Immunity clause and the challenge of curbing financial infractions
Section 34 (1) of the Economic and Financial Crimes Commission (EFCC) establishment Act, 2004 empowers the anti-graft agency to freeze accounts based on court orders. Also section 308 of the 1999 constitution as amended restricts legal proceedings against sitting Presidents and governors as well as their deputies. In the light of the recent freezing of the account of the governor of Ekiti State, Mr. Ayo Fayose, there have been arguments as to whether those under the category listed above can face investigation, which includes freezing of their accounts, where there is suspicion of illegal fund transfers. JOSEPH ONYEKWERE, ABIODUN FAGBEMI, GODWIN DUNIA AND OLUDARE RICHARDS report that while lawyers are divided in their opinion about the propriety of EFCC action, the anti-graft agency insists its action is in order.
An Ilorin based legal practitioner, Adebayo Adelodun (SAN) said the final arbiter on the arguments on whether or not the EFCC has acted in accordance with the dictate of Section 34 (1) of its Act having frozen the personal account of governor Fayose, should be the court of competent jurisdiction.
According to him, there are usually two arguments to an issue. One may be talking of the immunity of the governor, but that immunity does not prevent him from going to court. “So I will advise him to go to court”, he said.
Adelodun however noted that no effort should be spared in retrieving Nigeria money from the coffers of some greedy Nigerians with mind buggling money, adding, “let such people be fished out to come and explain how they got the money.”
But Professor Rasheed Ijaodola, Dean, Faculty of Law, Igbinedion University, Okada, Edo state, opined that there is no ambiguity requiring the interpretation of the court on the extant matter as the anti graft agency has the right to freeze the said account but with a caveat.
For Ijaodola, the pertinent question remains “whether if God forbids, the governor commits murder, now, can he be investigated or we shall hide him under the immunity clause as contained in Section 308 of the Constitution? Certainly, he will be investigated.
“If Mr Fayose will be investigated, then the EFCC has the power to investigate him for the allegation being levied against him at present. Even by freezing his personal account, it could be a temporary measure aimed at not allowing the EFCC’s investigations to be jeopardised. So I think the EFCC has not acted beyond its constitutional rights.”
In his reaction, a senior advocate of Nigeria, Chief Chris Uche (SAN) said: “It is completely illegal and unconstitutional for the EFCC to freeze the bank account of a suspect without a court order in the light of the very clear provisions of section of 34 (1) of the EFCC Act, which regulates the agency.
“It is even more illegal to obtain such orders from the Magistrate Court. Section 46 of the EFCC Act limits the power to grant such freezing orders to the High Courts. The very recent judgment of Justice Kolawole of the Federal High Court, Abuja in the Nyako’s case is very timely and illuminating”.
“He held that it is unlawful and a violation of the provisions of the law establishing EFCC for it to freeze a suspect’s account without an order of the Court”.
He also condemned the emerging practice when the agency obtains orders from Magistrate Courts.”
According to him, section 293 of the Administration of Justice Act 2015 is being abused and misapplied. He implored the High Court to make pronouncement on the constitutionality or otherwise of same.
“We all support the fight against corruption but if it is to have any credibility, it must be fought within the ambits of the law and the Constitution. It must also have no political prejudice. To do otherwise is corruption itself, being a corruption of due process of law”, he declared.
Lagos lawyer and human rights campaigner, Ebun-Olu Adegboruwa said in the case of Fawehinmi v Tinubu, an attempt to cause the police to investigate a sitting governor was resisted up to the Supreme Court. According to him, the said governor served his tenure and was never investigated, till date.
His words: “In Tinubu v IMB Securities, a suit was filed to enforce the guarantee of a loan. The guarantor appealed to the court of appeal on an interlocutory decision. In the course of the appeal, the guarantor was elected governor. He insisted on pursuing the appeal but an objection was taken that since court processes cannot be served on him as governor, he also could not take advantage of the law to initiate processes against other people. His appeal to the Supreme Court was dismissed. The Supreme Court maintained that a sitting governor cannot be allowed to institute any process in court since none can be instituted against him.”
He explained that those who froze Fayose’s account know very well that the governor is left without any remedy in law, as he cannot file any case or process in court, while he is still in office as governor of Ekiti State. He advised the EFCC to defreeze Fayose’s account and then pile up its evidence to await the end of his tenure.
He stated that most of the arguments in favour of EFCC is centred on the dislike of Fayose’s person. “I verily believe that most of the legal arguments canvassed in support of the action of the EFCC against Fayose are based purely on his personality and have no jurispudential basis in law. The conclusion to be drawn from the Supreme Court decisions in Fawehinmi v IGP and Tinubu v IMB is that no court process can be filed in any court in Nigeria by or against Fayose as a sitting governor, whether ex-parte, on notice, whether criminal or civil. No judge can sign any order or court process in any court in Nigeria, that bears or relate to the personal name of Fayose, while he is still the governor of Ekiti State”, he explained.
But Jibrin Okutepa (SAN) thinks differently. According to him, there is nothing illegal in investigating a sitting governor and freezing his account.
“If we mean business in eradicating corruption, within the confinement of Section 15 of the 1999 Constitution, EFCC must be commended in doing so and should go after any public officer including the president.
“Any other high-ranking official that has immunity, who is believed to have in his private account public funds, should have the accounts frozen and preserve the money for prosecution after their tenure of office has come to an end.
“If public funds are stashed in private accounts, they should be allowed to look into it. Are we saying that if President Buhari, for instance, decided to pocket the budget into his bank account, EFCC should fold its hands?”, he queried.
Okutepa noted that this is not the first time a sitting governor would have his account frozen. “In 2013, under President Goodluck Jonathan, a People’s Democratic Party (PDP) governor, Murtala Nyako of Adamawa State had his account frozen.
“In any case, we are witnesses to the drama of Fayose and Zenith Bank. If it is true that Zenith Bank funded his election, the Federal Government should go after Zenith Bank because by the provisions of the Companies and Allied Matters Act (CAMA), no corporate organization is to fund a political party”, he advised.
Constitutional lawyer, Dr. Tunji Abayomi said: “I don’t think the EFCC can freeze the accounts of anybody without the authority of the court in the sense that EFCC would have by doing so made itself a judge in its own case”. I don’t see anything in the EFCC Act that allows such.”
Notwithstanding all the debates, Head, EFCC Public Affairs unit in Lagos, Samin Amaddin said the freezing of suspects accounts is a duty line in EFCC’s mandate.
“It is a power given to the Commission in the EFCC 2004 Establishment Act and in 2011/2012 Money Laundering Act as amended. The primary function of the commission is the enforcement and due administration of provisions of these laws and any other law or regulations related to financial and economic crimes, including the criminal and penal code.
“As to whether it has powers to freeze suspects account without a court order, I will say yes, it can. In section 6 (5)(b) of the Money Laundering Act 2011, under Suspicious Transaction Reporting, the law states, ‘Notwithstanding the provision of paragraph (a) of this subsection, the Chairman of the Economic and Financial Crimes Commission or his authorized representative shall place a Stop Order not exceeding 72 hours, on any account or transaction if it is discovered in the course of their duties that such account is suspected to be involved in any crime”. This can be done before it gets a court order, depending also on the expediency of time”, he argued.
He said although Section 34 of the EFCC Establishment Act 2004 talks about Court ex-parte as it relates to freezing order on banks and other financial institutions, we should be mindful of the position of the drafters of the law, who might have envisaged that if the interim power of immediacy does not exist, the suspect or fund manager (financial institution) who could also be a conspirator, may tamper with evidence.
He said: “This same section 34 makes it mandatory for the bank or financial institution to oblige the commission any information regarding the account under investigation without recourse to the owner of the account, whoever he or she may be. So, the commission does not need to inform anyone that he or she is under investigation. It is not even proper for it to do so.”