DOES THE EFCC HAVE POWER TO FREEZE STATE GOVERNMENT ACCOUNTS?, By Chinmennma Okolo

Only recently the media space was awash with the unsavoury information that the EFCC under the guise of investigating alleged fraud had frozen the accounts of two opposition states to wit Benue and Akwa Ibom.

A couple of days later further news emerged that the EFCC had issued a statement denying freezing the Akwa Ibom state government accounts and then another press release stating that it has unfrozen the Benue state government accounts.

From the above it was obvious that the EFCC had frozen at least a state government account to wit Benue State.

Unfortunately most of our leading lights in the legal profession kept mute on this matter and those who spoke, spoke from the prism of partisan divide. And this is the very sad part.

The powers granted the EFCC in our obvious desire to be seen to be fighting corruption are quite wide. The power to freeze and account which is another name for temporary forfeiture is contained in sections 26 and 28.

Section 26 provides “Where a person is arrested for an offence under this Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such illegal act and shall thereafter cause to be obtained an interim attachment order by the Court.” whilst Section 28 (b) provides “any assets or property has been seized by the Commission under this Act, the Commission shall cause an application to be made to the Court for an interim order forfeiting’ the property concerned to the Federal Government and the Court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government.”

Also section 33(1) provides: Notwithstanding anything contained in any other enactment or law, where any person is arrested under this Act, the Chairman of the Commission may if he is satisfied that the money in the account of an arrested person is made though the commission of an offence under this Act may apply to’ the Federal High Court exparte for power to issue or instruct a bank examiner or such other appropriate regulatory authority 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 where the account is or believed by him to’ be or the head office of the bank or other financial institution to’ freeze the account.”

Flowing from the above the EFCC can freeze an account ONLY when it has a prima facie evidence of the account being used for fraud! And then it must apply to the court for an interview order of forfeiture which court shall ONLY GRANT such an order where it is satisfied that there is a prima facie evidence that the account is used for fraud!

Note also that the application is exparte, that is without notice to the other party, such orders usually are for seven (7) days and further renewal of another seven (7) days totally 14 days. Such orders are not meant to be in perpetuity! Our courts most rise to the occasion to refuse to be blackmailed by the EFCC in doing anything contrary. Thus any interim forfeiture exceeding the above is in itself illegal and a form of corruption!

But does this power extend to State Government accounts? It is my humble submission that the power does not extend to State Government accounts.

My reasons are simple:

1. The 1999 constitution of Nigeria as amended holds that it is ONLY the Auditor-General of a state that has the statutory powers to audit (read investigate) a state government account. Section 125 (2) provides “The public accounts of a State and of all offices and courts of the State shall be audited by the Auditor-General for the State who shall submit his reports to the House of Assembly of the State concerned, and for that purpose the Auditor-General or any person authorised by him in that behalf shall have access to all the books, records, returns and other documents relating to those accounts.” subsection 4 further provides “The Auditor-General for the State shall have power to conduct periodic checks of all government statutory corporations, commissions, authorities, agencies, including all persons and bodies established by a law of the House of Assembly of the State.”

Nowhere in the 1999 Constitution of Nigeria as amended was power given to the EFCC to investigate or audit a state government accounts! I am willing to learn if such power exists.

2. The ONLY body empowered by law to conduct investigations into the stage government accounts is the House of Assembly of the state. Section 128(1) (b)(ii) provides “(1) Subject to the provisions of this Constitution, a House of Assembly shall have power by resolution published in its journal or in the Office Gazette of the Government of the State to direct or cause to be directed an inquiry or investigation into -“

(b) (ii) “disbursing or administering moneys appropriated or to be appropriated by such House.”

Flowing from the above it is my humble considered opinion that the EFCC lacks the power to freeze a state government accounts and even at that MUST obtain a court Order to sustain a freezing of even individuals accounts. The EFCC Act obviously needs some amendments to clearly state it’s boundaries.

Thus the EFCC freezing the accounts of Benue State government is ultra vires!

In conclusion any misuse of state power or state apparatus is in itself the highest form of corruption!