The Nation / Nigeria: Senior lawyers Tuesday disagreed on whether it was legal for the Economic and Financial Crimes Commission (EFCC) to freeze Ekiti State Governor Ayo Fayose’s account.
They agreed that immunity does not stop a governor from being investigated, but there was no consensus on whether a governor’s account can be frozen.
Those who spoke on the issue include former Nigerian Bar Association (NBA) presidents Chief Wole Olanipekun (SAN) and Dr Olisa Agbakoba (SAN); Chief Emeka Ngige (SAN), George Oguntade (SAN), Jibrin Okutepa (SAN) and constitutional lawyer Ike Ofuokwu.
Olanipekun and Agbakoba said only a court could decide whether the account of someone with immunity can be frozen.
Olanipekun: The Supreme Court case of Fawehinmi v IGP (2002), which held that a sitting governor can be investigated while in office, might not be a direct authority to settle the question. He said: “A case is only authority for what it decides. The present position is dicey and fluid. To my mind, any sitting governor who’s shown to have attracted illicit funds to his personal account can and should be investigated. But the cardinal question is: can his account be frozen without him knowing why it has been frozen by any agent or agency of government? “I rather think otherwise, as freezing of account presupposes that an application has been made to and granted by the court to so do. In addition, an enrolled copy of the order should be served on him , giving and specifying reasons for the freezing, so as to enable him challenge the order if he so wishes. All these conditions precedent have to be complied with as we operate a constitutional democracy rooted in the rule of law. “On the flip side, it can also be argued that if a sitting governor can only be investigated for the time being as the constitution clothes him with immunity from any civil or criminal proceedings, is freezing of his account on the order of court not another way of subjecting him to criminal prosecution, contrary to the clear imperatives of the constitution? “This is because there can’t be a freezing action without a prior court order; and for any freezing application to be filed in court, the name of the sitting governor has to stated as the defendant/ accused.” He cautioned lawyers and commentators against “jumping into conclusion on any issue without weighing the implications of what we say or sell to the public.”
Agbakoba: While immunity does not stop criminal investigation against a sitting governor, he does not think EFCC was right to freeze Fayose’s account. “It is doubtful, however, if freezing account is within the scope of investigation. I think not. I think it is a case to be tested in the courts,” Agbakoba said.
Ngige: EFCC did not err. “The EFCC has the power to freeze the account of any person suspected to be involved in the commission of a crime. This power is not restricted to accounts of any person enjoying immunity be him a Governor or President. “The immunity offered by section 308 of the Constitution is limited to arrest and prosecution. It does not cover investigation of crime. Interim freezing of a bank account involved in suspicious activity like money laundering is neither illegal nor unlawful. “Freezing of account is part of investigation and therefore no law has been violated more so when the huge sums of money found in the instant account is alleged to have come from the State treasury. EFCC should get to the root of the matter and charge those without immunity if there is a prima facie case disclosed,” Ngige said.
Oguntade: Section 34 (1) of the EFCC Act empowers the commission to freeze such an account “if satisfied that the money in the account of a person is made through the commission of an offence. On the issue of whether the bank account of a sitting governor can be frozen given the provisions of section 308 of the 1999 Constitution [as amended], the answer is clearly in the affirmative. That a person protected under section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute. The Supreme Court further held that ‘criminal investigation’ is totally different from ‘criminal proceedings’ in respect of which a Governor enjoyed immunity under section 308 of the Constitution. So, whilst a criminal charge cannot be preferred against a sitting governor, there is nothing that prevents the EFCC from investigating a sitting Governor and to freeze his account in the course of doing so upon obtaining the requisite court order.”
Okutepa said a governor can be investigated and his account frozen, adding that there is “nothing illegal and unconstitutional about it if the condition precedent is followed.”
Ofuokwu said: “If it is in a bid to trace stolen funds, I am of the firm opinion that the EFCC can freeze the account where the stolen funds are traced to. The constitution did not confer immunity from investigation. Hence, I respectfully submit that immunity from prosecution does not confer on anybody whatsoever immunity from investigation.”
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Ebun-Olu Adegboruwa: “For the court to make an order, there must be papers (court process) filed in court and signed by the judge. Section 308(1)(a) says no suit can be instituted against Fayose in any court in Nigeria. So, no process of court can be issued, signed or served, if it bears Fayose’s name, in his personal capacity,”Adegboruwa said according to Daily Post. By sections 26-34 of the EFCC Act, a suspect must have been arrested for his account to be frozen. By section 308 of 1999 Constitution, Fayose cannot be arrested and his bank account cannot be frozen. We must encourage EFCC to act according to law, or else we go into full blown dictatorship. There is no controversy in this matter. EFCC should de-freeze the account, pile up its investigations and wait for Fayose to complete his tenure. Pure and simple,” he added.”