Sixteen state governments have a consolidated suit before the Supreme Court challenging the law establishing the Economic and Financial Crimes Commission. Ahead of the hearing of the suit October 22, WALE AKINSELURE writes on prayers of the case, the history of the EFCC and the overtime battles of the commission with the powers-that-be
Just like in the case concerning financial autonomy for local government areas, all eyes would again be on the Supreme Court as, October 22, it hears a suit challenging the constitutionality of the law establishing the Economic and Financial Crimes Commission. While, in the case of financial autonomy, the State Governments were defendants in the suit filed by the Attorney General of the Federation, Lateef Fagbemi (SAN), this time, the state governments are the plaintiffs against the EFCC establishment law.
Sixteen states filed consolidated 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 question 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 ranked Nigeria as one of the 23 countries that were non-cooperative in the combined efforts to fight money laundering globally. Due to identified inadequacies in the 2002 Establishment Act, the National Assembly repealed it and re-enacted the 2004 Establishment Act was signed into law on June 4, 2004 by then President Obasanjo.
Ribadu was handed the task to midwife 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.”
At its inception, the commission forced itself into the consciousness of Nigerians arresting fraudulent individuals. 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. But amid the successes that the anti-graft agency may lay claim to, the it has been criticised for abuses of fundamental rights of Nigerians in the course of their duty; selective prosecution; 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 highly-placed individuals with questionable lifestyles.
For some observers, the move by the states is commendable as it affords the opportunity to test the nation’s laws. All eyes will be on the Justice Uwani Abba-Aji-led Supreme Court panel from October 22 to give clarification on if the functions of the EFCC are within or outside the exclusive list.
Prior to this consolidated case, several state governments had singly 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. 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.
The Kogi government 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.”
In his judgment, Justice Dimgba stated that the EFCC had constitutional powers to investigate any act of economic and financial crime in any part of the country, stressing that neither the authorities of a state’s House of Assembly nor Auditor-General of a state precluded the commission from performing its mandate as contained in the Constitution.
In Sokoto, a Federal High Court affirmed that both the Independent Corrupt Practices and Other Related Offences Commission and the EFCC were legally mandated to investigate and prosecute any person or authority over allegations of corruption anywhere in Nigeria. Justice S. K. Idris, who gave the ruling in a suit filed by the Sokoto State Government seeking to restrict ICPC and EFCC from inviting, investigating, arresting or prosecuting any official of the state government on allegations of corruption, dismissed the claim, noting that the two anti-corruption agencies had been so empowered by an Act of Parliament to perform the duties of fighting corruption in all the 36 states of the federation.
The Rivers State Government had also in the past, challenged the directive of the Attorney-General of the Federation to the EFCC to investigate the state over withdrawal of funds. The then Nyesom Wike-led government had held on to two judgments of the High Court of Rivers State and the Federal High Court barring the anti-graft agency from investigating the finances of the state. In 2022, the Oyo State Government instituted a case noting that the EFCC had since August 2021 been constantly requesting for financial documents that could be interpreted as auditing and investigating the expenditure of funds such that it denuded powers of the state governor as contained in section 176 of the constitution as Chief Security Officer of the state.
The state government had in the suit FHC/IB/23/22 pointed to a clash between provision of the 1999 constitution (as amended) and the EFCC Act of 2004, going by the EFCC questioning how the state government expended and disbursed its security vote, other contingency fund and the consolidated revenue fund. Though it noted that section 6 of the EFCC Act 2004 provided for powers of the EFCC to investigate economic and financial crimes, the Oyo State government, in the suit, held on to the constitutional provision that it was duty of the legislature to conduct investigation into disbursement and expenditure of the funds. Also questioning the powers of the EFCC, the state government had argued that section 125 of the 1999 constitution established Auditor General of the state and imbued it with powers to audit public funds.
In the same vein, the Benue State Government, in 2018, challenged the powers of the EFCC to investigate its finances. But the court, in a judgement delivered by Justice Nnamdi Dimgba, held that EFCC had the legal competence to investigate any allegation or reasonable suspicion of financial impropriety involving officials of any state government. Justice Dimgba held that powers the law conferred on EFCC under sections 6, 7 and 38 of the EFCC Act were very broad and not confined or limited to geographical or territorial boundaries. He said the anti-graft agency was not foreclosed by section 125 of the 1999 Constitution, as amended, from demanding the release of specific officials of the Benue State government to assist its investigations. The court also held that the suit was predicated on the “fallacy and misconception” that only a resolution by the Benue State Assembly could empower the EFCC to look into financial activities of the state. It further dismissed contention of the plaintiff that only the Auditor-General of Benue State had the sole responsibility of scrutinizing financial books of the state.
The EFCC has also quizzed government officials in Edo with government challenging the jurisdiction of the court to hear the EFCC case. In Kebbi, the EFCC in 2020 launched investigation into abandonment of projects by contractors. Former Governor Sule Lamido of Jigawa State faced money laundering charges to the tune of N1.35bn while the commission also quizzed a former Governor of Niger State, Babangida Aliyu, for alleged diversion of N1.7bn state funds. A former Governor of Plateau State, Jonah Jang, also faced trial for alleged criminal breach of trust and misappropriation of state funds to the tune of N6.3bn. There is also the EFCC case against the former Speaker of the Ondo State House of Assembly, Oleyelogun David, and two others.
There have been arguments on the side of morality of the governors’ action as they hold that the case was that of corruption fighting corruption.
A lawyer, Olutubosun Osifowora, held that while there may be legal arguments on the case, there was the moral aspect of what message was being sent to the Nigerian populace and the international community regarding the fight against corruption.
Toeing this line, Jide Bamgbose of the Justice, Peace and Development Commission stated, “This is a corruption fight-back by those corrupt politicians, who one way or the other, want to cover up their tracks. And I am not so surprised that Kogi State is at the forefront, because of the ongoing case against it. This is a deliberate effort to frustrate the case. We should expect more of this. I pray the judiciary will not compromise at the end of the day.”
A Senior Advocate of Nigeria, Robert Clarke, argued that governors could not challenge the Federal Government for implementing an existing law.
The elder statesman said, “They have the legal right as governors to bring before the Supreme Court an action that challenges a law that is repugnant to the constitution.
“If you look at the antecedents of the operations of these laws, many of the very notorious (cases) – I will not use the word notorious derogatorily – have been involving sitting governors, governors that are out of office, and therefore, they have every right to be jittery, that this matter is mainly created for the governors’ bubbles but I do not see to that point.
“If there is anything in that law that runs against the constitution, they should let us know. But if there is no law today that says the Federal Government cannot pass a law relating to criminal acts of governors during their period of executive work, then I doubt whether they are treading the correct grounds.
“They cannot challenge the Federal Government for implementing an existing law. They cannot challenge the police or any other agency of government that is executing an existing law. This law they are trying to challenge is a law that was created at the start of our laws as of today.”
However, legal luminary, Dr Olisa Agbakoba, SAN, praised the move by the governors as a good one, saying it would enable Nigerians know the scope of powers of the EFCC.
“They (EFCC) do everything, and the Supreme Court has warned them, in many cases, that you cannot do everything. So, it is a good thing for the governors to go and request the Supreme Court to interpret just like the AGF went to the Supreme Court on Local Government Autonomy. Let us see what the Supreme Court makes of it,” Agbakoba stated.
“I have always felt that the EFCC was an unconstitutional body. This case that the governors have brought reawakens my interest to challenge exactly what the purpose of the EFCC is. This is a country struggling to survive in terms of lack of cash. Many governors are insolvent. But if you go to Abuja, you will see stupendous corruption; I don’t see what the EFCC is doing. If I have the powers of the EFCC to bring in all those guys who have stolen money and converted it to real estate, we will be looking at about a thousand trillion naira. Why is the EFCC not fulfilling the mandate for which it was established?”
On his part, a former Chairman and Managing Director, Daily Times of Nigeria, Chief Tola Adeniyi, wants the agency scrapped, claiming that former President Obasanjo created the EFCC as a witch-hunt tool to cage the opposition.
He said, “Everything the EFCC is meant to do is already in the extant laws of the land and are included in the duties of the police. Technically, it’s the state House of Assembly that’s empowered by law to probe the affairs of its executive, including the Chief Executive, that’s the governor. There’s no comparable institution in the US which can probe the affairs of any state. Obasanjo unabashedly used the EFCC to taunt, harass, embarrass and even imprison anyone who didn’t dance to his tune.”
Secretary, Nigerian Bar Association, Birnin Kebbi branch, Aminu Umar-Kalgo, noted that all eyes were on the Supreme Court to interpret whether the functions of the EFCC were within or outside the Exclusive Legislative List, though he noted that members of the public were particularly curious about the motive behind the filing of the case.
