Nseobong Okon-Ekong writes that though it is frequently condemned for taking unilateral actions, the Economic and Financial Crimes Commission can be depended on to provide intelligence that that is often for the good of the public
The recent freeze of the accounts of Akwa Ibom and Benue states by the Economic and Financial Crimes Commission (EFCC) has again opened the debate on the powers of the anti-graft agency to carry out such actions, which many consider as a violation and acting beyond the statues of the commission. The EFCC has, however, argued that the freezing of accounts of persons, states, companies or organizations under investigation for financial crimes is not vindictive, but lawful.
Section 34 (1) of the EFCC Act 2004 empowers the commission to freeze any account suspected of being used for financial crimes. In many banking halls, members of the public are clearly warned that the bank is under obligation to report transactions which go above certain amounts in individual and corporate accounts to the EFCC.
The commission’s spokesperson, Mr. Wilson Uwujaren justified these actions at different times. He said “It is without prejudice to the social standing of the holder of such accounts or whether they are individual, corporate or government accounts. Freezing orders are incidental to investigation and doing otherwise will jeopardise the prospects of recovering stolen assets,’’ he said.
Uwujaren said the section empowers the commission’s chairman or any authorised officer to order the freezing of such account if he was satisfied that the money in the account was made fraudulently.
He added that the commission by the Act has the power to issue or instruct a bank examiner or such other appropriate authority to freeze such account.
Uwujaren stated that the 2012 amended Money Laundering Prohibition Actalso empowers the EFCC chairman or his representatives to place a stop order on accounts or transactions suspected to be involved in crime.
He added that the Act was to ensure that the commission safeguards suspected proceeds of crime pending the completion of its investigation. At other times, the commission combines the force of its statute with other laws to carry out its work. For instance, it has been known to invoke Sections 28 and 34 of the EFCC (Establishment Act) 2004 and Section 13(1) of the Federal High Court, 2004, which empowers the agency to apply the Interim Assets Forfeiture Clause.
The EFCC was established in 2003 by the government of former President Olusegun Obasanjo as a law enforcement agency that investigates financial crimes such as advance fee fraud (419 fraud) and money laundering. The commission was partially in response to pressure from the Financial Action Task Force on Money Laundering (FATF), which named Nigeria as one of 23 countries non-cooperative in the international community’s efforts to fight money laundering.
However, the commission has been facing credibility problems because it is seen by large section of the public as a tool in the hands of the government at the centre to fight its political opponents. EFCC actions often generates criticism as many condemn it as prejudicial. It is in this light that the freezing of the Akwa Ibom and Benue states was considered by critics who wondered why the anti-graft agency moved against these states soon after leading personalities in government changed political party loyalty. In Benue, Governor Samuel who was elected on the platform of the All Progressives Congress (APC) crossed over to the Peoples Democratic Party (PDP), while erstwhile Senate Minority Leader, Senate Godswill Akpabio moved from the PDP to the APC in Akwa Ibom State. Akpabio was the immediate past governor of Akwa Ibom and was accused of using his newfound influence with the ruling party at the centre to freeze the account of the state, though the former governor is also being investigated by the EFCC.
Section 34(1) of the EFCC Act 2004 stipulates that “the Chairman of the Commission or any officer authorized by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act or any enactment specified under Section 6(2) (a)-(f) of the Act, apply to the court ex-parte for power to issue or instruct a bank examiner or such other appropriate authority to freeze the account.”
Similar provision in the Money Laundering Prohibition Act 2012 (as amended) also empowers the EFCC Chairman or his representatives to place a stop order on any account or transaction suspected to be involved in any crime.
While the EFCC has backtracked in the case of Benue, the freeze order on Akwa Ibom account is still subsisting. It is not the first time that the commission would be investigating accounts of the state government. There is an on-going search in which the EFCC traced about N1.4billion allegedly belonging to the Akwa Ibom State government to 11 suspected slush accounts.
The cash was remitted into the accounts in two tranches of N1.1billion and N300million
The anti-graft agency invited four officials of the state government for questioning on the issue.
They were: Commissioner for Finance, Nsikan Linus, the Permanent Secretary and Director of Finance and Accounts in the Ministry of Justice , and an Assistant Chief Accountant in the Accountant-General Office in the state, Mfon Jacobson Udomah.
They all refused to honour the invitation without any valid reason. Investigators said: “There was no document tied to specific payment. The deposit also did not specify what the cash was meant for.
The EFCC insisted that the four officials must report for questioning. The Secretary to the State Government and the Attorney-General and Commissioner for Justice wrote an undertaking in Uyo Zonal Office and Abuja respectively assuring the EFCC that the invited persons would report as requested but they failed to turn up. It is not clear if the latest clampdown on Akwa Ibom accounts is related to the earlier investigation.
Though it is frequently condemned for taking unilateral actions, the EFCC may be depended upon to provided intelligence that that is often for the public good. Recently, the acting chairman of the Economic and Financial Crimes Commission, Ibrahim Magu, said some Nigerian banks were already on the verge of collapse due to the activities of unscrupulous individuals. He asked banks to provide a list of unscrupulous customers ahead of the 2019 general elections. According to him, that the move would help curb the level of corruption in the country. He told a session of charged banks’ compliance officers to always provide the commission with the necessary information to assist it in carrying out its roles. “We must work together to save this country. Most of the banks are sitting on the water. In fact, some of these banks are almost collapsing,” the EFCC acting chairman said. “If you give us information on such people, we will move in.”
RAY ECHEBIRE, FINANCIAL ANALYST: EFCC ACTION SHUTS DOWN GOVERNMENT BUSINESS
To contemplate freezing the bank accounts of a state government is simply sacrilegious. And to carry it out is a crime against humanity. For, when the bank accounts of a state government is frozen, socio-economic activities in that state are almost shut down because government remains the major driver of activities in most states in the country. In other words, health institutions in that state will embark on forced vacation because they can no longer get the necessary funds for their operation. What this means is that those who need medical attention will not get it. The implication of this is simple: deaths, especially of the poor who cannot afford the high fees charged by private hospitals. Educational activities will also suffer because government cannot release funds to educational institutions for their running costs. Infrastructural development will come to a halt because contractors can no longer be paid.
In fact, freezing the bank accounts of a state government is about the most callous way of punishing the people of a state. It should not be contemplated at all.
EFCC ACTION IS UNJUSTIFIABLE, SAYS LEGAL PRACTITIONER, YINKA FAROUNBI,
Former Chairman, Ikeja branch of the Nigeria Bar Association (NBA), Mr. Yinka Farounbi is miffed by the EFCC action because according to him, it cannot be justified.
“The freezing of the accounts of Benue and Akwa-Ibom States is most unfortunate. And it is nothing but abuse of nicked power. It is arbitrary, it is unconstitutional and it is not known to any status.
“The account of these state governments are legitimate. That is where their expenditure is derived from. That is where their revenue go. So, the taxes they charge the people, the allocation from the federal government and other internally generated revenue go to these accounts. The accounts are operated legally, so I do not see any reason whatsoever why a parastatal will say we are freezing the account. Freezing the account on what strength?
“Is it used for illegal activities? Because the function of the EFCC is to prevent crime – to look into accounts where crime is being perpetrated and on the strength of that apply to court that the acc ount should be properly frozen and even forfeited to the government, but in this case you cannot justify that the account of state governments are being used to perpetrate fraud or that it is being used for illegal purposes. Therefore, they have no power and they have no justification for freezing the account.”
Asked if the EFCC has the power to freeze a.state government’s account where it is discovered that the account is being used to perpetrate crime, Farounbi said: “Even at that, they would have to apply to a court and place the charge before a court and the court will look at it, but how do you prove that the account of a state government is being used for illegal purposes?
“To the best of my knowledge, there is no precedence. The closest we have to it was during the period of General Olusegun Obasanjo when he withheld the allocation to Lagos State – not that the account of Lagos State was frozen but the allocation meant for Lagos State was withheld. I have never seen anything like this. There is no justification.
“Like I said, it is a nicked display of power and I think it shows the quality of the legal department of that institution.”
SOME CELEBRATED EFCC CASES:
· An account linked to Shalewa Obanikoro, the daughter of a former Minister of State for Defence, Senator Musiliu Obanikoro frozen. According to EFCC investigators, about N1.2 billion passed through the account which belongs to an oil firm.
· Over N126billion in the accounts of some suspects frozen in order not to jeopardise investigations. More than 120 bank accounts are affected by the freeze order. About N126,563,481,095.43 was temporarily seized by the EFCC pending the conclusion of corruption-related cases.
· Other cash and assets under the Interim Forfeiture is USD9,090,920.15, seized from suspects facing trial or under investigation. Apart from freezing of N32.8billion from six suspects implicated in the Police Pension Office, some high profile suspects with accounts among the over 120 frozen include ex-Minister of Petroleum Resources, Mrs. Diezani Allison-Madueke, ex-National Security Adviser (NSA) Col. Sambo Dasuki (retd.), ex-Chief of Defence Staff Air Chief Marshal Badeh, ex-Chiefs of Air Staff Air Marshals Adeola Amosu and Mohammed Dikko Umar, Robert Azibola (ex-President Jonathan’s cousin) and Minister of Aviation Femi Fani-Kayode among others.
· Commissioner of Police in charge of Works, Victor Onofiok quizzed by the EFCC for awarding contracts of over N1.9billion to companies he had interest in.
· EFCC traces 38 choice houses to former Chairman of the Nigerian Social Insurance Trust Fund (NSITF), Dr. Ngozi Olojeme. She was the Deputy Chairman of the Finance Committee of the Goodluck Campaign Organisation in 2015. She was also being investigated by the EFCC for alleged diversion of $48,485,127 from the accounts of the NSITF. The anti- graft agency secured a court order to place the assets under interim forfeiture, pending Mrs. Olojeme’s trial.
· The EFCC also arraigned a former Managing Director of NSITF, Umar Munir Abubakar and four others for alleged diversion of N18billion. There others are Henry Ekhasomi Sambo, Adebayo Adebowale Adebirigbe, Chief Richard U. Uche and Aderemi Adegboyega.
· The EFCC traced 61 assets to former Managing Director/Chief Executive Officer of Oceanic Bank Mrs. Cecilia Ibru in Dubai. The assets include 41 shops, 16 mansions and four park towers. All the properties were confiscated, but their sale was trailed by controversy because about $4,522,413.20 remain unaccounted for
· Former Senate President David Mark was investigated by the EFCC in connection with alleged N5.4billion slush funds.
· A former Minister of State for Niger Delta, Mr. Sam Ode was probed for N2billion campaign funds meant for Benue State.
· The PDP National Chairman Uche Secondus offered to return the 23 luxury cars he got from a business associate of the former Minister of Petroleum Resources, Mrs. Diezani Alison-Madueke. But the Economic and Financial Crimes Commission (EFCC) asked Secondus to refund to the Federal Government N310 million, being the worth of the vehicles.
· The accounts of former Chief of Defence Staff, Air Chief Marshal Alex Badeh and 17 other military chiefs detained over the USD2.1billion deals were frozen by the EFCC. Some of those affected are the most senior Air Force officer, AVM A. M. Mamu (the Chief of Administration), AVM R. A. Ojuawo (Air Officer Technical Air Command, Makurdi; AVM J. B. Adigun (former Chief of Accounts and Bdgeting in NAF); and AVM J. A.. Kayode-Beckley (Director, Armament Research in Air Force Research and Development Centre); AVM T. Omenyi (MD, NAF Holdings), four top officers at the Defence Headquarters (DHQ)-Air Cdre A. O. Ogunjobi; Air Cdre G. M. D. Gwani; Air Cdre. S. O. Makinde, Air Cdre A. Y. Lassa and Col. N. Ashinze, who was the Special Military Assistant to the ex-National Security Adviser (NSA), Col. Sambo Dasuki (retd.)
· EFCC froze over N8,627,458,773.36 billion in three accounts of Hajiya Muinat Bola Shagaya was a close friend and associate of former First Lady, Mrs. Patience Jonathan.
· The Economic and Financial Crimes Commission frozen five bank accounts traced to a former Deputy Governor of Osun State, Senator Iyiola Omisore, and the two sons of a former Minister of State of Defence, Senator Musiliu Obanikoro.
· Some accounts of the immediate past Secretary to the Government of the Federation, Mr. Babachir Lawal, were frozen by the Economic and Financial Crimes Commission.
· The personal account of the Governor of Ekiti State, Mr. Ayodele Fayose, and those of his associates were frozen by the EFCC.
· EFCC obtains court order to freeze the former First lady Dame Patience Jonathan, containing the sum of $5,316.66 domiciled with Skye bank should be frozen on the ground that, the money is suspected to be proceeds of crime. Also affected by the said order are five companies and one Esther Oba who were having a total sums of N7. 4 billion for the five companies and $429,381.87 for Esther Oba in six different commercial banks.