Legality of EFCC’s freezing of state govts’ accounts
The freezing of accounts belonging to the Benue and Akwa Ibom State governments by the Economic and Financial Crimes Commission (EFCC) last week has continued to draw legal comments.
The EFCC claimed that between June 30, 2015 and March 2018, the governor of Benue State ordered the withdrawal of N21.3 billion from four government’s accounts including Guaranty Trust Bank, First Bank of Nigeria and the United Bank for Africa.
The governor of Zamfara State speaking as chairman of the Nigerian Governors’ Forum, Abdulazeez Yari has condemned the freezing of the Benue state and others as unconstitutional. He described it as “shutting down government.”
Reacting to the development, the Chief Press Secretary to the Benue State government, Terver Akase described it as a continuation of “the political witch-hunt against Governor Samuel Ortom.”
He said the action will have a negative impact on the running of government in Benue State, and will affect salaries, pensions and other sundry payments.
Also reacting, the Akwa Ibom State Government, through the Commissioner for Justice, Uwemedimo Nwoko, condemned the freeze of its account as “unjustified, unconstitutional and inexplicable.”
Speaking on this, the General Secretary of the Nigerian Bar Association (NBA), Isiaka Olagunju referred to the decision of the Supreme Court, which in 2004 upheld the argument of the then Attorney General of Lagos State, Prof Yemi Osinbajo “that the President of the Federal Republic of Nigeria has no right to withhold the payment of fund due to the Local Government Councils from the Federation Account under Section 162 subsection (5) of the 1999 Constitution of the Federal Republic of Nigeria.”
If the Supreme Court presided by former Chief Justice of Nigeria (CJN), Justice Muhammed Uwais ruled that then President Olusegun Obasanjo had no powers to seize the funds accruing to Lagos State on account of the creation of more development areas in the state, what more for an agency of the federal government?
However, the law grants the antigraft agencies like the Economic and Financial Crimes Commission (EFCC) Act, 2004 and the Independent Corrupt Practices Commission (ICPC) Act, powers for asset forfeiture after such is attached in civil proceedings, such powers are only exercisable where such asset are privately held, according to former Director of Public Prosecution, Lagos State, Fola Arthur-Worrey while speaking on TV programme.
“A public treasury is a public property. It is illegal, to freeze such accounts. They don’t have that power. No agency can be given such power. If any agency has such power, that means you can disrupt anything. You will stop the payment of salary, services, debts etc,” Arthur-Worrey said.
Also emphasizing this point, the Second Vice President of the NBA, Onyekachi Ubani said the accounts of state governments are untouchable even where criminal activities are established around it.
“If you have any criminal activities going on around the money you probably trail the criminal money and if it goes into personal accounts you can seize it. But you cannot stop the account used in paying salaries and carrying out other government activities,” he said.
Section 162 sub-sections 3 and 4 of the 1999 Constitution provides sources of state and local governments’ revenue as the Federation Account. Many also rely on taxes and rents.
Barr E.M.D. Umukoro said sections 120 to125 of the 1999 Constitution provides that states funds are referred to as “public funds”, adding that “only the Auditor General of the state that can inquire (audit) the state account.”
On his part, Hameed Ajibola Jimoh Esq. submits that Section 28 of the EFCC Act as well as Parts 33 and 34 of the Administration of Criminal Justice Act (ACJA) envisages that a person whose account can be frozen is actually corporate bodies and not state government accounts.
From what lawyers have said, such powers granted the anti-graft agencies for confiscation or forfeiture, are only in respect of public funds diverted to personal accounts or properties.
For instance, Section 27 (4) of the EFCC Act provides thus: “Subject to the provisions of section 24 of this Act, whenever the assets and properties of any person arrested under this Act are attached, the General and Assets Investigation Unit shall apply to the Court for an interim forfeiture order under the provision of this Act.”