SERAP: Why Fayose Should Not Enjoy Immunity

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A civil society organisation, Socio-Economic Rights and Accountability Project (SERAP), has stated that the freezing of the account of the Governor of Ekiti State, Mr. Ayodele Fayose 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.

The group argued that the freezing of the account was a preventive measure necessary for the conduct of an effective investigation of allegations of corruption involving the former National Security Adviser, Col. Sambo Dasuki (rtd).

The group in a statement today by its Executive Director, Adetokunbo Mumuni, stated that the freezing of accounts of sitting governors and other high-ranking public officials accused of corruption was essential for the flow of investigation which is allowed under section 308.

It said the investigation is pointless without the freezing of the account.

The statement read in part: “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 Dasuki, 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 NSA 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 authorization is required, the procedure should be fashioned in such a manner as not to delay the authorisation and frustrate the procedure.

“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 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.”