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Alleged corruption: Why Fayose should not enjoy immunity-SERAP

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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

“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

“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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