The group also backed the EFCC move to freeze Fayose's bank account, saying it is lawful.
The group said that the freezing of Fayose's account was 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 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,” it said.
In a statement issued on Sunday, June 26, by the SERAP executive director, Adetokunbo Mumuni, the group said “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 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.
“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.”
The group further noted 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 of immunity for public officials in corruption matters.
It said the Commowealth also urged member states to commit themselves to take active steps to ensure the removal of immunity in corruption cases.