EFCC’s action has generated a debate about the governor’s entitlement to immunity, with Fayose consistently claiming the EFCC erred, and other, such as Femi Falana, saying there’s a limit to the constitutional protection that the governor should benefit from.
Joining the debate on Sunday, SERAP described EFCC’s action as “essential for the flow of investigation, which is allowed under Section 308.
“The freezing of Governor Ayodele Fayose’s account by the Economic and Financial Crime Commission (EFCC) is lawful under section 308 of the 1999 constitution and international law particularly the UN Convention against Corruption to which Nigeria is a state party,” read a statement released byAdetokunbo Mumuni, SERAP’s executive director.
“The freezing of the account is a preventive measure targeting the rem, which is necessary for the conduct of an effective investigation of allegations of corruption involving former National Security Adviser Sambo Dazuki.
“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 investigation is pointless without the freezing of the account.”
It said that 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,” it argued.
“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 anti-corruption 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.”
SERAP made reference to the UN Technical Guide on the interpretation of the convention, which states that, to be effective, restraint, seizure or freezing measures by anti-corruption agencies should be taken ex parte and without prior notice.
“Where judicial authorization is required, the procedure should be fashioned in such a manner as not to delay the authorization and frustrate the procedure,” it said.
“The Guide also provides that ‘under an administrative freezing system, the agency receiving the suspicious report is empowered to decide upon a provisional freezing, and its decision is subject to judicial confirmation.
“In automatic freezing, the gatekeeper is obligated to freeze the assets involved in the transaction at the time of reporting, without tipping off its client, and for a short period of time within which a competent authority must decide whether to keep the assets frozen or not. 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 immobilization 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.
“Article 30 and 31 provisions are clearly binding on Nigeria. 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, which provide that a state cannot invoke domestic law as a defense 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 covered under section 308. 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. International and regional courts have also circumscribed the application of immunity in corruption matters.”
SERAP noted that apart from the UN convention against corruption, the African union convention on preventing and combating corruption, which Nigeria has ratified, also includes mandatory provisions requiring states to restrict the scope of application immunity for public officials in corruption matters.
“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 and requires states to strike an appropriate balance between immunity of public officials and the need to tackle corruption and achieve effective law enforcement,” it said.
“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.
“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 application of section 308 in corruption matters in light of international consensus and gravity and consequences of high-level official corruption in the country.
“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.
“SERAP also notes the EFCC Report on the investigation of 31 former governors while in office, which was presented to the National Assembly in 2006 by the former Chairman of the EFCC, Mr Nuhu Ribadu. The Report, which was accepted and adopted by the National Assembly, documented the cases and indictments against the former governors. Click to signup for FREE news updates, latest information and hottest gists everyday
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