Governor Ayodele Fayose of Ekiti State
On Monday 20th June 2016 the Governor of Ekiti State, Ayodele Peter
Fayose, alerted the nation that his personal bank account domiciled
with Zenith Bank of Nigeria Plc has been frozen by the Economic and
Financial Crimes Commission (EFCC). Mr. Fayose excoriated the anti-graft
agency and the Federal Government of Nigeria for taking such "illegal"
and "criminal" action without reference or regard to the immunity clause
in the Constitution which protects him during the currency and
subsistence of his tenure as the Executive Governor of Ekiti State.
In his response, the Spokesman for the EFCC, Wilson Uwujaren told
Vanguard Newspaper that the anti-graft agency has the right to
investigate any governor whose account is being used to move funds. “Immunity
does not prevent EFCC from investigating suspicious accounts of those
enjoying immunity, and Fayose cannot be an exception,“ Mr. Uwujaren said.
Before delving into the substance of this legal controversy, it
should be noted from the beginning that this essay is strictly aimed at
dissecting the constitutionality or otherwise of the freezing of the
bank account of a sitting governor by the EFCC. The temptation to meddle
into any alleged, conceivable or ostensible political undertone in the
matter will be resisted. I also need to caution that this piece requires
patience and clarity of thoughts, devoid of emotions and sentiments for
proper digestion and comprehension. The issue at stake deserves a
detailed examination.
In resolving this controversy, I have formulated two relevant questions or issues for determination, namely:
1. Whether the EFCC have 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 to 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 an
investigation by the commission.
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 frozen 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.
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 the 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?
This question was answered emphatically in the affirmative by the
Supreme Court of Nigeria in the celebrated case of Fawehinmi v.
Inspector General of Police (2002) 7 NWLR (Pt.767) 606. The brief facts
were that the late renowned human rights lawyer, Chief Gani Fawehinmi
SAM SAN, by a letter dated 21st September, 1999 brought a criminal
complaint against the former governor of Lagos State, Senator Bola Ahmed
Tinubu, alleging grave criminal infractions and asked the police to
investigate the allegations. Following the refusal by the police to
accede to his request, Chief Gani filed an originating summons on the
7th of October, 1999 at the Federal High Court, Lagos wherein he sought
among others, an order of mandamus compelling the Inspector General of
Police, the Commissioner of Police Lagos State and the Nigeria Police
Force (respondents) to investigate his allegations. The suit was
dismissed by the Federal High Court following a preliminary objection by
the respondents on the ground that by virtue of the immunity provisions
of Section 308 of the Constitution, Tinubu who had assumed office as
the governor of Lagos State could not be investigated on the said
allegations.
Dissatisfied, the appellant challenged the judgment at the Court of
Appeal. In its judgment, the Appeal Court held that Section 308 of the
Constitution does not protect a governor and the other persons covered
by it from criminal investigation. However, an order of mandamus was
refused. Still dissatisfied, Gani approached the Supreme Court on the
issue of mandamus. The respondents (the police) on their part filed a
cross-appeal on the part of the judgment of the Court of Appeal, which
declared that immunity does not cover investigation.
Delivering the leading judgment of the seven-man panel of the
Supreme Court on Friday 10th day of May, 2002 on whether a governor can
be investigated, Justice S.O. Uwaifo, J.S.C (as he then was), held inter
alia:
"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. To hold
otherwise is to create a monstrous situation whose manifestation may
not be fully appreciated until illustrated. I shall give three possible
instances. Suppose it is alleged that a Governor, in the course of
driving his personal car, recklessly ran over a man, killing him; he
sends the car to a workshop for the repairs of the dented or damaged
part or parts. Or that he used a pistol to shoot a man dead and threw
the gun into a nearby bush. OR THAT HE STOLE PUBLIC MONEY AND KEPT IT IN
A PARTICULAR BANK or used it to acquire property. Now, if the police
became aware, could it be suggested in an open and democratic society
like ours that they would be precluded by section 308 from investigating
to know the identity of the man killed, the cause of death from autopsy
report, the owner of the car taken to the workshop and if there is any
evidence from the inspection of the car that it hit an object recently,
more particularly a human being; or to take steps to recover the gun and
test for ballistic evidence; and generally to take statements from eye
witnesses of either incident of killing. OR TO FIND OUT (IF POSSIBLE)
ABOUT THE MONEY LODGED IN THE BANK or for acquiring property, AND TO GET
PARTICULARS OF THE ACCOUNT AND THE SOURCE OF THE MONEY; or of the
property acquired? The police clearly have a duty under section 4 of the
Police Act to do all they can to investigate and preserve whatever
evidence is available. The evidence or some aspect of it may be the type
which might be lost forever if not preserved while it is available..." (Emphasis mine).
In the instant case, does the freezing of the account of Governor
Fayose fall within the investigative powers of the EFCC or is it illegal
as declared by Fayose?
The Supreme Court had correctly stated the position in Fawehinmi's
case supra that "criminal proceedings" as envisaged by Section 308 (1)
(a) of the Constitution will only arise when a charge is brought. In
rejecting the respondents' argument that investigation was part of
criminal proceedings, the Apex Court cited with approval the decision in
the American case of Post v. United States (1896) 161. U.S. 583; 16
Court Reporter, page 611 at 613, in which it was held -
"Criminal proceedings cannot be said to be brought or
instituted until a formal charge is openly made against the accused,
either by indictment presented or information filed in court or at the
least, by complaint before a magistrate..."
Since investigating a governor is permissible, does an application
to the court for power to freeze the account of a governor under Section
34 (1) of the EFCC Act violate Section 308 (1) (c) of the Constitution
which states that "no process of any court requiring or compelling
the appearance of a person to whom this section applies, shall be
applied for or issued"?
The answer is indisputably in the negative (it is "Capital No").
This is because the law expressly states that the application should be
made in the absence of the owner of the account, that is, ex-parte. If
the EFCC seeks to freeze the account of a governor, there will be no
process requiring or compelling the attendance of the governor since
same is ex-parte and not on notice. Therefore, Section 308 (1) (c) is
neither applicable nor violated in any way.
Freezing of accounts serves principally two purposes. First, by
freezing a suspect's account, the commission prevents the suspect from
accessing, operating and drawing money from the account which may
ultimately be forfeited to the government if the suspect is eventually
prosecuted and convicted. Immunity clause cannot prevent the EFCC from
securing and preserving monies found in the account of a governor
provided the Chairman of the EFCC is satisfied that the money is
proceeds of crime. Second, the money is frozen for preservation and use
as evidence during a trial.
From the foregoing, it is clear that there is no provision in
Section 308 of the Constitution that is offended by the freezing of the
account of a governor. There is no argument about the fact that freezing
of bank accounts of persons who are under criminal investigation is
merely an interim, precautionary and necessary step preparatory to
arraignment and prosecution. Interestingly, an illustration was given by
Justice Uwaifo J.S.C. (as he then was) in Fawehinmi's case of an
instance where it is alleged that a governor "STOLE PUBLIC MONEY AND
KEPT IT IN A PARTICULAR BANK". His Lordship in his prophetic wisdom
rightly stated that a "monstrous situation" will be created if the
police (in this case the EFCC) is unable "TO FIND OUT (IF POSSIBLE)
ABOUT THE MONEY LODGED IN THE BANK" or "AND TO GET PARTICULARS OF THE
ACCOUNT AND THE SOURCE OF THE MONEY".
According to an online newspaper, Sahara Reporters, "Sources at
Nigeria's premier anti-corruption agency, the Economic and Financial
Crimes Commission (EFCC) have revealed that a personal account at the
Zenith Bank of Nigeria of Ekiti State Governor, Ayodele Fayose, was
frozen in connection with over N1.2billion he took in 2014 from the
disgraced National Security Adviser (NSA), Sambo Dasuki, to prosecute
his re-election as governor." If this was the basis upon which the
EFCC Chairman became satisfied that the money in Fayose's bank account
is/was made through the commission of an offence under the EFCC Act or
other applicable laws, nobody could question him, except the court.
Governor Fayose has not been invited for interrogation by the EFCC;
he has not been arrested or imprisoned; no criminal proceedings has
been commenced against him, and clearly no process of a court requiring
or compelling his attendance in court has been issued or applied for.
These are the only things and actions that Section 308 of the
Constitution forbids. The Supreme Court in Fawehinmi's case supra
declared that a governor can be investigated in any manner, provided it
does not lead to any these limited situations. The Apex Court emphasised
that these limited situations must not be extended under the guise of
liberal interpretation of the Constitution.
The question then is? Has any of the protections given to Governor
Fayose by Section 308 of the Constitution been taken away by the EFCC?
The answer is NO.
However, the EFCC must exhibit an order of the Court that empowered
it to freeze Fayose's account. In the absence of such authorisation,
the action is illegal, ultra vires, oppressive, undemocratic, null and
void and of no effect whatsoever. If the condition precedent was not
complied with, the account should be de-freezed immediately without
delay with an apology to the governor. Fayose has the right to seek
legal redress in the absence of an order of the court. In the case of
Mobil v. LASEPA (2003) 104 LRCN 240, the Supreme Court held that failure
to comply with a condition precedent is fatal and renders an action a
nullity.
One does not need to be a lawyer to know that law enforcement
agencies, including the EFCC, in the course of an investigation of crime
usually and are legally empowered to take possession of material
evidence. Freezing of a suspect's bank account is undoubtedly an
integral part of the investigation process and procedure. If it were not
so, Section 34 (1) of the EFCC Act would only be invokable when a
charge or information has been filed. I submit however that the Court
has the supervisory jurisdiction to examine, review and or revoke any
freezing order issued by the EFCC chairman depending on the
circumstances and the justice of each case. The order itself it interim
in nature and not absolute or perpetual.
As a postscript, I further submit that any reference to the
immunity clause in Section 308 of the Constitution that is outside the
limited protection in the express provisions of that section is legally
indefensible and baseless. The President, Vice President, Governors and
Deputy Governors only enjoy limited immunity. There is nothing
dictatorial, "illegal" or "criminal" in investigating a governor for
alleged offences.
Let it be known that immunity is not a license to commit crimes or
engage in wanton corruption. Section 308 of the Constitution only offers
limited protection. It was never the intention of the framers of the
1999 Constitution for the clause to be exploited as a weapon for
impunity, executive lawlessness, and self-enrichment.
- Inibehe Effiong is a Legal Practitioner and
Convener of the Coalition of Human Rights Defenders (COHRD) and can be
reached at: inibehe.effiong@gmail.com
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