The Attachment Of The Accounts Of Benue And Akwa Ibom State Governments By The Economic And Financial Crimes Commission Is Impunity Taken Too Far–Agbada S. Agbada Esq.


Not long after assuming office on 29th May 2015, the present government began to demonstrate to Nigerians that its respect for the rule of law will be contingent on the whims of the President.
This posture was demonstrated in the massacre of hundreds of unarmed Shiites in Zaria in December 2015, the indefinite detention of their leader and the inglorious attempt by the President to justify the massacre on national television, the incarceration of the leader of the Indigenous People of Biafra (IPOB), the wanton killing of unarmed protesters of the group and the eventual dance of death by the Python in the South East, the brazen disregard of several court orders, including that of the ECOWAS Community Court of Justice granting bail to, and ordering the immediate release of the erstwhile National Security Adviser, Col. Sambo Dasuki (Rtd) and the siege on the National Assembly by the Department of State Service which was arguably inspired by the culture of impunity and body language of the President. As a matter of fact, the President and his Attorney-General, Abubakar Malami, a Senior Advocate of Nigeria have constituted themselves as the Supreme Court with powers to review and set aside decisions of superior courts of record that do not synch with the expectations and interests of the President and the APC. With such a robust profile of impunity, respect for rule of law and observance of fundamental democratic tenets by the government are ordinarily not to be expected.
While not expecting any improvement in the democratic profile of this government, the freezing of the accounts of Benue and Akwa Ibom States still provoke shock. This action of the Economic and Financial Crimes Commission (EFCC) is another hapless precedence in our democratic history and journey, and should be registered, treated and remembered for what it is: a barefaced, unpretentious and unabashed dramatization of impunity.
Given the tendency of perpetrators of impunity to seek justification of their actions in the law in some way, this disquisition on the legality or otherwise of the freezing of State Governments’ accounts by the EFCC becomes imperative to make it clear that a resort to the extant provisions of the law cannot be made to give the act a veneer of legitimacy.
There is no doubt that the EFCC is empowered by section 28 of the EFCC Act (the Act) to attach assets that are suspected to be proceeds of economic and financial crimes. For the sake of clarity, the section is reproduced below:
“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 economic or financial crime and shall thereafter cause to be obtained an interim attachment order from the Court.”
It is clear from the above provisions of section 28 of the Act that for the power of attachment to be activated, the owner of the assets sought to be attached must first be arrested, and the assets must be suspected to be proceeds of economic and financial crime. The question therefore is whether the attachments of the accounts of the state governments satisfy these conditions.
While the freezing of the accounts may not be unconnected with some allegations of financial impropriety of the respective state governors, such impropriety, even if established, can only attach to the governor or officers of the government. This accords with both logic and law. If a crime has been committed in respect of state funds, the state itself is the victim and not the culprit. Again, the law is trite that there is no vicarious criminal liability in our criminal justice system. This elementary principle is to the effect that a person cannot be punished for the crimes of another. See PML (NIG) LTD v. FRN (2017) LPELR-43480(SC) where the Supreme Court reiterated the position of the law in the following words:
“In this case, the Appellant contends that once the Respondent collected money from Lucky Igbinedion, the offences alleged against it had been “effectively compromised, compounded or condoned”.
The Respondent countered that the Appellant’s submission by which it has tried to import the principle of agency into our criminal jurisprudence is not only strange but misconceived bearing in mind that in our criminal jurisprudence, criminal liability is personal – ACB V. Okonkwo (1997) 1 NWLR (pt.480) 194. Thus, it will not be a valid defence in law for any person, who is alleged to have committed an offence to argue that while committing that offence he was acting as agent of a principal since it is not a defence that is known to law.
Very true; criminal liability is personal, it cannot be transferred because the mens rea or actus reus is on the accused in Court – See Akpa v State (2008) 14 NWLR (pt. 1106) 72.”    Underlined for emphasis.
The Governments of Benue and Akwa Ibom or any state for that matter do not and cannot be made to bear the criminal liability of their Governors or officers. It follows therefore that the accounts of State Governments cannot be validly attached by the EFCC for alleged criminal acts of their governors or other officers. It is the accounts of the Governors or the responsible state officials that can be attached by the EFCC for their personal acts.
Again, the EFCC can only invoke its powers under section 28 of the Act upon the arrest of the person suspected to have committed an economic or financial crime. Therefore, even the personal accounts of the Governors of Benue and Akwa Ibom States can only be frozen upon their arrest. However, these Governors are protected from arrest by the veil of immunity under section 305 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therefore, the EFCC can neither invoke its powers under section 28 of the Constitution against the Governors nor the Governments of the States.
It is settled law that where the law has stipulated a condition for the doing of an act, the failure to satisfy the condition renders the act unlawful. Kayode v. State (2008) 1 NWLR (Pt. 1068) 281 at P. 301. paras. B-G is authority on this point. In the context of section 28 of the Act, the Court of Appeal in GEONEL INTEGRATED SERVICES LTD v. EFCC (2018) LPELR-44012(CA) stated thus:
“…the powers of the trial Court to grant an interim forfeiture order is clearly not in doubt; what is in issue is whether the grant of such order freezing the appellant’s accounts is in order. Sections 28 and 29 of the EFCC Act clearly empower the respondent in this case, upon the arrest of any person suspected of committing economic and financial crimes to administratively trace and attach, all the assets and properties of such a person and, cause an interim order of attachment or forfeiture to be obtained in respect of such assets. These two sections of the Act place the burden squarely on the respondent to establish that there is a prima facie evidence that the property in issue is liable to be forfeited on account of its being proceeds of crime, and that burden is discharged once there is an arrest for an offence under the Act, and the respondent traces the assets and attaches the properties of the accused person acquired as a result of economic and financial crimes; that done, the respondent is entitled to an interim attachment order by the Court.”
The attachment of the accounts of State Governments is, in the light of the above judicial pronouncements and the clear provisions of the Act, unlawful in all ramifications. First, the funds of the State Governments are not the personal funds of the Governors and the perceived or alleged criminal acts of the Governors are not transferable to the States. Secondly, the condition precedent of arresting a suspect before attachment was not complied with. Finally, the funds of the State Governments, not being proceeds of economic and financial crimes by the Governors and officers of the States are not liable to be forfeited on account of alleged crimes of the Governors.
The fact that this illegality is targeted only at Benue and Akwa Ibom States in the light of the recent political developments in both states, is curious. The attachments which are bereft of any legal content are obviously being used as tools of political vendetta to emasculate the Governors by grounding the machinery of governance.
Apart from the illegality, the attachments are morally indefensible. By freezing the accounts of the States, the EFCC is only inflicting collective punishment on the people of the States. The implications of this illegality on the States are grave and far reaching. It will put governance to a halt in the States and prevent the Governments from meeting their obligations to their people. What the EFCC, their cheerleaders and instigators fail to realise is that the Governors will only be minimally affected, if at all, by this action. The real victims are the people of the States.
This is just impunity taken too far, and the subsequent unfreezing of the accounts of Benue State does not make the impunity any less grave. Such acts, no matter how frequent and brazen, should be condemned by every patriotic Nigerian. Because should we become too accustomed to or enervated by the daily assault on our nation by those who wield the levers of power and resign to indifference and inertia, we will only be unwittingly endorsing the evil we abhor and dread by bolstering the perpetrators with our collective silence.
AGBADA S. AGBADA is a Lagos based Legal Practitioner and can be reached on [email protected]