The Economic and Financial Crimes Commission should follow the rule of law and not be seen as doing the bidding of the ruling All Progressives Congress in the freezing of the bank accounts of Osun state government, says a legal expert.
Bolaji Oluwatosin, a legal practitioner, told Peoples Gazette that the anti-corruption agency had limited power to freeze the accounts.
“The EFCC possesses a limited power to place a temporary stop order or post-no-debit restriction upon any account, including the account of a state government, for a period not exceeding 72 hours without first obtaining a court order,” he told The Gazette.
He explained that the power is conferred by the Money Laundering (Prevention and Prohibition) Act and was affirmed by the Court of Appeal in UBA Plc v. AG of Benue State & Ors (2022) LPELR-58695(CA), EFCC v AG Benue State (2022) LPELR, the companion appeal of the Commission itself.
EFCC froze the state’s account for alleged diversion of public funds ahead of the August 15 governorship election. In a statement on Thursday, Governor Ademola Adeleke, who spoke through Oluomo Kolapo Alimi, Commissioner for Information and Public Enlightenment, dismissed the allegation of a looted N11 billion.
Mr Adeleke had raised the alarm that EFCC was plotting to freeze the Osun government’s account ahead of the August 15 governorship election.
Mr Oluwatosin said beyond the statutory period of 72 hours, no further restriction may lawfully be maintained except upon the order of a court of competent jurisdiction obtained pursuant to Section 34 of the Economic and Financial Crimes Commission (Establishment) Act, 2004.
He added that an indefinite or open-ended restriction imposed by administrative letter alone was ultra vires and unlawful.
The lawyer noted that before freezing an account for more than 72 hours on suspicion, EFCC must place sufficient material before a court of competent jurisdiction by way of an ex parte application under Section 34 of the EFCC Act and obtain a formal order before any further restriction may be imposed or continued.
“An administrative directive, however strongly worded, cannot take the place of a judicial order in a constitutional democracy founded upon the rule of law. Any restriction beyond the 72-hour window that is unsupported by a court order is null and of no effect,” he said.
When asked how to ensure EFFC’s actions are not perceived politically, Mr Oluwatosin said the commission must demonstrate, by concrete and transparent adherence to the law, that its actions are driven solely by the requirements of investigation and not by political considerations.
He explained that if the state believes the action is unlawful, the state is entitled, and indeed duty-bound, in the public interest, to approach the Federal High Court without delay for appropriate declaratory and injunctive reliefs.
“A declaration that any restriction imposed beyond the statutory 72-hour period and without a court order is ultra vires, null and void. An order of certiorari or prohibition quashing the offending directive and a mandatory order compelling the bank to lift the restriction forthwith so that the machinery of government may continue to function,” he said
He noted that such further orders, including damages, as the justice of the case may require.
Mr Oluwatosin stated that given the proximity of the election and the potential disruption of essential public services, the court should be invited to hear and determine the application with the utmost expediency.
“The legality of the commission’s conduct remains a matter for judicial determination, for ours is a government of laws and not of administrative discretion,” he told The Gazette.