The present fight by 16 states in 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 Kogi State Attorney General 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, 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.
“(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Executive 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.”
For instance, the Supreme Court found as a fact in the case of Nwobike V. Federal Republic of Nigeria that the EFCC Act is a product of the United Nations Convention against corruption. But the position of the Plaintiffs in the suit is that the EFCC Act arising from the UN Convention, being an item not contained in the exclusive legislative list, a recourse should have been made to States as stakeholders in the Federation in line with Section 12 of the 1999 Constitution.
The 1999 Constitution is very clear on the areas the National Assembly has exclusive preserve to make laws, the areas the States have and the areas both the National and State assemblies share legislative powers. The Acts in dispute, being rooted in UN Convention and Protocol, does not fall into any of those categories, as a result of which compliance with Section 12 of the 1999 Constitution was a mandatory requirement. Failure to comply with Section 12 of the Constitution before the enactment of the acts was fatal.
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, he is saying that compliance with Section 12 of the 1999 Constitution was not necessary for the validity of the Acts.
This is a strange argument. By this, the defendants also curiously implied that the findings of the Supreme Court in Nwobike V. Federal Republic of Nigeria that the UN Convention gave birth to the Acts was not correct and therefore not relevant.
Since its creation, aside from the early stages in power of Nuhu Ribadu, who was the pioneer Chairman of the body, the EFCC has been known as a tool for political oppression. No thanks to its mode of establishment. And it is the reason corruption has festered rather than abated.
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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.
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 attacking 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.
Even those who have established corruption cases against them are holding big appointments in the current administration, like it has happened in the past, and the EFCC is looking away. And these are people who don’t have immunity. There are individuals that their governments are even trying to prosecute but the FG is shielding them through the EFCC mainly.
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.
It is feared that owing to the constitutional significance of the ongoing suit at the Supreme Court, which could ultimately see the exit of the affected agencies, their laws, having not been rooted in the 1999 Constitution, agents of the Federal Government could be making frantic moves to interfere and put pressure on the Supreme Court not to do the right thing as far as this suit is concerned. 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, Honourable Justice Kudirat Motonmori Olatokunbo Kekere-Ekun, when she said: “Under my leadership, the judiciary would adhere to the principles of honesty, transparency and integrity and that independence of the judiciary is always a topical issue…… at the Supreme Court. For instance, our judgments are free from external influence. 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. This is a new dawn and a new era in the Nigerian judiciary. I wish to assure my fellow Nigerian citizens that we are committed to working more diligently to improve public perception of the Nigerian judiciary. Over the years, various factors have contributed to the negative image of the judiciary. However, we are determined to change this narrative and make the judiciary a source of pride for all Nigerians. When the legal compass of a nation falters, everything suffers, including public and international perception.”
The intense lobbying over the last weekend for states to withdraw from the suit shows the kind of pressure that could be on the Supreme Court judges. It is difficult not to believe that the Benue State Governor, Rev. Father Hyacinth Alia, suspended his Attorney General and Commissioner for Justice, Bemsen Mnyim, as a result of lobbying that has been going on. 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 FG to withdraw from the case.
That shows that the Federal Government is jittery because the laws that established EFCC, ICPC, and others are not domesticated. The law is against the spirit of the 1999 Constitution. If Nigerian 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.
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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