Human rights lawyer and Senior Advocate of Nigeria (SAN), Femi Falana, has said the Economic and Financial Crimes Commission (EFCC) did not act illegally by restricting access to an Osun State Government account, insisting that the commission has the legal authority to freeze government accounts subject to judicial oversight.
Falana made the submission on Friday while speaking on Channels Television’s Politics Today, amid controversy over the EFCC’s restriction of an Osun State statutory allocation account.
According to the senior lawyer, existing judicial precedents have settled the question of whether the anti-graft agency can investigate and restrict the accounts of state governments.
He cited a 2022 judgment of the Court of Appeal arising from a dispute between the Benue State Government and the EFCC, which, he said, affirmed the commission’s power to impose a Post No Debit (PND) restriction on a government account for a limited period before obtaining a court order.
“Well, as far as the law is concerned, the EFCC has not acted illegally,” Falana said, adding that the commission could impose a PND restriction for no more than 72 hours before approaching the court.
“Under the law, the EFCC has the power to freeze the account of the federal government or of any state or local government in Nigeria,” he said.
Falana recalled that the Federal High Court in Benue State had ruled in 2019 that the EFCC lacked the authority to freeze the state government’s account and awarded N50 million in damages against the commission.
He, however, noted that the EFCC appealed the decision and the Court of Appeal subsequently overturned the position in a judgment delivered in September 2022.
According to him, the appellate court held that the EFCC had the power to freeze a government account and impose a PND restriction for a maximum of 72 hours, provided it subsequently obtained a court order.
“That remains the law in Nigeria today,” Falana said.
The SAN also referred to a 2024 Supreme Court judgment arising from a legal challenge instituted by the Kogi State Government and other states over the authority of anti-corruption agencies to investigate state government accounts.
He said the Supreme Court examined the relevant laws and affirmed the powers of agencies including the EFCC, the Independent Corrupt Practices and Other Related Offences Commission (ICPC) and the Nigerian Financial Intelligence Unit (NFIU) to investigate accounts at federal, state and local government levels.
“In 2024, the Kogi State government, joined by many state governments, challenged the investigation probing of state accounts by EFCC, ICPC, or NFIU. And in a historic judgment, the Supreme Court examined all the relevant laws and came to the conclusion that these agencies have the power to probe the accounts of any organisation, either at the federal, state, or local government [level]. That remains the law in Nigeria,” he said.
Falana said those seeking to alter the existing legal framework should approach the National Assembly through the appropriate legislative process.
“If Nigerians, those who are concerned, want the law changed, they can go to the National Assembly. But for now, as of today, EFCC has the power to freeze the account of any state and, in not more than 72 hours, has to go to court,” he said.
He further disclosed that the EFCC had approached the court in the Osun matter and that the Federal High Court subsequently acted on information supplied by the commission.
“In this instance, the EFCC went to court, and the Federal High Court intervened based on information provided by the EFCC,” Falana said.
The controversy followed the EFCC’s restriction of an Osun State Government statutory allocation account over what the commission described as suspicious movements of funds.
The anti-graft agency said the action formed part of an ongoing investigation into the alleged fraudulent handling of about N11 billion in Ecology Funds, intervention funds and allocations from the Federation Account Allocation Committee.
The commission maintained that the restriction was temporary, applied to only one account, and was based on its powers under the EFCC Act and the Money Laundering (Prevention and Prohibition) Act, 2022.
President Bola Tinubu subsequently directed the EFCC to approach the court to vacate the order and discontinue the action, citing concerns over its timing, particularly with the August 15 Osun State governorship election approaching.
Falana, however, clarified that the Osun State Government had challenged the legality and validity of the court order rather than merely objecting to the timing of the EFCC’s intervention.
“The President referred to the order obtained by the EFCC. And as should be done, the Osun State government has challenged the legality, the validity of the order, not the timing,” he said.
The senior lawyer also warned against creating a precedent whereby anti-corruption agencies would be expected to suspend investigations whenever elections were imminent.
He argued that such a practice could undermine efforts to tackle financial misconduct, particularly where large sums of public money were involved.
“Because we must also be very careful that we don’t give a dangerous impression that when elections are 10 days away, 20 days away, 30 days away, the anti-graft agencies must turn the other eye,” Falana said.
He maintained that investigations into alleged financial irregularities should continue in accordance with the law, irrespective of the proximity of elections, while stressing that any dispute over the legality of an investigative action should be determined through the courts.
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