EFCC have legal right to proceed against president, governors

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The EFCC Fayose drama: there is a current controversy raging as to whether the Economic and Financial Crimes Commission (EFCC) has powers under the Act establishing it to freeze the personal bank accounts of a president or a sitting governor of a state and their deputies.

The controversy was generated by the EFCC proceeding against the governor of Ekiti State, Ayo Fayose, by freezing his personal account on the ground that the account contained proceeds of criminal acts.

I will attempt a dispassionate exploration and discussion of all the relevant laws, the major ones being the 1999 Constitution of the Federal Republic of Nigeria and the Economic and Financial Crimes Commission (Establishment) Act of 2004.

Section 308 of the Constitution contains what is now generally known as the immunity clause and is applicable to the President, the Vice President, Governors and Deputy Governors. It provides that –
308(1) Notwithstanding anything to the contrary in this 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.

The scope of section 308 has been the subject of interpretation in many cases, the locus classicus being the case of FAWEHINMI v. IGP (2002) 8 SCM 77. In that case the Supreme Court held that although a governor enjoys immunity from arrest and prosecution, he does not enjoy immunity from investigation. Any criminal allegation against a sitting governor can be investigated pending the time the governor leaves office and loses immunity. The findings of such investigation can also be the basis for initiating impeachment proceedings against the governor. It was however made clear by the Supreme Court that a sitting governor cannot be arrested. According to the Supreme Court at page 96, per Uwaifo JSC –

“The court below, while recognising that the functionaries protected under section of the 1999 Constitution could not be arrested, imprisoned or prosecuted, observed that that section was not intended to completely shield them from investigation of an alleged crime. The views were expressed that:

  1. the police could conduct their investigation up to a point that would not amount to a breach of section 308;
  2. the investigation would need to be discreet and could overt or covert; and
  3. when the investigation is concluded as far as it is possible to go, and the allegation or the commission of a crime appears supported, the police must remember that they cannot proceed further to the stage of arrest.

I have no doubt in my mind that the court below correctly understood and stated the effect of section 308 of the Constitution on police duty to investigate the allegation or commission of crime by persons protected thereunder.”

It is clear from the decision of the Supreme Court in FAWEHINMI v. IGP that a sitting governor can be investigated by the Police, the ICPC and the EFCC. We are, however, concerned with the EFCC. The EFCC is a creation of an Act of the National Assembly and as such can only operate within the ambit of the Act. Section 6 of the EFCC Act gives the Commission enormous discretionary powers. Section 6, provides as follows:

6(1) The Commission shall have power to –
(a) cause investigation to be conducted as to whether any person has committed an offence under this Act; and
(b) with a view to ascertaining whether any person has been in offences under this Act or in the proceeds of any such offences, cause investigation to be conducted into the properties of any person if it appears to the Commission that the person’s lifestyle and extent of the properties are not justified by his sources of income.

It is thus very clear from the above provision and the decision in FAWEHINMI v. IGP that the EFCC can investigate a sitting governor. Can the EFCC, on the current state of the law, proceed beyond investigation against those mentioned in section 308 of the Constitution?

Sections 19 to 25 of the Act deal with forfeiture after conviction in certain cases and as such are not applicable in this case. Sections 26 to 33 under part V of the Act deal with forfeiture of assets of person ARRESTED for offences under the Act. Section 26 provides that:

Where a person is arrested for an offence under this Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such illegal act and shall thereafter cause to be obtained an interim attachment order by the court.

Section 33(1) of the Act is very relevant to this controversy. The EFCC purportedly froze the bank account of the governor of Ekiti State by virtue of the provision of this section. The section provides that:
Notwithstanding anything contained in any other enactment or law, where any person is ARRESTED (emphasis added) under this Act, the chairman of the Commission may, if he is satisfied that the money in the account of an ARRESTED person is made through the commission of an offence under this Act, may apply to the Federal High 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 where the account is or believed by him to be or the head office of the bank or other financial institution to freeze the account.

It is clear from the provision above that for the EFCC to freeze the account of any person under the Act, such a person must have been investigated and a prima facie case established against him to warrant his arrest. Upon his arrest, probably in order to preserve evidence, the EFCC would now apply for an interim order from the court to freeze the arrested person’s bank account. In applying for such an interim order, the EFCC would have to lay a basis justifying why the court should make the order by stating the particulars of the owner of the account and the fact that such a person has been arrested as a result of EFCC’s investigation.

The problem here is that section 308(1)b of the Constitution expressly provides that the functionaries protected thereunder SHALL NOT BE ARRESTED. The power of the EFCC to freeze a bank account is conditional on the suspect being arrested. The Supreme Court made it clear in FAWEHINMI v. IGP that investigators “cannot proceed further to the stage of arrest” where “allegation or the commission of crime appears supported” by investigation.

The provisions of the EFCC Act are subject to the provisions of the Constitution, and where there is any conflict, the provisions of the Constitution will prevail. It thus my considered opinion that the EFCC, under the prevailing laws, cannot freeze the bank account of a sitting president or that of a governor.

The act of freezing is a form of punishment and is predicated on investigation and arrest. The immunity clause under the Constitution can only bow to election petitions and proceedings mentioned under section 308(2) of the Constitution.

The way forward:

It is my view that presidents and governors in Nigeria should only have absolute immunity from civil damages for actions that are within the scope of their official responsibilities, just like in the United States of America.

It is equally my view that under the EFCC Act, the chairman of the Commission is vested with too much enormous discretionary powers. As it is presently, the chairman may wake up on the wrong side of his bed, and decide to investigate any person ‘if it appears’ to him that that person is living large. Or conversely, the chairman equally has a discretion not to investigate, even if it is obvious to reasonable persons that a particular individual is living above his means.

Ola Animashaun, Esq.

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