawyers and rights activists are expressing divergent views over the freezing of an account belonging Governor Ayodele Fayose of Ekiti state by the Economic and Financial Crimes Commission (EFCC).

Fayose has alleged that his rights have been trampled on by the anti-graft agency, but the EFCC says it has the power to investigate and carry out such actions in the course of its duties.

While some opinions support his argument, others think otherwise.

Chris Akiri, solicitor of the Supreme Court of Nigeria

My opinion is that the war against corruption is gradually becoming war against political opponents. because Fayose is forever against this administration, they want to do every thing to rope him in bringing in the EFCC. Section 308 of the constitution immunises all political officers from the rank of the president of the country, the vice president of the country, the governor of any state and his deputy from arraignment before any court of law. He cannot be sued and can’t be arraigned before any court on any criminal and civil charges.

A court of law has to pronounce on the closure of a governor’s account and there is no court that will do that in view of section 308. You cannot close down a governor’s account. If you close a governor’s account, it means that you must have arraigned that governor before a court which should not also be. You can’t close his account without bringing him to court or before the EFCC which is even forbidden in this regard by section 308 because you will be guilty of carrying out an action without fair hearing.

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So if you didn’t take him to court (and they couldn’t in view of section 308 of the constitution as amended) and you didn’t take him to the EFCC (and they couldn’t in view of the same provision) and they went ahead to freeze his account, the EFCC would have erred against the constitution and the doctrine of ‘hear the other side’ (audi alteram partem) which is covered by section 36 of the constitution and any case against him will be upturned.

I support Fayose going to court. Even if a governor can’t be sued, a governor can sue. The case of Onabanjo and Abiola is a reference. The governor has his fundamental rights. The court is going to quickly set aside the closing down of this account for illegality and unconstitutionality.

Professor Chris Nwaokobia, lawyer and director-general of the Change Ambassadors of Nigeria (CAN)

Of course, the first thing to note is that Governor Ayodele Fayose enjoys immunity from prosecution, but he does not enjoy immunity from investigation. The EFCC has the right to investigate him, but it cannot charge him to court till he is either impeached or his tenure expires.

His election matters have been taken up to the Supreme Court and he is legally, validly the governor of Ekiti state, except the Supreme Court decides to revisit the issue because of alleged fraud and electoral malfeasance (and that would be absolutely radical of the Supreme Court to do).

 

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But beyond that, what the EFCC has done is known to law. Freezing the account is not punitive, as it were, it is just that they are trying to avoid a situation where, perhaps, the resources received is not transferred to another account. I do not understand the hoopla, the noise in the public space concerning the action of the EFCC.

I think it is about time Nigerians aggregated to lampoon corruption and call a crime by its name. We must stop sensationalising things that are very clear along party lines. We have heard that about N3 billion was found in the frozen account. In this age where workers are not been paid and when this are hunger and poverty in the land, why are people taking sides with political operators? The EFCC should do its job effectively and when Fayose ceases to be governor of Ekiti state, he can be put to trial.

Olumuyiwa Jimoh, deputy majority leader of the Lagos state House of Assembly and rights activist

It has been established that some certain amount was transferred into Ayodele Fayose’s account. It is left for any anti-graft agency to investigate and freeze such an account. The EFCC is not removing him as a governor; immunity covers that.

First, he was not taken serious because there was the belief that he would not win. Eventually, he won and immunity covers him, but in this case, apart from the allegation against him, it was discovered that some money flowed into his account. People should not misinterprete it. It is not the state account but a private one belonging to Ayodele Fayose.

Nelson Ekujumi of the Committee for the Protection of Peoples Mandate (CPPM)

It is an inescapable fact that the anti-corruption agencies since the coming on board of the President Buhari administration have woken up from their slumber of the years when stealing was not corruption. We are all witnesses to change that is being experienced in our public life now that stealing is corruption as enshrined in our constitution.

It is also a fact that according to our constitution, certain categories of public officials are immune from prosecution while in office and they include the president, vice president, governors and deputy-governors.

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Thus, we all recognise and accept the fact that these category of persons have immunity, but to transfer this immunity to their properties or holdings or bank accounts is what one has been unable to identify where it is stated in the constitution.

So, if some Nigerians are toeing the line of Governor Ayodele Fayose of Ekiti state in crying wolf over the freezing of his personal bank account (and not the Ekiti state government bank account) as a result of investigation of irregularities and suspicious transactions by the EFCC as empowered by the act establishing the commission, may one advise the Ekiti state governor to quickly approach the courts and seek the interpretation of the law on the difference between immunity for the governor and his personal bank account which has been frozen by the anti-graft body.

Inibehe Effiong, lawyer and convener of the Coalition of Human Rights Defenders (COHRD) in an article on the issue

In resolving this controversy, I have formulated two relevant questions or issues for determination, namely:

1 Whether the EFCC has the powers under the law to freeze the bank account(s) of persons who are under criminal investigation by the commission?

2 Whether a sitting governor of a state in Nigeria can be investigated for alleged crimes, and his bank account(s) frozen by the EFCC in the course or under the pretext of criminal investigation?

The answer to issue 1 supra (above) is found in the Economic and Financial Crimes Commission (establishment) act 2004 (subsequently referred to as the EFCC act). In recognition of the serious nature of economic and financial crimes, the National Assembly vested the EFCC with far reaching powers to enable the commission discharge its mandate of ridding the country of corruption. Among the powers conferred on the commission as part of its general investigative powers, is the power to freeze the bank account of persons who are subject of investigation by the commission.

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Specifically, section 34 (1) of the EFCC act with the heading: “Freezing order on banks or other other financial institutions”, provides as follows:

“Notwithstanding anything contained in any other enactment or law, the chairman of the commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this act and or any of the enactments specified under section 7 (2) (a)-(f) of this act, apply to the court ex-parte for power to issue an order as specified in Form B of the schedule to this act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account.”

The above provision is self-explanatory. For emphasis, I will elucidate on two principles arising from the provision.

Firstly, the EFCC chairman or any other officer of the commission authorised by him can order any financial institution (including Zenith Bank of Nigeria Plc where governor Fayose’s account is domiciled) to freeze any account with money which he is satisfied is made through the commission of an offence under the EFCC act, the Money Laundering (prohibition) act, etc. Satisfaction within the contemplation of this section is entirely a matter of opinion which may be formed based on the existence of certain facts and circumstances that are within the knowledge of the chairman of the commission. The act has not set out any condition that should guide the chairman in determining which account to freeze. In other words, it is a matter of discretion whether any account should be freezed or not. All that is required of the chairman is for him to be satisfied that the money in the account is a product of crime and corruption.

The second principle that deserves reiteration is that before the chairman of the commission can order a financial institution to freeze any account, he must first apply to the court ex-parte (without the attendance of the owner of the account or the financial institution in court) for power to issue the order. Simply put, an application to the court for power to freeze an account and the granting of same, are conditions precedent to the issuance of an order to freeze under Section 34 (1) of the EFCC act. At the risk of repetition, I submit that the EFCC has no power to order any financial institution or designated non-financial institution to freeze any account without obtaining the consent of the court.

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On issue 2, so much has been said about the immunity clause enshrined in Section 308 of the constitution of the Federal Republic of Nigeria 1999 (as amended) (subsequently referred to as the constitution). For ease of comprehension, the said provisions are reproduced verbatim below:

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.

In view of the above constitutional provisions, can Mr Fayose be investigated by the EFCC for commission of an offence under the EFCC act, the Money Laundering (prohibition) act or any other law that is within the investigative or prosecutorial authority of the commission while he is still the governor of Ekiti state?

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