by Abayomi Sadiku

Given that S. 34 (1) of the EFCC Act empowers the Chairman of the Commission to freeze any account ‘if satisfied that the money in the account of a person is made through the commission of an offence…’ under the EFCC ACT.

Beyond prevarication, the powers and discretion inherent in that provision is wide. Notwithstanding, the competence of the EFCC Chairman to reach a valid conclusion on the guilt or culpability of a suspect is highly doubtable in the face of several judicial authorities of the highest court of the land to the contrary.

Indeed, the Supreme Court has held severally that only a competent court of law properly constituted can validly pronounce on the guilt of any person (how much more a sovereign of a federating State in a democratic setting). ‎Co-incidentally, this formed part of the findings of the apex court in the relatively recent landmark judgment of the Supreme Court in APC’s Election Petition against this selfsame Governor Fayose.

Further more, it is beyond equivocation that a legislation which is in conflict with any provision of the Constitution shall be null and void to the extent of its inconsistency with the Constitution (grundnorm). ‎Consequently, under no legal gymnastic would S. 34 (1) of the EFCC ACT be able to stand in the face of the express provisions of S. 308 (1) (a-c), (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). ‎ S.308 (1) (a) provides that; ‘No civil or criminal PROCEEDING shall be instituted or continued against a person to whom this section applies during his period of office; S. 308 (1) (c) says;
‘NO PROCESS OF ANY COURT REQUIRING or COMPELLING the appearance of a person to whom this section applies ‎shall be applied for or issued”.

It’s noteworthy, that in exercising the powers conferred on him by S. 34 (1) of the ACT to freeze the bank account of persons adjudged by himself to be guilty of commission of any related offence contained in the ACT, the EFCC Chairman has to first apply to Court (ex-parte) for the power to freeze the suspect’s bank account.

It is submitted that the Application made to the Court by the Commission’s Chairman freezing monies in a sitting governor’s bank account negates the governor’s immunity and the spirit and letters of the provisions of S. 308 of the 1999 Constitution, particularly sub-section (1) (a) which clearly stipulates that ‘no civil or criminal proceedings shall be instituted’ against a sitting governor. Indeed, the Ex-parte Application made to the Court of Law is a judicial proceeding which invariably has the potential of compelling the affected governor to go before a Court of Law (whether by Civil or Criminal proceeding) to vacate the restrictions on his account in order to have access to his money.

This is in apparent violation of S. 308 (1) (c) which is to the effect that no process requiring or compelling the appearance of a sitting governor shall be ‘applied for’ and where it’s applied for, it shall not be issued. It is clear that there is absolutely no way a sitting governor can redress the restrictions placed on his account without being compelled to physically appear in court. At the very least, to execute an affidavit and/or a Statement On Oath both of which are required to be executed before a Commission for Oaths in the premises of a Court of Law. ‎‎

The powers donated to the Chairman of the Commission by S. 34 of the EFCC ACT being wield over a sitting governor would necessarily negate his immunity under S. 308 and would detract from Sections 36(1) and 36(5) of the 1999 Constitution of the Federal Republic of Nigeria which guarantees him the rights to presumption of innocence and guarantees him fair hearing (like every other Nigerian).

‎‎Indeed, if these set of persons were expressly excluded from civil and criminal proceedings, how then are they to redress the freezing of their bank accounts during the subsistence of their tenure in office if the actions of the EFCC Chairman is allowed to stand‎? Would placing them in such awkward position not lead to absurdity and an infringement of their fundamental rights as enshrined and guaranteed by the Constitution? ‎It is clear that this was not the intendment of the drafters of the EFCC ACT.

It is also logical and commonsensical that the drafters of the EFCC ACT could never have contemplated subjecting a sitting governor inspite of his Constitutional immunity to the wide discretionary power of the EFCC Chairman in a democratic setting.

—
Abayomi Sadiku Esq. VERNIA LEGAL PRACTITIONERS, LAGOS.

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