The present fight by 16 states challenging the legality of the Economic and Financial Crime Commission and other anti-graft bodies may be an opportunity for the Federal Government to retool and fortify the legal framework needed to prosecute its war against corruption, which has become so endemic in all public spaces in the country. The Attorney General and Commissioner of Justice of Kogi State had in the suit, number: SC/CV/178/2023, sued the Attorney-General of the Federation as sole defendant. In the originating summons filed by a team of lawyers led by Prof. Musa Yakubu (SAN), the state raised six questions for determination and sought nine reliefs.
The Kogi State Government sought a declaration that the Federal Government through the Nigerian Financial Intelligence Unit lacked the power to issue any directive, guideline, advisory or any instrument however called for the administration and management of funds belonging to the state. The government also sought a declaration that the EFCC, the NFIU or any agency of the Federal Government cannot investigate, requisition documents, invite and or arrest anyone concerning offences arising from or touching on the administration and management of funds belonging to the state.
The contention of the Plaintiffs in the suit is that the Federal Government cannot under any guise control funds appropriated by their Houses of Assembly. The Plaintiffs are also contesting the constitutionality of the EFCC Act in the light of the decision of the Supreme Court in the case of Nwobike V. Federal Republic of Nigeria that the EFCC Act was based on a United Nations Convention against corruption, the same having not been ratified in line with Section 12 of the 1999 Constitution (as amended).
The Plaintiffs are therefore asking the Supreme Court to nullify the EFCC, NFIU, Independent Corrupt Practices and Other Related Offences Commission and Proceeds of Crime Acts, all rooted in a United Nations Convention and Protocol, having not been ratified by the Houses of Assembly of the Plaintiffs in line with Section 12 of the 1999 Constitution.
Section 12 (1) of the Constitution says: “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.”
The Defendant to the suit, the Attorney General of the Federation, on the other hand did not deny that the Acts were rooted in the United Nations Convention, but that the concurrence of States of the Federation as stakeholders was not necessary for the validity of the Acts.
By this, the AGF is saying that compliance with Section 12 of the 1999 Constitution was not necessary for the validity of the Acts.
But the argument of the AGF is rather strange. If he agreed that the law creating these bodies are a product of a UN convention, which were not properly domesticated the way they should be, then why is he explicitly saying that such improperly domesticated products should have control over state funds, in fact apply bullying while doing so?
Since its creation, aside from the early stages in power of Nuhu Ribadu, who was the pioneer Chairman of the body, the EFCC has actually been used as a tool for political oppression by the Federal Government against perceived dissenting state authorities. Any wonder then that the agency has not really achieved much in eradicating corruption that has remained endemic in the system. No thanks to its mode of establishment. And it is the reason corruption has festered rather than abated.
Before the first tenure of the former Ekiti State Governor, Ayo Fayose, came to an end, the politician was already considered as a “candidate for hell” going by the hounding charges stacked against him by the anti-graft agency. Probably hemmed in by the agency, the former governor did not wait for the operatives before he made a dramatic appearance at the headquarters of the agency in Abuja, fully kitted and prepared for any eventuality.
That was 2006. Till date, the case is still in court. In fact, despite the never ending trial, the man made a comeback to rule the state for the second time between 2014 and 2018. Nothing has happened to him.
It is the same story with the former Governor of Abia State, Senator Uzor Kalu. At a point, he was plucked from the Senate, where he was the Chief Whip, and clamped in jail, but he did not only regain his freedom, he has today returned to the Senate and has remained a very influential member of the upper chamber.
If Nigeria indeed wants to fight corruption, it must be done legally and constitutionally. Kano State Government’s petition against a former Governor, who is now the National Chairman of the All Progressives Congress, Abdullahi Ganduje, has not been looked at by the EFCC. The state has made several efforts to put the former chief executive in the dock, but the current chairman of the ruling party has been walking freely all over the place, even in Kano, protected by security operatives. That’s a double standard.
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On the whole, the anti-graft body has not been able to prosecute any significant number of allegedly corrupt individuals. In fact, the agency has achieved so much in media trials rather than in the law court. It has over the years been perceived as an attack dog of the government in power, used to hound perceived enemies of the state. No wonder that any politically exposed individual finds it expediently convenient to get enlisted as a “friend of the government” in order to take the EFCC off their back.
Until the laws establishing the agencies are reviewed holistically, Nigerians cannot have real anti-graft agencies, but tools in the hands of successive Federal Government administrations to deal with opposition and subdue potential threats.
Although the Supreme Court has reserved judgement in the case, it is feared that the apex court might be put under immense pressure not to do the right thing as far as this suit is concerned. No one can deny the intense lobbying going on with the way some states have been withdrawing from the suit
The Benue State Governor, Rev. Father Hyacinth Alia, did not only force his state to withdraw from the suit, in addition, he suspended his Attorney General and Commissioner for Justice, Bemsen Mnyim. Governor Alia’s argument is that the suspended Commissioner did not clarify with him before joining the fray. But it is obvious that the state executive may be under pressure by the Federal Government to withdraw from the case.
However, Nigerians are optimistic that the apex court would rise to the occasion as it did on many occasions in the past. This hope is strengthened by the inaugural speech of the new head of the judiciary and Chief Justice of the Federation, Justice Kudirat Kekere-Ekun, when she said that the judiciary under her watch would adhere to the principles of honesty, transparency and integrity.
Kekere-Ekun declared that while it is essential for the judiciary, as the third arm of government, to maintain good working relationships with the executive and legislative branches, this should not be misconstrued as subservience. According to her, this is a new dawn and a new era in the Nigerian judiciary.
Looking at all the angles, the Supreme Court might find it difficult to save the anti-graft bodies because as it is said in the legal parlance: You can’t put something on nothing. So it is better that the Nigerian Government does a proper retooling if it hopes to fight and win the fight against corruption.
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