Does anti-graft agency have constitutional powers to freeze government treasuries?

Can states’ accounts be investigated and frozen for having funds suspected to be proceeds of fraud? If that were the case, can the Federal Government suffer same fate?

These are the questions that have been thrown up following the recent freezing of the bank accounts of Benue and Akwa Ibom state governments by the anti-graft agency.

The argument is that if the EFCC, a federal parastatal, has the powers to freeze accounts of a state government on account of alleged fraudulent activities, then it stands to reason that it could do same for federal accounts when such suspicion exists.

There is no doubt that the enabling law, EFCC (Establishment) Act, 2004 empowered the organisation to enforce all legislations relating to economic and financial crimes among others.

Section 6 of the Act gives the commission enormous discretionary powers. It provides as follows: (1) The Commission shall have power to –
(a) cause investigation to be conducted as to whether any person has committed an offence under this Act; and (b) with a view to ascertaining whether any person has been in offences under this Act or in the proceeds of any such offences, cause investigation to be conducted into the properties of any person if it appears to the Commission that the person’s lifestyle and extent of the properties are not justified by his sources of income.

However, the law made it explicit the manner by which to freeze accounts of a person. The bottom line is that freezing orders are supposed to be obtained from the courts.

Section 34. (1) of the Act says: “Notwithstanding anything contained in any other enactment or law, the chairman of the Commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act or any of the enactments specified under Section 7 (2) (a)- (f) of the Act, apply to the court ex-parte for the power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institutions where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account.”

The cited section says “money in the account of a person”. It did not mention account of a government. Also, sub section (2) (a) – (f) specifically said the anti-graft agency has to “apply to the court ex-parte” for the power to issue an order to a bank to freeze such accounts.

It is not clear whether those clear provisions were adhered to and what averments were made before the court to obtain the orders against the account of a state government.

In addition, Section 26 (I) that delved on the seizure of assets reads: “Any property subject to forfeiture under this Act may be seized by the Commission in the following circumstances: (a) the seizure is incidental to an arrest or search; or (b) in the case of property liable to forfeiture upon process issued by the court following an application made by the Commission in accordance with the prescribed rules.

“(2) Whenever property is seized under any of the provisions of this Act, the Commission may- (a) place the property under seal; or (b) remove the property to a place designated by the Commission. (3) Properties taken or detained under this section shall be deemed to be in the custody of the Commission subject only to an order of a court.”

The implication is that both freezing and forfeiture orders are subject to court sanctions.

Section 162 (3) of the 1999 Constitution (as amended) says: “Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly.

The constitution did not make mention of freezing of accounts in whatsoever manner, not to talk of government accounts. However, it has been established by the courts that those who enjoy immunity from prosecution as provided in Section 308 of the constitution such as governors, their deputies as well as the president and his vice could be investigated.

It is clear from the decision of the Supreme Court in Fawehinmi v. IGP that the Police, the Independent Corrupt Practices and other related Offences Commission (ICPC) and the EFCC can investigate a sitting governor.

The EFCC is a creation of an Act of the National Assembly and as such can only operate within the confines of its enabling law.

It is thus very clear from the current state of the laws and the decision in Fawehinmi v. IGP that the EFCC can investigate a sitting governor or any president. There is no evidence to show that such powers extend to freezing of government accounts.

Former chairman of the Nigeria Bar Association (NBA), Lagos branch, Mr. Chijioke Okoli (SAN), said the agency could investigate governments but expressed doubt about its powers to freeze their accounts.

According to him, if the EFCC claims such powers, it then means it could as well freeze the accounts of the Federal Government since it was presumed an independent body.

“The EFCC can investigate state accounts but whether that can extend to freezing of account is questionable. If they can do that, they precisely should also freeze that of the Federal Government, but they have never done that before. The central government and the federating states are all equal in their respective jurisdictions.

“The legal capacity to freeze state government account is in doubt. But if they think they have that power, then nothing stops them from also freezing Federal government account because they are supposed to be independent of the various governments,” he noted.

TheGuardian