On the Illegality of Freezing Governor Fayose’s Accounts, By Jaafar Jaafar

The fact of the matter is that EFCC does not have the right to freeze anyone’s account without a court order, and an order of the court can not be issued against a sitting governor. From what I read in the EFCC Act, the Commission is only empowered by law to seek an order of freezing account after the arrest of a suspect.

I woke up to a flurry of comments on Facebook and Twitter yesterday over the freezing of the bank accounts of Ekiti State governor, Ayodele Fayose. Some comments were precipitated by my earlier post in which I likened the government’s action to executive rascality committed under the immediate past administration of President Goodluck Jonathan against some serving governors.

I had a plan to travel yesterday but I shelved the journey ostensibly to research and seek legal explanations on the propriety or otherwise of the EFCC’s action.

From Lahadin Makole to Onitsha market brands of hackneyed legal arguments, lawyers and non-lawyers slugged it out, mostly in defence of the illegality. While some people argued Buhari is not the EFCC (and so actions of the Commission MUST not be tied to him), others were quick to prepare Indomie legal provisions for instant satiation of their bigoted egos.

My conscience is still not mangled enough to keep mum in the face of the violation of citizens’ rights. Fayose is first a human being, and a Nigerian citizen, before being a governorship aspirant and governor operating accounts with slush funds.

So I consulted and got varied opinions. Among those I sought legal interpretations from are a former chairman of the EFCC and three other lawyers. Their opinions differ, anyway.

Although I am not a lawyer, I know for certain that the Nigerian Constitution is neither a nuclear code booklet nor is it written in Mandarin that an ordinary person like me cannot make sense of.

The fact of the matter is that EFCC does not have the right to freeze anyone’s account without a court order, and an order of the court can not be issued against a sitting governor. From what I read in the EFCC Act, the Commission is only empowered by law to seek an order of freezing account after the arrest of a suspect.

Agreed there are illegal transactions involving Fayose’s accounts, the EFFCC’s action is still not the way to go about challenging these. Freezing his accounts and restricting his foreign travels are illegalities not expected to happen under a leader who garnished his campaign promises with the mantra of protecting citizens rights, clearly to cloak his dictatorial past.
foraminifera

Section 28 of the EFCC Act says “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 economic and financial crime and shall thereafter cause to be obtained an interim attachment order from the Court.” (Emphasis mine).

My layman interpretation is bolstered by the Court of Appeal judgment in Dangabar vs FRN. In its judgment, the court says: “In Nigeria, Sections 28 and 29 of the EFCC Act empowers the Commission upon the ARREST of any person suspected to have committed economic and financial crimes to first administratively trace and attach all the assets and properties of the accused person and cause, by way of an ex-parte application, an interim order of attachment or forfeiture to be obtained in Court in respect of the assets.” (Emphasis mine).

Was Fayose arrested before freezing his account? Is there any ambiguity in this provision?

Section 308 (1) (a) of the Nigerian Constitution provides that no suit can be instituted against an incumbent governor in any Nigerian court. At this alone, EFCC lacks the sui juris to seek an order to block Fayose’s account. By this, one may rightly say that any order against a sitting governor is crass illegality.

Two years ago, Jonathan sealed Akure airport to prevent APC governors, Ameachi, Kwankwaso, Wammako and Oshiomhole, from attending Governor Fayemi’s rally in Ado-Ekiti. Conscientious Nigerians spoke against the government’s action, heaping all manners of blames and abuses on the president’s table. Today it is sacrilege to speak according to the dictates of your conscience, provided it is against President Buhari.

President Buhari swore to protect the rights all citizens of Nigeria and respect the rule of law. But instances of such violations are as myriad as his failed promises.

While the governor’s defamatory statements and total show of disrespect against the president and his family are condemnable, the government’s total disregard for the law in this regard is equally condemnable.

Agreed there are illegal transactions involving Fayose’s accounts, the EFFCC’s action is still not the way to go about challenging these. Freezing his accounts and restricting his foreign travels are illegalities not expected to happen under a leader who garnished his campaign promises with the mantra of protecting citizens rights, clearly to cloak his dictatorial past.

Jaafar Jaafar writes from Abuja.