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ASSESSING THE EFCC'S POWER TO FREEZE THE ACCOUNTS OF STATE GOVERNMENTS

ASSESSING THE EFCC’S POWER TO FREEZE THE ACCOUNTS OF STATE GOVERNMENTS

By Akanimo Ukpe, Esq., LLM

The Economic and Financial Crimes Commission was established by virtue of Section 1 of the Economic and Financial Crimes Commission (Establishment) Act, 2004. The core responsibilities of the Commission are prescribed by Section 6 of the Act to include the investigation of all Financial Crimes including Advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam; the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crime related offences or the properties the value of which corresponds to such proceeds, amongst other responsibilities.
Section 7 of the Act gives the Commission power to among others cause investigations to be conducted as to whether any person, corporate body or organization has committed an offence under the Act or other Law relating to economic and financial crimes or to cause investigations 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 the source of income.
The Power of the EFCC to freeze accounts is created by Section 34 of the Act. By this provision, where the Chairman of the EFCC or any other officer authorized by him is satisfied that the money in the account of a person is made through the commission of an offence under the Act or in other related enactments, such should apply to the Court exparte for the power to issue an order to freeze the account. The order should be addressed to the Manager of the Bank or any person in control of that Financial Institution, or a designated non-financial institution as the case may be. Upon the grant of the exparte application, the Chairman or other authorized officer of the Commission may then direct the Bank, other Financial Institution, or non-Financial Institution to supply any information and produce books or documents relating to the account, and to stop all outward payments, operations or transactions in respect of that person.
From the totality of the above provisions, it is clear that the EFCC Act does not empower the Commission to investigate the Federal, State or Local Government as an entity in the Federation. The Act repeatedly uses the word ‘person’ in the natural sense of it and does not expressly nor impliedly define the word to be inclusive of a State Government which is a Federating Unit sui generis under Section 2(2) of the Constitution.
It follows that the EFCC cannot even legally invoke Section 34 of its Act to apply for an exparte order to freeze the account of a State Government. Obviously the operative words in Section 34(1), “if satisfied that the money in the account of a person is made through the commission of an offence under the Act…” cannot under any rule of interpretation be applied to a State Government as monies that enter Government accounts are statutory arising from statutory allocations, and/or proceeds of taxation. The EFCC clearly acted in error when it purportedly froze the accounts of the Benue and Akwa Ibom State Governments recently.
Breathing life to this, the Federal High Court in Attorney General, Ekiti State and 17 Ors v. EFCC and 17 Ors FHC/AD/CS/32/2016 (unreported) held that the EFCC could not usurp the oversight functions Constitutionally vested in a State House of Assembly under Sections 128 and 129 of the 1999 Constitution. It went further to hold that “the first defendant (EFCC) is bound to operate within the Constitution and cannot operate like the lord of the manor. It is statutory duty and not a licence to contravene the Constitution.”
Resolving the question of who a ‘person’ is under the Act, the Court further held that “yes, the first defendant can investigate any person or corporate organization, what it can’t do is to usurp the powers of the Assembly….” which means that in respect of State Governments, the Commission is bereft of the powers to investigate or to even freeze their accounts.
Notably, the Supreme Court in Diamond Bank Plc v. Opara & Ors. (2018) Vol. 277 LRCN SC. 1, held that the powers conferred on the Economic and Financial Crimes Commission pursuant to Section 6(b) of its Act is to receive complaints and prevent and/or fight the commission of financial crimes in Nigeria and nothing more. The question is, can a State Government commit financial crimes? Obviously no! It is the individuals in Government who can commit financial crimes. There is therefore no basis for the Commission to brazenly freeze the account of a State Government. It is preposterous, unconscionable and unlawful. The Constitution has created a mechanism for investigating a State Government’s account and that is through the State House of Assembly via Sections 128 and 129 of the Constitution of the Federal Republic of Nigeria (as amended).
That having been settled, it is pertinent for the Commission to always act lawfully in discharging its duties. Without an order of Court, the Commission should not attempt to freeze any account. Banks should also realize that they are under a duty to ensure that the Commission’s directives to freeze any account are accompanied with a competent order of Court. Customers should also know that they have the right to peruse the order of Court upon which their accounts are frozen, and where it is apparent that such was not granted, or that the powers were abused, they may sue both the Bank and the Commission, and demand for damages.



Akanimo Ukpe, Esq., LLM (Ibadan) is a Legal Practitioner and human rights activist based in Uyo, Akwa Ibom State and can be reached via akanimoukpe@gmail.com or 07062726217.


Disclaimer: This article does not constitute legal advice...
*published on this blog on permission by the author.                            

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