Alleged corruption: Why Fayose should not enjoy immunity-SERAP
Socio-Economic Rights and Accountability Project (SERAP) has stated that
“the freezing of Governor Ayodele Fayose's account by the Economic and
Financial Crime Commission (EFCC) is lawful under section 308 of the 1999
constitution and international law particularly the UN Convention against
Corruption to which Nigeria is a state party.”
The group argued that, “The freezing of the account is a preventive
measure targeting the rem, which is necessary for the conduct of an
effective investigation of allegations of corruption involving former
National Security Adviser Sambo Dazuki.”
The group in a statement today by its executive director Adetokunbo Mumuni
stated that, “The freezing of accounts of sitting governors and other
high-ranking public officials accused of corruption is essential for the
flow of investigation which is allowed under section 308. The
investigation is pointless without the freezing of the account.”
The statement reads in part: “Specifically, article 30 of the UN
Convention against Corruption entrenches a functional notion of immunity;
that is, it attaches to the office and not the office holder. Under
article 30, states are required to ensure that immunity of public
officials is not used as a ploy to frustrate prosecution of cases
involving other persons such as Dazuki, accused of corruption. SERAP
believes without the freezing of the accounts of Fayose by the EFCC, the
investigation and adjudication of corruption and money laundering
allegations involving the former National Security Adviser may be
undermined, which will directly violate article 30 requirements.”
“Similarly, article 31 of the convention covers the 'what' and not the
'who'. It allows states to take measures to identify, trace, restrain,
seize or freeze property that might be the object of an eventual
confiscation order. One such measure provided for under the provision is
to ensure that anticorruption bodies such as the EFCC can adopt
provisional measures including freezing of assets involved in suspicious
transaction reports, at the very outset of an investigation.”
“According to the UN Technical Guide on the interpretation of the
convention, 'to be effective, restraint, seizure or freezing measures by
anticorruption agencies should be taken ex parte and without prior notice.
Where judicial authorization is required, the procedure should be
fashioned in such a manner as not to delay the authorization and frustrate
the procedure.”
“The Guide also provides that 'under an administrative freezing system,
the agency receiving the suspicious report is empowered to decide upon a
provisional freezing, and its decision is subject to judicial
confirmation. In automatic freezing, the gatekeeper is obligated to freeze
the assets involved in the transaction at the time of reporting, without
tipping off its client, and for a short period of time within which a
competent authority must decide whether to keep the assets frozen or not.
In both cases, the decision is moved forward in order to increase
efficiency and allow for timely freezing.'”
“The objective of this in rem procedure of freezing is a temporary
immobilization of any account pending investigation into allegations of
corruption cases. Freezing of accounts only covers the rem and is
different from confiscation which is linked to the conviction of a
defendant that could only be adopted in personam.”
“Article 30 and 31 provisions are clearly binding on Nigeria. This is in
keeping with the general principles of international law, as provided
under customary international law and articulated in the Vienna Convention
on the Law of Treaties 1969, which provide that a state cannot invoke
domestic law as a defense for failing to implement an international
obligation.”
“Immunity shouldn't be available to bar effective investigation of
corruption cases including freezing of accounts because such cases are
entirely unrelated to the legitimate exercise of constitutional powers by
public officials covered under section 308. Immunity doesn't mean impunity
and a licence for serving high-ranking public officials including
governors to imply that they are untouchable in cases of allegations of
corruption against them.”
“In several cases, the Supreme Court of Nigeria has made it clear that
immunity under section 308 is not absolute and does not bar investigation
of serving high-ranking public officials such as Governor Fayose,
including relating to allegations of corruption. International and
regional courts have also circumscribed the application of immunity in
corruption matters.”
“SERAP notes that apart from the UN Convention against Corruption, the
African Union Convention on Preventing and Combating Corruption which
Nigeria has ratified also includes mandatory provisions requiring states
to restrict the scope of application immunity for public officials in
corruption matters. The Commowealth has also urged member states to commit
themselves to take active steps to ensure the removal of immunity in
corruption cases.”
“As provided by the UN through the Technical Guide to the UN Convention
against Corruption, article 30 of the convention allows for sanctions
which take into account the gravity of allegations of corruption and
requires states to strike an appropriate balance between immunity of
public officials and the need to tackle corruption and achieve effective
law enforcement.”
“Article 30 even provides for the reversing of burden of proof in order to
facilitate the determination of the origin of proceeds of corruption. This
is different from a reversal of the burden of proof regarding the elements
of the offence which is directly linked with the presumption of
innocence.”
“The spirit of the 1999 constitution as reflected in chapters 3 and 4
include the prevention of corruption and promotion of transparency,
accountability, the rule of law, and good governance. The chapters
establish standards of conduct for the correct, honourable and proper
fulfilment of public functions. Clearly, these principles are the very
antithesis of high-level official corruption.”
“SERAP therefore believes that the Fayose case provides an important
opportunity for the Attorney General of the Federation and Minister of
Justice Abubakar Malami to approach the Supreme Court to test the scope of
application of section 308 in corruption matters in light of international
consensus and gravity and consequences of high-level official corruption
in the country.”
“It's very unlikely that in the current situation of our country the
Supreme Court will extend the application of section 308 to grand
corruption cases. It would be inconsistent and incompatible with the
letter and spirit of the constitution and the principles it entrenches if
serving senior public officials suspected of corruption are able to use
section 308 to shield themselves from criminal liability.”
“It would amount to a travesty of justice for section 308 to be
interpreted in a manner that will render sitting governors and other
high-ranking public officials effectively above and beyond the reach of
the law.”
“SERAP also notes the EFCC Report on the investigation of 31 former
governors while in office, which was presented to the National Assembly in
2006 by the former Chairman of the EFCC, Mr Nuhu Ribadu. The Report, which
was accepted and adopted by the National Assembly, documented the cases
and indictments against the former governors. SERAP reiterates its call to
Mr Malami to take steps to take over the cases and prosecute all 31 former
governors suspected of official corruption while in office.”
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