SERAP Backs Freezing Of Fayose’s Account, Urges AGF To Seek Legal Interpretations

Ayo Fayose

SOCIO-Economic Rights and Accountability Project (SERAP), an NGO, has aligned with the position of the Economic and Financial Crime Commission (EFCC) which in penultimate week directed the Zenith Bank to temporarily place a personal account of the Ekiti State governor, Mr. Ayodele Fayose on suspension pending when it gives a contrary instruction stating that the action of the anti-graft agency is lawful under Section 308 of the 1999 constitution and international law.

The Executive Director of SERAP, Mr Adetokunbo Mumuni, made this remarks in a statement made available to the News Agency of Nigeria (NAN) in Abuja on Sunday contending  that the agency receiving the suspicious report is empowered to decide upon a provisional freezing, and its decision is subject to judicial confirmation...

SERAP therefore believes that the Fayose case provides an important opportunity for the Attorney General of the Federation and Minister of Justice, Abubakar Malami, to approach the Supreme Court to test the scope of its application as a guide towards clarifying the limit of immunity clause provided by the section 308 of the 1999 Constitution, as amended.

“The freezing of accounts of sitting governors and other high-ranking public officials accused of corruption is essential for the flow of investigation which is allowed under Section 308.’

“The freezing of the account is a preventive measure which is necessary for the conduct of an effective investigation of allegations of corruption involving former National Security Adviser Sambo Dazuki”.

“Specifically, Article 30 of the UN Convention against Corruption entrenches a functional notion of immunity; that is, it attaches to the office and not the office holder.

“Under Article 30, states are required to ensure that immunity of public officials is not used as a ploy to frustrate prosecution of cases involving other persons such as Dazuki, accused of corruption.

“SERAP believes without the freezing of the accounts of Fayose by the EFCC, the investigation and adjudication of corruption and money laundering allegations involving the former National Security Adviser may be undermined, which will directly violate Article 30 requirements.

“Similarly, Article 31 of the convention covers the ‘what’ and not the ‘who’. It allows states to take measures to identify, trace, restrain, seize or freeze property that might be the object of an
eventual confiscation order.

“One such measure provided for under the provision is to ensure that anticorruption bodies such as the EFCC can adopt provisional measures including freezing of assets involved in suspicious transaction reports, at the very outset of an investigation.

“According to the UN Technical Guide on the interpretation of the convention, ‘to be effective, restraint, seizure or freezing measures by anticorruption agencies should be taken ex parte and without prior notice.

“Where judicial authorisation is required, the procedure should be fashioned in such a manner as not to delay the authorization and frustrate the procedure.

“In both cases, the decision is moved forward in order to increase efficiency and allow for timely freezing.”
“The objective of this in rem procedure of freezing is a temporary immobilisation of any account pending investigation into allegations of corruption cases.

“Freezing of accounts only covers the rem and is different from confiscation which is linked to the conviction of a defendant that could only be adopted in personam. This is in keeping with the general principles of international law, as provided under customary international law and articulated in the Vienna Convention on the Law of Treaties 1969.

“It provides that a state cannot invoke domestic law as a defence for failing to implement an international obligation.

“Immunity shouldn’t be available to bar effective investigation of corruption cases including freezing of accounts because such cases are entirely unrelated to the legitimate exercise of constitutional powers by public officials.

“Immunity doesn’t mean impunity and a licence for serving high-ranking public officials including governors to imply that they are untouchable in cases of allegations of corruption against them.

“In several cases, the Supreme Court of Nigeria has made it clear that immunity under Section 308 is not absolute and does not bar investigation of serving high-ranking public officials such as Governor Fayose.
“Including relating to allegations of corruption.

“As provided by the UN through the Technical Guide to the UN Convention against Corruption, Article 30 of the convention allows for sanctions which take into account the gravity of allegations of corruption.

“It requires states to strike an appropriate balance between immunity of public officials and the need to tackle corruption and achieve effective law enforcement.

“Article 30 even provides for the reversing of burden of proof in order to facilitate the determination of the origin of proceeds of corruption.

“This is different from a reversal of the burden of proof regarding the elements of the offence which is directly linked with the presumption of innocence.

“The spirit of the 1999 Constitution as reflected in Chapters 3 and 4 include the prevention of corruption and promotion of transparency, accountability, the rule of law, and good governance.

“The chapters establish standards of conduct for the correct, honourable and proper fulfilment of public functions. Clearly, these principles are the very antithesis of high-level official corruption,’’ it sated.

 “It’s very unlikely that in the current situation of our country the Supreme Court will extend the application of Section 308 to grand corruption cases.

“It would be inconsistent and incompatible with the letter and spirit of the constitution and the principles it entrenches if serving senior public officials suspected of corruption are able to use Section 308 to shield themselves from criminal liability.

“It would amount to a travesty of justice for Section 308 to be interpreted in a manner that will render sitting governors and other high-ranking public officials effectively above and beyond the reach of the law”, the group emphasized.