By Obi Nwakanma

The Economic and Financial Crimes Commission (EFCC) strikes yet again: this time, the target is Mr. Ayo Fayose, the irrepressible governor of Ekiti State. Reports say the commission has “frozen” his accounts. The EFCC is very fond of “freezing” the bank accounts and records of those whom it is just investigating before bringing them to court.

Should the EFFC be allowed to do that by law? The recent move also throws up an important question: does the EFCC have the power to freeze the bank accounts of the governor of a state? In short, should the commission be allowed the power to compel banks to put a hold or garnish the accounts of its customers as a result of investigations, by just going secretly before a judge, and obtaining a warrant ex parte, which jeopardizes the rights of the accused and the integrity of the investigations?

I have never understood this business of “freezing” individual’s accounts because they are under investigation, when all it could take, since it is merely investigation is to tag the accounts; continue to monitor or surveil its operations, and by that means gather incontrovertible evidence through bank records and evidence of transactions without alerting those under investigation.

To freeze the accounts should mean that the EFCC has fully obtained judgment that would not only mean forfeiture of said property garnished. In other words, the freezing of an account must come only after a judgment has been entered indicating guilt. An account, even while still open, can still be material evidence, and should only be garnished only at the orders of a court when a prima facie case has been established in court.   But I’m prepared to abide in some ways with that practice, if it is given a modicum of legitimacy, and that is to say, the EFCC does not in its own right have the power, outside of the proper authority given by a judge in an open court, to order a bank to put its customer’s account on a temporary hold pending judgment in an established case.

It would be a terrible kind of power for a department of government to have the power to approach a judge secretly and obtain an order of restriction on the property of a citizen which it is only investigating without showing proper cause. And I do not know what lawyers say about all these, but as a citizen conscious of the boundaries that are in-built in the theory of the state, and the separation of the powers of the state as a matter of fact, the only power in the land that can authorize, or that should have the power to authorize the hold on a citizen’s property, until provable grounds compels possession of such a property by the state, is the power of a judge obtained in an open court.

Such a warrant must be obtained in the presence of a lawyer acting for the potential victim, and only after a compelling case or grounds for such temporary seizure has been clearly or unambiguously proved, should a judge or Magistrate issue an order of temporary seizure, which is what I understand the phrase, “freezing an account,” means.

In sum, from where I stand, and I hope it is the stance of the law, the Economic and Financial Crimes Commission (EFCC) does not have the powers, and should never be invested with the powers, to order any bank to freeze the accounts of a private citizen, even if such a bank account is the subject of an investigation and can be adduced in material evidence.

If by some means of legislative shortsightedness such a power was ever given in the Act of the Legislature that established the EFCC, it should be challenged in court as an illegal mandate of legislation, and repealed by the courts themselves, whose powers would have been so willfully appropriated as to render the courts impotent, and the citizen at risk and helpless, and incapable of seeking redress or the protection of the courts in the event of a possible witch-hunt by a single organ of government.

No Act of parliament should authorize the overreach of any part of the institution of state outside of the intentions of the constitution establishing the functions of state and the powers of the government of the federation. The constitution places the power of adjudication and the interpretation of the laws in the hands of the judicial branch of the state.

The police, as a law enforcement arm of the state, cannot act for the judge, or act, outside the authority of the constitution that established the courts of the land. I have on occasion seen very ridiculous and embarrassing reports in newspapers with such screaming headlines: “IG orders the arrest of so-and-so” or “DG Immigration orders the arrest of those who have not returned their diplomatic passports.” As a matter of fact, I think occasionally, the press through its language, gives legitimacy to much illegality going on in government!

The IG has no constitutional powers to issue any orders arresting on any citizen. Such an order must be issued by a proper court which compels the Inspector General of police to effect the orders of the court to detain in compliance with the provable demands under the criminal code, or release, as the case may be, where no evidence can be produced. The Inspector-General of police cannot issue an order of arrest on his own even in an emergency. He must first obtain such an order from a court. Nor is the DG of immigration empowered to issue an order of arrest. He does not have that authority. He can simply apply to the courts to authorize the invalidation of diplomatic passports that are no longer warranted.

These are simple, civil actions in a society governed constitutionally. But Nigerian institutions are still wired to the psychology of military rule where the law, and the courts that symbolized the sense of the rule of law, became no more than impotent rubber stamps of the military oligarchs.

The EFCC is a police organization specifically established by law to investigate financial crimes and bring criminals before a judge for trials, based on hard evidence obtained from careful investigation. The current flap with Ayo Fayose indicates two things: either the EFCC has badly trained prosecutors and investigators, who show their hands too quickly in a case, or the law establishing the Commission is fundamentally defective. I think it is both. I was one of the few who spoke out against the law establishing the EFCC under Obasanjo. The 4th Assembly which passed that law was railroaded, and it made the law that gave the president a tool for witch-hunt.

In making that law, it overlooked certain modalities that should have made the EFCC truly independent. I had argued that the EFCC be placed under a reformed police system, and the Nigerian Police itself,  placed not under the president, or the Minister of the Interior, but under Justice with an Independent Attorney General who reports both to the president and the National Assembly, as should the Office of the Auditor-General of the Federation. The EFCC in its current status could be used for witch-hunt, and this is exactly what seems to be the case in the Fayose case.

The EFCC cannot seize or freeze the governor’s bank without the Ekiti HOA first impeaching him. Fayose, by the definition of the federal law, is a head of government, not inferior in status to the president, and must be accorded the dignity, protocol, and protection of his office, until the EFCC produces very damning evidence from its own investigations, which it should pass along to the Ekiti State House of Assembly, which then must conduct its own internal investigations in order to commence, or not commence the impeachment of governor Fayose based on the highly impeachable offence of corruption. But until that happens, the EFCC grows above its breeches in “freezing” the governor’s bank accounts.

I have read Femi Falana’s rather obtuse position on this, and it rings very false. Falana seems to be part of a legal lynch-mob after Fayose, and it is important to alert Nigerians, that the Fayose case is most likely to brew into another “wild, wild west” if those after him for his political stances do not back off. If there is a proven case of corruption, the EFCC should present such a case before the Ekiti House, which is the only body permitted by law to remove the governor’s immunity, impeach him, and order his prosecution, at which point the EFCC can obtain the powers from a judge to freeze Fayose’s account.

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Op–ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija

Opinion article written by Obi Nwakanma