Examining The Constitutionality of The Order Obtained By CBN to Freeze Bank Accounts of #EndSARS Protesters – By Honesty Eguridu, Esq.
The disturbing news broke out on Friday 6th November, 2020 that a Federal High Court holden in Abuja granted a request by the Central Bank of Nigeria (CBN) to freeze the accounts of 19 individuals and a public affairs company linked to the #EndSARS protests. The news has it that the application granted by Justice Ahmed Mohammed, was filed by the CBN on October 20.
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The first pertinent question that comes to mind is what is the business of the CBN with the bank account of #EndSARS protesters? And there is a corollary question, do the CBN have the power or jurisdiction to regulate the bank account of individual customers of commercial banks? To what extent can such powers if any be exercised?
Before we delve into the legal intricacies of the issue under discourse, it is important to spare a moment to admonish the Federal Government to draw very vital lessons from the recent #EndSARS protest and its aftermath and backtrack on any action to punish, witch hunt or make scapegoat of any of the supporters or participants of the protest. This is very important because drawing from the benefit of insight and hindsight flowing from recent events the wise thing for the federal government to do is to seek for ways to build bridges and calm frayed nerves in order to engender unity, peace and justice in our dear county.
SOME RECENT ACTION OF THE CBN IN FREEZING BANK CUSTOMERS ACCOUNTS
Recent media reports indicate that the CBN has been very busy issuing freezing orders on account of many commercial bank customers reportedly linked to the #EndSARS protest. On Tuesday 20th October, 2020 the House of Representatives passed a motion directing the Governor of the CBN, Mr Godwin Emefiele to unfreeze five thousand (5000) accounts, allegedly frozen by the apex monetary institution. The lawmakers’ directive was sequel to a “Motion of Urgent National Importance”, sponsored by Rep. Mark Gbillah(Benue-PDP). The lawmaker raised “Concern about the plethora of petitions and “save our soul” (SOS) appeals from Nigerian Citizens across the country in recent times about the untold hardship and poverty they are experiencing from extended freezing of their personal, corporate and other accounts by the Central Bank of Nigeria (CBN).
It is not clear whether the CBN complied with the directive of the House of Representatives to unfreeze the 5000 accounts before it clandestinely proceeded to the Federal High Court sitting in Abuja to obtain an exparte order to freeze accounts of twenty customers for an initial period of 90 days. It is believed that the recent move to seek the court order is intended by the CBN to give legitimacy to its illegality of freezing the bank customers accounts some days earlier. It was reported that one of the victims of the ex parte freezing order, Gatefield Nigeria Limited had earlier sued Access Bank Plc for allegedly blocking an account used to promote media coverage of the #EndSARS protests.
POWERS OF THE CBN TO REGULATE THE BANK ACCOUNT OF COMMERCIAL BANK CUSTOMERS
The CBN is the primary regulator of the banking industry in Nigeria and has the core objectives of ensuring monetary and price stability and promoting a sound financial system in Nigeria. The Bank and Other Financial Institutions Act (BOFIA), 2004 is the principal legislation that sets out the regulatory framework for banking activities in Nigeria. It provides for the regulatory and supervisory powers of the CBN over Nigerian banks, including the issuance and revocation of banking licences, the opening and closing of bank branches and the restructuring and reorganisation of banks, as well as the operation of foreign banks in Nigeria. Under Nigerian law, no entity shall undertake any banking business in Nigeria unless it is duly incorporated in Nigeria and holds a banking licence issued by the CBN.
The sum total of the regulatory powers of the CBN as provided in the Bank and Other Financial Institutions Act (BOFIA) and the CBN Act are mainly targeted towards regulation and supervisions of banks and their operations rather than the individual customers of the bank. Legally speaking, the customer of a commercial bank has no contractual relationship with the CBN and vice versa so the CBN cannot exercise direct control over the account of a commercial bank customer. However, the Bank and Other Financial Institutions Act (BOFIA) provided for a very limited ground upon which the CBN can apply to the Federal High Court to freeze the bank account of a commercial bank customer and that is ground of commission of a crime or reasonable suspicion of commission of a crime with a bank account.
In obvious realization of the limitation of its powers over bank accounts of commercial bank customers the CBN pushed for the amendment of the BOFIA. In July, 2020, reports across major news outlets in Nigeria revealed that the CBNis seeking sweeping powers to freeze bank accounts “linked to criminals” in the country. It expects the powers to be given to it via an amendment of the Bank and Other Financial Institutions Act (BOFIA). In a presentation to the Senate, the CBN’s Director Legal Services, Mr Kofo Salam-Alada, requested that: “The CBN should be able to apply to the court for orders to freeze accounts whichare deemed to be linked with criminal and other civil infractions.”
The media reported that apparently, the bill had passed through First and Second Readings but omitted the provisions they sought to include which necessitated the said presentation .
By the proposed amendment, the CBN needs not wait for anti-corruption bodies like the EFCC to seek court orders to freeze bank accounts that they suspect of being used for fraudulent activities.
On Wednesday July, 22 2020, the Nigerian Senate passed a bill to amend the Banks and Other Financial Institution Act (BOFIA) that was enacted over 29 years ago. The Bill was passed after going through the third reading. It is believed that the Bill is currently passing through legislative processes.
GROUNDS UPON WHICH THE CBN CAN APPLY TO COURT TO FREEZE A BANK ACCOUNT
Section 60B of the Bank and Other Financial Institutions Act (BOFIA), 2004 provides for the powers of the CBN to apply to Court to freeze the account of commercial bank customers. The section is reproduced below for ease of reference:
“60B. Power of Government to freeze accounts
(1) Notwithstanding anything contained in any other enactment, where the Governor has reason to believe that transactions undertaken in any bank account with any licensed bank are such as may involve the commission of any criminal offence under any law, he may make ex parte application for an order of the Federal High Court verifying on oath the reasons for his belief, and on obtaining such Court Order direct or cause direction to be issued to the manager of the bank where the account is situated or believed to be or in the alternative to the head office of such bank directing the bank to freeze forthwith all transactions.
(2) The manager of a bank in which a direction has been issued on an account under subsection (1) of this section shall, on receipt of such direction, suspend all banking transactions whatsoever relative to such account for such period as may be specified in the direction.
(3) Where an account has been frozen pursuant to this section, the Governor shall refer the matter to the Nigeria Police Force, the National Drug Law Enforcement Agency or any other appropriate regulatory authority.
(4) Where it is not possible for the Nigeria Police Force, the National Drug Law Enforcement Agency or any other appropriate regulatory authority to conclude its investigations within the period stipulated in the Court order, the Governor shall apply to the Federal High Court for an order for the continued freezing of the account concerned.
It is clear from the foregoing provisions of BOFIA that the grounds upon which the CBN can apply to the court to freeze an account of a commercial bank customer is if the CBN Governor has reason to believe that transactions undertaken in any such bank account may have involve the commission of a criminal offence under any law. The question here is which crime did the Governor of CBN have reason to believe was committed by the #EndSARS protesters whose accounts were frozen? Is participating in a peaceful protest a crime in Nigeria?
Besides, under BOFIA, the CBN cannot just freeze a bank account and go to sleep, the case must be referred to the police or relevant agency for investigation.
THE CONSTITUTIONAL RIGHTS OF NIGERIANS TO HOLD PEACEFUL PROTEST AND ABUSES BY SUCCESSIVE GOVERNMENTS
Entrenchment of principles that guarantees fundamental rights of all citizens is the bedrock of modern-day democracy all over the world. In Nigeria, there has been struggles by citizens since attainment of independence in 1960 for those in authority to respect the basic rights of citizens. Unfortunately, this struggle seems to have yielded very little result as there exist clear indices to assert that state actors continually have little or no regard for constitutional supremacy and the rule of law and consequently trample on citizens’ rights with impunity.
The rights of Nigerian citizens to hold peaceful protest and rallies is guaranteed under Sections 39 and 40 of the 1999 Constitution and Article 11 of the African Charter on Human and Peoples’ Rights Act (Cap A9) Laws of the Federation of Nigeria, 2004. Similarly, the Courts have interpreted this provisions as extending to the right of citizens to conduct peaceful processions, rallies or demonstrations without seeking and obtaining permission from any individual or agency.
Interestingly, President Muhammadu Buhariand members of his party were victims of human rights violation by state actors when they were playing opposition to the then PDP led government. The court came to their aid and upheld their constitutional rights to hold peaceful assembly without first seeking permission from anyone.
In May 2003, the All Nigeria Peoples’ Party (ANPP) requested the Inspector-General of Police to issue police permits to its members to hold unity rallies throughout the country to protest the alleged rigging of the 2003 elections. The request was refused by the police chief without any reason. The ANPP decided to go ahead and held the first rally in Kano on 22nd of September 2003 which was attended by President Muhammadu Buhari and other leaders of the ANPP. The rally was violently disrupted by the police with the use of teargas on the ground that the organizers had not obtained a police permit.
The ANPP sued the Inspector General of Police for the violation of the rights of its members and the court upheld the rightsof citizens to hold peaceful protest without seeking permission from any authority. The appeal of the Inspector General of Police to the Court of Appeal was dismissed. In affirming the judgment of the lower court, the Court of Appeal held that the right to demonstrate and the right to protest on matters of public concern are rights which are in the public interest and that which individuals must possess, and which they should exercise without impediment as long as no wrongful act is done. See IGP v. ANPP  18 NWLR (Pt. 1066) 457
ADMONISHMENT FOR THE CBN
According to European Central Bank president Christine Lagarde, the primary role of every central bank is to guarantee price stability. Over the years, that role has expanded to also take part in economic and financial planning.
But in Nigeria, the CBN as currently constituted has been accused of stepping outside of its remit while not taking ownership of the core responsibilities at the apex bank. In theory, the CBN is supposed to be an independent body working to stabilize general price levels, but the current CBN has been seen to take orders from the executive while abandoning the core functions for which its was established by law.
The CBN should focus on its core functions of price stability and economic and financial planning. #EndSARS protesters and the use of their bank account to fund the peaceful protest is not the business of the CBN. If there is any illegality associated with the bank accounts there are laws that empower anti-graft agencies to deal with it and not the CBN.
In the same vein, the federal government and those in power today should remember that they were once in opposition and their rights to hold peaceful protest was upheld by the court of law. It is the opinion of this writer that the #EndSARS protest was not targeted against any particular agency of government or individual. It was a movement against failure of institutions of government. The government should take this vital lesson from the aftermath of the hijack of the peaceful protest that there isdeep dissatisfaction with government, there is hunger and there is frustration in the land. This should not be a time to witch hunt and victimize those who promoted the protest but it should be a time to build and assure Nigerians that their voices have been heard and that government is working on their demands. Clamping down on the promoters of the protest may trigger a second wave of the protest which this country cannot afford right now.
BERATING THE COURT FOR GRANTING THE ORDER
The court is a court of justice and there are three sides to legal justice. Justice from the view point of the complainant or claimant, justice from the viewpoint of the defendant and justice from the viewpoint of the court. The court is duty bound to listen to both the complainant/claimant and the defendant and apply the law from the viewpoint of the court.
In the instant case, the Federal Government of Nigeria through the CBN is the complainant, certain facts were presented to the court and the court was told they are carrying out investigation. Although this writer is not privy to the facts presented before the court and the specific request made but from the benefit of insight as a lawyer who knows how this kind of case is done, the lawyer to the CBN may have told the court they require at least 90 days for them to carry out investigation on the accounts as the CBN Governor has reasonable suspicion that the accounts have been used for crime or proceed of crime. And under Section 60B BOFIA, the court has been mandated to grant an order ex parte if certain facts are presented to the court. The section of BOFIA also empowers the court to grant the order for the duration and manner it did.
From the foregoing therefore it is wrong for anyone to berate the court or the judiciary in general for the order freezing the accounts because the court may have acted on the misleading and erroneous information given to it by CBN and its lawyers. The blame should squarely be placed on the doorsteps of the CBN.
REMEDY FOR THE ACCOUNT HOLDERS
The account holders should quickly approach the court to set aside the freezing order. Once the right information is placed before the court, this writer has no iota of doubt that the order will be set aside by the same court that made the order.
The account holders also have the liberty to sue the CBN and demand for monetary compensation for any injury they may have suffered as a result of the oppressive and illegal freezing of their accounts.
The right to peaceful protest is a constitutional right therefore funding of peaceful protest is constitutional and lawful. Freezing of accounts of individual on the ground that the accounts were used to fund the protest is morally and constitutionally wrong. The CBN should retrace its steps quickly and unfreeze the accounts because that is the lawful and right thing to do and to restore public confidence on its activities
Honesty Eguridu is a legal practitioner based in Lagos. He can be reached via email@example.com