The action immediately prompted diverse reactions with a large majority of lawyers and Nigerians contacted affirming the validity of the commission freezing a governor’s account, but only upon the orders of a court.
Governor Fayose, who opened up on the EFCC’s action while speaking at the premises of Zenith Bank, Ado-Ekiti, where he has his personal account, claimed that he got notice of plans by the Presidency to freeze his account some days earlier.
A source in the bank told the visibly surprised Fayose that his account was allegedly frozen on the orders of the anti-graft agency.
The governor said he had earlier issued a counter cheque to make a withdrawal, which was rejected by the bank located in Onigari , GRA in Ado Ekiti, describing the action as criminal and illegal.
Citing Section 308 of the 1999 Constitution, Fayose said he enjoys immunity as a sitting governor, urging the Federal Government to fight corruption within the ambit of the law.
He said: “I got wind of the fact that the EFCC had placed restriction order on my personal account and that of my associates. I came here today (yesterday), and I have been able to see it. This action shows that this government has no respect for the constitution because I enjoy immunity under Section 308.
“I support government fighting corruption, but it has to be within the ambit of the law. You can investigate me; it is their right, but they have to wait till 2018 because I will be done by then. They should not be in a hurry because I will personally come to them for investigation.
“I have become a public figure in this country that I don’t have anywhere to run to. This rascality of EFCC must stop. If they like, let them investigate the whole world. Is it because they are the sitting government now that nobody can ask them questions? We will take every legal procedure to get things right.
“I am not leaving this bank until they give me a statement of account. They must put it into writing because EFCC has no right under the law to freeze my account. They did not communicate with me. They want to destabilize the state, and we will use all legal means to make them obey the constitution. They can investigate me, but they can’t coerce me.”
Contacted, Head, Media and Publicity, EFCC, Mr Wilson Uwujaren, did not, in clear terms, confirm that Fayose’s personal account was frozen. But asked if it was within the agency’s constitutional powers, he replied: “Under the constitution, government executives don’t have immunity on investigation. They can be investigated while in office but can’t be prosecuted. Also, an account can be blocked during investigation.”
The EFCC position was affirmed by Chairman, Presidential Advisory Committee on Corruption, Prof Itse Sagay, SAN, who said the commission had been empowered to freeze accounts or assets of anyone under investigation.
Sagay, who hinged his assertion on a Supreme Court verdict to buttress his point, said: “If the EFCC is investigating anybody and they have reasons to believe that somebody has acquired state assets for himself, they are empowered by the law to apply to a court to freeze those assets, including banking assets, pending the enquiry and possible trial. So, they have that power.
“For a governor, it is a unique situation, but the Supreme Court has already held that even if you enjoy immunity, you are also subject to being investigated. So, that would be one of the consequences of that investigation.”
Also throwing his weight behind Sagay’s submission, Chief Emeka Ngige, SAN, said: “If during an investigation the EFCC discovers that a particular account has been used for money laundering, the commission has the right to freeze the account pending the outcome of the investigation. It is not touching the account but just suspending the usage of the account.
“It does not matter whether the account belongs to a governor or not. I have said in the past that the Supreme Court had ruled in a past case that immunity shields governors from arrest and prosecution but not from an investigation.
“The apex court ruled that the governors have no immunity against investigation. The commission is empowered by the law to investigate governors and if in the course of their investigation, they find that an account has been used for money laundering they can freeze it.”
It is illegal and unconstitutional for the account of a sitting governor to be frozen while in office. The governor enjoys immunity under Section 308 of the 1999 Constitution and for whatever purpose, his account cannot be frozen. Section 308 of the Constitution grants immunity to the governor and his deputy just as it grants immunity to the President and his vice-president.
“You cannot freeze the account of a President while he is still in office just like you cannot freeze the account of a governor while he is still in office. You can wait till he leaves office. Since he enjoys immunity, the same thing applies to his finances and all his property.
“My take on this matter is that we should be very careful so that we don’t over-stretch our democracy or overheat the polity. The last time I checked, we are supposed to be operating a constitutional democracy that thrives on the rule of law as observers of human rights and not military dictatorship. I plead with President Muhammadu Buhari to call the EFCC to order as they are making Nigeria a laughing stock in the eyes of the international community.”
On his part, Afenifere’s National Publicity Secretary, Mr. Yinka Odumakin, said the move was an abnormality but was quick to call on the commission to give an explanation as to why it took the step.
Odumakin said: “If it was done, it is an abnormality. What crime did he commit? Did he keep the money of the state in his private account? What level of investigation have they done to warrant the closure of his personal account?
“People will see this as an attempt to witch-hunt and muzzle him. If it is true, it will be the height of high-handedness. They owe the country an explanation, and they must tell us why they did such.”
Lawyer and human rights activist, Tokunbo Mumuni, said: “The fact that the governor is in power does not mean he cannot be investigated. This has been settled in the case of Fawehinmi vs. Tinubu. However, he has immunity from any prosecution. On the issue of his frozen account, if it is true, that means the anti-graft agency must have secured a valid court order. If this is not done, the exercise remains invalid and illegal.
“If the court feels that, indeed, there is a commission of a crime relating to the account or the owner of the account, the court has the power to freeze the account pending investigation. Like I said, there must be a valid order of the court, which must be the instrument to be executed.”
Lagos lawyer, Nnamdi Chukwuma, said: “There is nothing big or serious about the freezing of an account belonging to a state governor. If it is his personal account, he is like any other bank customer, whose transaction is subject to extant laws. However, what is big is that the account cannot be validly frozen except there is an existing court order.
“The governor cannot claim political victimization, if the EFCC got a valid court order which will be based on the averment canvassed before the court. There is no court that can grant an order without being convinced of the facts presented before it.”