The Socio-Economic Rights and Accountability Project (SERAP), an NGO, says the freezing of Gov. Ayodele Fayose’s account by the Economic and Financial Crime Commission (EFCC) is lawful under Section 308 of the 1999 constitution and international law.
The Executive Director of SERAP, Mr Adetokunbo Mumuni, said this in a statement made available to the News Agency of Nigeria (NAN) in Abuja on Sunday.
“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 group explained that “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”.
“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,’’ the statement reads in part.
The group further argued that the agency receiving the suspicious report is empowered to decide upon a provisional freezing, and its decision is subject to judicial confirmation.
It added that the assets involved in the transaction 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.
“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. International and regional courts have also circumscribed the application of immunity in corruption matters,” it emphasised.
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