THERE are so many matters arising from the nation’s capital including the much trumpeted ‘cabinet shake-up’ that would have turned out to be a sad denouement but for the removal of the Education Minister, Professor Tahir Mamman and nomination of Minister-designate for the new Ministry of Livestock Development, Alhaji Idi Mukhtar, a successful dairy farmer and former chief executive of Kaduna Refinery from Adamawa State.
And so I would like to join in deconstructing what I have considered a conundrum: I mean we need to debate the involvement of a senior and respected citizen and senior Advocate of Nigeria, Olisa Agbakoba who has curiously joined the bandwagon of our wonderful governors who have asked the Supreme Court to scrap the Economic and Financial Crimes Commission (EFCC). I consider that a weightier matter of the law. I am propelled by the way the ‘public enemy Number One corruption has ruined Nigeria.
The Origin Of Curiosity…
First, The Economic and Financial Crimes Commission (EFCC) raised an alarm when its operatives said they had arrested a man identified as Kayode Cole, for reportedly issuing a death threat against Ola Olukoyede, chairman of the anti-graft agency. Cole was said to have been arrested in the Lugbe area of Abuja after making the threat via his Instagram handle, “1billionsecrets,” in response to an Instablog9ja post on February 1, 2024.
The this early warning signal story was recently followed by a development that could not be ignored when sixteen state governments consolidated a suit before the Supreme Court challenging the law establishing the Economic and Financial Crimes Commission (EFCC). The sixteen states filed the suits challenging the powers of the EFCC, the Nigerian Financial Intelligence Unit and any other similar agency of the Federal Government. The plaintiffs in the consolidated case, marked: SC/CV/178/2023, are Anambra, Benue, Cross River, Enugu, Edo, Kogi and Kebbi. Others are Katsina, Jigawa, Nassarawa, Niger, Ondo, Oyo, Ogun, Plateau and Sokoto.
The plaintiffs aver that the setting up of the EFCC, through the EFCC (Establishment) Act 2004, was not in conformity with the provisions of Section 12 of the 1999 Constitution (as amended). Section 12 of the Constitution captioned ‘Implementation of treaties’ reads: “(1) No treaty between the federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly. (2) The National Assembly may take laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty. (3) A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation.”
The plaintiffs contended that it was a United Nations Convention against corruption that was reduced into the EFCC Establishment Act, hence the constitutional provision regarding treaties and making it a Nigerian law was not complied with in establishing the EFCC.
The plaintiffs also contended that as contained in Section 12(3) of the constitution, the majority of the state Houses of Assembly must first agree that the convention be adopted before the EFCC Act could be validly enacted. According to them, the EFCC Act, as currently enacted, could not be applied to states that never approved of it.
The plaintiffs want the court to declare that any institution, so established, such as the EFCC, should be regarded as an illegal body. Some of the reliefs being sought in the suit are: “A declaration that the Federal Government through the Nigerian Financial Intelligence Unit (NFIU) or any other agency lacks the power to issue any directive, guideline, advisory or any instrument howsoever called for the administration and management of funds belonging to a state. A declaration that the EFCC, the NFIU or any agency of the Federal Government cannot investigate, requisition documents, invite and or arrest anyone with respect to offences arising from or touching on the administration and management of funds belonging to a state or any local government area.”
The EFCC was established by an Act of the National Assembly on December 12, 2002 by the administration of President Olusegun Obasanjo. Following the appointment and confirmation by the Senate of the pioneer chairman, Mallam Nuhu Ribadu, and other administrative officers, the operational activities of the commission commenced on April 13, 2003. The establishment of the Commission was partly in response to pressure from the Financial Action Task Force on Money Laundering, also known by its French name, Grouped’actionfinancière. GAFI is an intergovernmental organisation founded in 1989 on the initiative of the G7 (Group of Seven), an inter-governmental political forum consisting of Canada, France, Germany, Italy, Japan, the United Kingdom and the United States of America to develop policies to combat money laundering. FATF had before then ranked Nigeria as one of the 23 countries that were non-cooperative in the combined efforts to fight money laundering globally. And so because of identified inadequacies in the 2002 Establishment Act, the National Assembly repealed it and re-enacted the 2004 Establishment Bill, which was signed into law on June 4, 2004 by the then President Obasanjo.
Ribadu was handed the task of midwifing the agency. Section 2 (c) of the Establishment Act describes the commission as “the designated Financial Intelligence Unit (FIU) in Nigeria, which is charged with the responsibility of co-ordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.”
Some of the responsibilities of the Commission, as enshrined in section 6 of the EFCC Establishment Act are: “(b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.; (c) the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority; (d) the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crimes related offences or the properties the value of which corresponds to such proceeds.” Section 7 details the special powers of the Commission. It states: The Commission has power to- (a) cause investigations to be conducted as to whether any person, corporate body or organization has committed any offence under this Act or other law relating to economic and financial crimes. (b) cause investigations to be conducted into the properties of any person if it appears to the commission that the person’s lifestyle and extent of the properties are not justified by his source of income.”
Being the coordinating body for all institutions dealing with economic and financial crimes in Nigeria, section 7 (2) of the Establishment Act states, “The Commission is charged with the responsibility of enforcing the provisions of – (a) the Money Laundering Act 2004; 2003 No.7 1995 N0. 13; (b) the Advance Fee Fraud and Other Fraud Related Offences Act 1995; (c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended; (d) The Banks and other Financial Institutions Act 1991, as amended; (e) Miscellaneous Offences Act; (f) Any other law or regulations relating to economic and financial crimes, including the Criminal code of penal code.”
Undoubtedly, from the outset the Commission forced itself into the reckoning of Nigerians when it began arresting individuals who were suspected of corrupt practices. From Ribadu to Farida Waziri, Ibrahim Lamorde, Ibrahim Magu, Mohammed Abba, Abdulkarim Chukkol, Abdulrasheed Bawa and to the present substantive chairman, Olanipekun Olukoyede, the EFCC has prosecuted high-profile cases involving serving and former public office holders among others.
However, despite the successes that the anti-graft agency may have recorded, it has been also been criticised for abuses of fundamental rights of citizens in the course of its duty. In the same vein, some civil society activists have also censored the anti-graft body for selective prosecution and alleged media trials. The EFCC has also been lampooned for allegedly focusing more on small fries like young fraudsters popularly known as ‘Yahoo Boys’ and abusers of the Naira, while failing to diligently pursue and prosecute suspects with dubious credentials.
Prior to this consolidated case, several state governments had gone to court to challenge the EFCC’s powers to probe their state finances, arguing that they had their House of Assembly, Accountant-General and Auditor-General to do that within the context of practice of federalism. Some have also gone ahead to set up their states anti-corruption agencies to tackle corruption in their states. Interestingly, some of the state governments that challenged the EFCC and lost their cases were joined in the current case initially instituted by the Kogi State Government, which had claimed transparency after the EFCC invited its officials to answer criminal allegations related to the alleged withdrawal of N46bn from the state’s bank accounts.
In May 2023, a Federal High Court sitting in Awka, Anambra State dismissed a suit filed by the Anambra State Government challenging the EFCC’s power to investigate its finances, describing it as factually and forensically lacking in merit. The state government had approached the court presided over by Justice Nnamdi Dimgba to determine whether under the federal system of government with the constitutional doctrine of separation of powers, “the appropriation, disbursement and or administration of funds belonging to a State Government is subject to investigation by the EFCC being an agency of the Federal Government.”
But now, how do we place the interest of a former President of the Nigerian Bar Association, Dr Olisa Agbakoba, (SAN) who has written to the National Assembly on the status of the same EFCC even as he praised the suit of the sixteen governors.
In two separate letters to the Senate and House of Representatives, dated October 14, 2024, Agbakoba said the EFCC was an unlawful organisation that he believed was “unconstitutionally established.”
He said, “I very strongly believe the EFCC is unconstitutionally established. The powers under which it was established go beyond the powers of the National Assembly. The EFCC is an unlawful organisation,” Agbakoba said.
The Supreme Court had on October 22 deferred ruling on the suit brought before it by the16 states, seeking to declare that EFCC has no right to check the accounts of the state government.
Although Femi Falana, SAN had written to challenge the position of Agankoba, should the nation back the nullification of the EFCC law instead or seek reform of its operations to serve common good? Are the governors seeking the abrogation of the EFCC law doing that because of public or personal interest? As we await the ruling of the Supreme Court, the answers to these questions should not blow in the wind of legal technicality, again!
- Oloja is former editor of The Guardian newspaper and his column, Inside Stuff, runs on the back page of the newspaper on Sundays. The column appears on News Point Nigeria newspaper on Mondays.