EFCC: Why Fayose should not enjoy immunity---SERAP
(Nigeria) Socio-Economic Rights and Accountability Project, SERAP, has stated that “the freezing of Governor Ayodele Fayose’s account of Ekiti State by the Economic and Financial Crime Commission, EFCC, was 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 is a
preventive measure targeting the res, which is necessary for the conduct of an
effective investigation of allegations of corruption involving former National
Security Adviser, NSA, Col Sambo Dazuki (retd).”
The group in a statement on Sunday by its Executive Director,
Mr Adetokunbo Mumuni stated that, “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.”
The statement reads 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 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 authorization is required, the procedure should be fashioned in
such a manner as not to delay the authorization 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 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 notes 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. The Commowealth has also urged member states to commit
themselves to take active steps to ensure the removal of immunity in corruption
cases.
“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.
“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 will 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. SERAP reiterates its call to Mr
Malami to take steps to take over the cases and prosecute all 31 former
governors suspected of official corruption while in office.”
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