Socio-Economic Rights and Accountability Project (SERAP) has stated that<\/p>\n
\u201cthe freezing of Governor Ayodele Fayose\u2019s account by the Economic and
\nFinancial Crime Commission (EFCC) is lawful under section 308 of the 1999
\nconstitution and international law particularly the UN Convention against
\nCorruption to which Nigeria is a state party.\u201d<\/p>\n
The group argued that, \u201cThe freezing of the account is a preventive
\nmeasure targeting the rem, which is necessary for the conduct of an
\neffective investigation of allegations of corruption involving former
\nNational Security Adviser Sambo Dazuki.\u201d<\/p>\n
The group in a statement today by its executive director Adetokunbo Mumuni
\nstated that, \u201cThe freezing of accounts of sitting governors and other
\nhigh-ranking public officials accused of corruption is essential for the
\nflow of investigation which is allowed under section 308. The
\ninvestigation is pointless without the freezing of the account.\u201d<\/p>\n
The statement reads in part: \u201cSpecifically, article 30 of the UN
\nConvention against Corruption entrenches a functional notion of immunity;
\nthat is, it attaches to the office and not the office holder. Under
\narticle 30, states are required to ensure that immunity of public
\nofficials is not used as a ploy to frustrate prosecution of cases
\ninvolving other persons such as Dazuki, accused of corruption. SERAP
\nbelieves without the freezing of the accounts of Fayose by the EFCC, the
\ninvestigation and adjudication of corruption and money laundering
\nallegations involving the former National Security Adviser may be
\nundermined, which will directly violate article 30 requirements.\u201d<\/p>\n
\u201cSimilarly, article 31 of the convention covers the \u2018what\u2019 and not the
\n\u2018who\u2019. It allows states to take measures to identify, trace, restrain,
\nseize or freeze property that might be the object of an eventual
\nconfiscation order. One such measure provided for under the provision is
\nto ensure that anticorruption bodies such as the EFCC can adopt
\nprovisional measures including freezing of assets involved in suspicious
\ntransaction reports, at the very outset of an investigation.\u201d<\/p>\n
\u201cAccording to the UN Technical Guide on the interpretation of the
\nconvention, \u2018to be effective, restraint, seizure or freezing measures by
\nanticorruption agencies should be taken ex parte and without prior notice.
\nWhere judicial authorization is required, the procedure should be
\nfashioned in such a manner as not to delay the authorization and frustrate
\nthe procedure.\u201d<\/p>\n
\u201cThe Guide also provides that \u2018under an administrative freezing system,
\nthe agency receiving the suspicious report is empowered to decide upon a
\nprovisional freezing, and its decision is subject to judicial
\nconfirmation. In automatic freezing, the gatekeeper is obligated to freeze
\nthe assets involved in the transaction at the time of reporting, without
\ntipping off its client, and for a short period of time within which a
\ncompetent authority must decide whether to keep the assets frozen or not.
\nIn both cases, the decision is moved forward in order to increase
\nefficiency and allow for timely freezing.\u2019\u201d<\/p>\n
\u201cThe objective of this in rem procedure of freezing is a temporary
\nimmobilization of any account pending investigation into allegations of
\ncorruption cases. Freezing of accounts only covers the rem and is
\ndifferent from confiscation which is linked to the conviction of a
\ndefendant that could only be adopted in personam.\u201d<\/p>\n
\u201cArticle 30 and 31 provisions are clearly binding on Nigeria. This is in
\nkeeping with the general principles of international law, as provided
\nunder customary international law and articulated in the Vienna Convention
\non the Law of Treaties 1969, which provide that a state cannot invoke
\ndomestic law as a defense for failing to implement an international
\nobligation.\u201d<\/p>\n
\u201cImmunity shouldn\u2019t be available to bar effective investigation of
\ncorruption cases including freezing of accounts because such cases are
\nentirely unrelated to the legitimate exercise of constitutional powers by
\npublic officials covered under section 308. Immunity doesn\u2019t mean impunity
\nand a licence for serving high-ranking public officials including
\ngovernors to imply that they are untouchable in cases of allegations of
\ncorruption against them.\u201d<\/p>\n
\u201cIn several cases, the Supreme Court of Nigeria has made it clear that
\nimmunity under section 308 is not absolute and does not bar investigation
\nof serving high-ranking public officials such as Governor Fayose,
\nincluding relating to allegations of corruption. International and
\nregional courts have also circumscribed the application of immunity in
\ncorruption matters.\u201d<\/p>\n
\u201cSERAP notes that apart from the UN Convention against Corruption, the
\nAfrican Union Convention on Preventing and Combating Corruption which
\nNigeria has ratified also includes mandatory provisions requiring states
\nto restrict the scope of application immunity for public officials in
\ncorruption matters. The Commowealth has also urged member states to commit
\nthemselves to take active steps to ensure the removal of immunity in
\ncorruption cases.\u201d<\/p>\n
\u201cAs provided by the UN through the Technical Guide to the UN Convention
\nagainst Corruption, article 30 of the convention allows for sanctions
\nwhich take into account the gravity of allegations of corruption and
\nrequires states to strike an appropriate balance between immunity of
\npublic officials and the need to tackle corruption and achieve effective
\nlaw enforcement.\u201d<\/p>\n
\u201cArticle 30 even provides for the reversing of burden of proof in order to
\nfacilitate the determination of the origin of proceeds of corruption. This
\nis different from a reversal of the burden of proof regarding the elements
\nof the offence which is directly linked with the presumption of
\ninnocence.\u201d<\/p>\n
\u201cThe spirit of the 1999 constitution as reflected in chapters 3 and 4
\ninclude the prevention of corruption and promotion of transparency,
\naccountability, the rule of law, and good governance. The chapters
\nestablish standards of conduct for the correct, honourable and proper
\nfulfilment of public functions. Clearly, these principles are the very
\nantithesis of high-level official corruption.\u201d<\/p>\n
\u201cSERAP therefore believes that the Fayose case provides an important
\nopportunity for the Attorney General of the Federation and Minister of
\nJustice Abubakar Malami to approach the Supreme Court to test the scope of
\napplication of section 308 in corruption matters in light of international
\nconsensus and gravity and consequences of high-level official corruption
\nin the country.\u201d<\/p>\n
\u201cIt\u2019s very unlikely that in the current situation of our country the
\nSupreme Court will extend the application of section 308 to grand
\ncorruption cases. It would be inconsistent and incompatible with the
\nletter and spirit of the constitution and the principles it entrenches if
\nserving senior public officials suspected of corruption are able to use
\nsection 308 to shield themselves from criminal liability.\u201d<\/p>\n
\u201cIt would amount to a travesty of justice for section 308 to be
\ninterpreted in a manner that will render sitting governors and other
\nhigh-ranking public officials effectively above and beyond the reach of
\nthe law.\u201d<\/p>\n
\u201cSERAP also notes the EFCC Report on the investigation of 31 former
\ngovernors while in office, which was presented to the National Assembly in
\n2006 by the former Chairman of the EFCC, Mr Nuhu Ribadu. The Report, which
\nwas accepted and adopted by the National Assembly, documented the cases
\nand indictments against the former governors. SERAP reiterates its call to
\nMr Malami to take steps to take over the cases and prosecute all 31 former
\ngovernors suspected of official corruption while in office.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"
Socio-Economic Rights and Accountability Project (SERAP) has stated that \u201cthe freezing of Governor Ayodele Fayose\u2019s account by the Economic and Financial Crime Commission (EFCC) is lawful under section 308 of…<\/p>\n","protected":false},"author":1,"featured_media":19332,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","footnotes":""},"categories":[5],"tags":[],"class_list":["post-50704","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news"],"yoast_head":"\n