The law is very clear in the matter of Nigeria’s anti-graft agency, the Economic and Financial Crimes Commission, EFCC, and the recent illegal move to freeze the bank account of Ekiti State governor, Mr. Ayo Fayose.
By the provisions of sec 34(1)of the EFCC Act, the EFCC does not have the right or power in law to freeze the account of governor Fayose or any person without FIRST approaching a court of law for a court order to freeze the bank account.
Having already established that under the law, the EFCC MUST approach the court before it can validly freeze the account of anybody, the next issue is whether the commission can approach the court for an application to freeze Fayose’s account. The answer to this question is an emphatic NO.
I base my answer on the constitutional immunity granted Fayose by sec 308 of the current constitution of Nigeria.
The effect of that immunity is that Fayose, as long as he remains governor, can not be taken to court for any reason whatsoever. The immunity offers complete protection from court cases – whether civil or criminal.
What this means is that no person, including the EFCC, can approach any court in Nigeria seeking any relief – civil or criminal – against Fayose in his personal capacity. You can not take Fayose to court and the dilemma is : You can not freeze Fayose’s account without taking Fayose to court.
It should be noted that this immunity does not by any means prevent law enforcement agencies from investigating Fayose. He can be investigated. But the law is that he can not be taken to court as long as he is a governor. You can investigate him and take the file of your investigation to court after he ceases to be governor.
This means that if part of your investigation involves approaching the court to seek a relief against Fayose, then, you are immediately hampered and your investigation, in that area, has come to an end.
Whether you like it or not, whether it is fair or not, that is the law of the land.
It is called the rule of law. If you don’t like the law, you can go the the National Assembly to change it. But, as long as it is not repealed, it remains effective and must be obeyed by every person, especially agencies of government created by law.
I think that the lawyers of EFFC have told the commission that it can not approach any court to seek a relief freezing Fayose’s bank account. I think they know that no court in Nigeria would entertain such an application in view of section 308 of the constitution.
That is why the EFCC has resorted to to taking laws into its hand by freezing the account without recourse to the court.
Aniefiok I. Udoabasi is a legal practitioner and Head of Practice at The Brook Chambers. He is a chartered arbitrator and public affairs analyst. Connect with him on Facebook.
The opinions expressed in this article are solely those of the author.