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How to Help EFCC Succeed By E. Terfa Ula-Lisa, Esq. ulalisa@hotmail.com A Democracy is governed by the Rule of Law. A simplistic definition of the Rule of Law would be that; if we need to make anything happen, we enact a law within the constitution to cure the societal defect.
S.5(1) (e-i) of the EFCC Act lists some of its responsibilities to include:
(e) the adoption of measures to eradicate the commission of economic and financial crimes;
(f) the adoption of measures which includes co-ordinate preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related times; (g) the facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes; (h) the examination -and investigation of al1 reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved; (i) the determination of the extent of financial loss and such other losses by government, private individuals or organisations ; (j) collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning (i) the identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes, (ii) the movement of proceeds or properties derived from the commission of economic and financial and other related crimes, (iii) the exchange ofpersonne1 or other experts, (iv) the establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved, (v) maintaining data, statistics, records and reports on persons, organisations, proceeds, properties, documents or other items or assets involved in economic and financial crimes,
Constitutional Test Case in Benue State
The Vanguard Newspapers reported on August 10, 2006, that the Benue State Government has taken the Federal Government and the other 35 Attorneys Generals of the States to court regarding the legality and scope and applicability of the EFCC Act in regards to the constitution and the Powers of the Federating Units. See http://www.vanguardngr.com/articles/2002/nationalx/nr110082006.html
Benue State is
asking the Supreme Court for the following reliefs:
b) take over and
continue any such criminal proceedings that may have been instituted by
any other authority or person; and
b) take over and
continue any such criminal proceedings that may have been instituted by
any other authority or person; and * A declaration that the National Assembly cannot validly pass any Act to create or establish any other (Police) force/security agency, and that the creation of the EFCC vested with awesome and wide powers akin to and/or broader than those given to the Nigerian Police both by the 1999 constitution and the Police Act Cap P 19, Laws of the Federation, 2004, is unconstitutional, null and void and of no effect whatsoever. * A declaration that the National Assembly has no power to make any law creating a criminal offence with retroactive application and that in so far as the EFCC Act, 2004 vests retroactive powers and functions in the EFCC, the said Act is unconstitutional, null and void and of no effect whatsoever. * A declaration that the EFCC as an agency of the Federal Government has no power, right, duty and jurisdiction to conduct an oversight function on the affairs or management of the Benue State or to arrest, detain or prosecute any official of the state government for any purported offence in relation to the offence of corruption, abuse of power or office. * A declaration that the arrest, detention and harassment of officials of the Benue State government by agents or officers of the EFCC on or about July 28, 2006 or on any day at all for allegations of corruption and abuse of office and/or demand on them to supply details of utilities of Ecological Funds received by the state from May 1999 to date and particulars of all contracts awarded by the state within the same period and payments made on such contracts, etc is ultra vires the power of EFCC and is therefore unconstitutional, illegal and arbitrary. * A declaration that the EFCC Act dealing with, amongst others, confiscation of all property and funds seized from officials of a state government (Benue State) by EFCC to the Federal Government; encroachment on the fundamental human rights provision enshrined in Chapter IV of the 1999 constitution; the retrospective application of the Act on the functions of the commission; the transfer of the oversight functions of the Benue State House of Assembly; the expansion of the jurisdiction of the Federal High Court by vesting it with criminal jurisdiction in respect of affairs of a state government; divesting the Benue State High Court of its inherent powers and jurisdiction and interfering with the way and manner proceedings should be conducted and creating and vesting awesome power in the commission like and/or wider than that of the Nigerian Police are unconstitutional, illegal and void.
* A declaration that
on a proper construction of the provisions of the EFCC Act, 2004 are
inconsistent with the clear provision of the constitution, coupled with
the fact that the said provision run against the spirit, tenor and
intendment of federalism, the entirety of the Act becomes null and void
and of no effect whatsoever. Chief Wole Olanipekun (SAN), counsel to Benue State government, in a 33-paragraph affidavit in support of the suit, averred that “on July 27, 2006, officers and men of EFCC numbering over 50 and heavily armed with sophisticated weapon stormed the office of the Secretary to the Benue State Government and arrested the Commissioner for Finance, a Deputy Director and Director of Administration and Finance in the Ministry of Local Government. “It took the state governor personally going to beg before the state functionaries were released and on July 31, 2006, the EFCC wrote to the State Police Command, asking for the arrest of some key officers of the state, namely Commissioners for Finance, Water Resources and Environment, Works, Education, the Accountant-General and the Chief Executive of Benue State Scholarship Board, Permanent Secretary-Ministry of Water Resources, Director of Administrator, Local Governments and Chieftaincy Affairs, Director of Monitoring and Inspectorate Division of Ministry of Local Governments and Chieftaincy Affairs and Deputy Director in the Accountant General’s office.”
He further averred
that EFCC was also demanding some vital and sensitive government
documents, whether classified or not. The Constitutional Provisions Section: 4. (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives. (2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. (3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States. (4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say:- (a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. (5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.
Item 45 of the Exclusive Legislative List of the Constitution provides that the National Assembly has exclusive powers to make laws regarding: “45. Police and other government security services established by law.”
The EFCC Law
The full title of the law as contained in the Statutes is; “Economic and Financial Crimes Commission (Establishment) Act 2002, Laws of the Federation of Nigeria. The Sub-title reads; ‘An Act to provide for the establishment of a Commission for Economic and Financial Crimes and for matters connected therewith’. It is dated 14th December, 2002 and recited as ‘Enacted by the National Assembly of the Federal Republic of Nigeria’. It was also signed on 13th December, 2002 by one Ibrahim Salim, CON, who certifies that in accordance with Section 2 (1) of the Acts authentication Act, Cap. 4, Laws of the Federation of Nigeria 1990, that this is a true copy of the Bill passed by both houses of the National Assembly.
The former Attorney General of Benue State, Liam T. Ge, Esq. opined that the State under the Separation of Powers Doctrine, like in the Plateau State precedent, has exclusive jurisdiction over state matters and records and documents in its possession. He further espoused the legal position that no Federal Agency has the power of search and seizure over the property of a State without the prior authority of a court of Competent jurisdiction in spite of the EFCC Act. On this point, Rommy Mom, Esq., the current Chairman of the Makurdi Branch of the Nigeria Bar Association is in agreement with the Benue State government, although he had through his Lawyers Alert network been a thorn in the side of the Benue State government on Constitutional issues. Joseph Abaagu, Esq. the current Attorney General of Benue State seeks to test in Constitutional Court, the powers of the EFCC investigators to swoop upon his state and by force of law conduct what he terms “a fishing expedition” and cart away documents belonging to his state.
The Power to Investigate
All the combatant legal luminaries concede to the EFCC the power to investigate inherent in an anti-crime Law Enforcement organization. The Attorney General of Benue’s grouse is that the EFCC did not follow due process. When further asked what due process would be in the current circumstance; he opined that the cops ought to bring forth the allegation and allow the accused persons a right of reply. The next question would be, in the case of an investigation regarding graft, abuse of office or other corruption by individuals, how does Benue State come in? Under the law, even the authority of the Nigeria Police falls under the Exclusive jurisdiction of the Federal Government, hence there are no States Police Organizations. For clarity, EFCC Act expressly makes provision for:
(h) the examination -and investigation of al1 reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved
What is hotly contested is the rational for investigation and the modus operandi. What are the trigger events to an EFCC federal investigation of a State or even Local Government in a separation of powers Republican Democracy where the extent of the powers of the two units of power base are constitutionally provided for in the Exclusive and Concurrent legislative Lists? Can all Economic crimes of Corruption, Fraud and others come under the jurisdiction of the EFCC? Can a Federal Agency have access without subpoena and/or warrant to search and seizure of all and any territory within Nigeria?
Perception of corruption in Benue
Economic and financial Crimes are committed when the state government is looted in graft, cronyism or non performance. Benue has 23 local government authorities. The gross statutory allocation for Benue state in the month of May as contained on the website of the Federal Ministry of Finance http://www.fmf.gov.ng/fileupload/state_FAAC_May2006.pdf is N1,809,393,021.52. The total external debt recorded is N135,088,437.74. Other deductions listed of N28,422,038.05 therein is explained in the footnote to cover National Water Rehabilitation Projects, National Agricultural Technology Support Program, Payment for Fertilizer, State Water Supply Project and National Fadama Project.
Knowledgeable persons have accused tenure of the current government in Benue State of cronyism, cabalistic and non-performing waste. On the government side, I asked the current Attorney-General and commissioner of Justice, Joe Abaagu, Esq., he rated his government as ‘excellent’ in performance. He said they have built many bore-holes and launched some projects without fanfare. When I pressed for numbers he said they merit a 65-75% grade, in his own opinion. I asked The Chairman Makurdi branch of the Nigeria Bar Association, Rommy Mom, Esq., the same question; he gave Benue a failing 35% grade.
The Attorney-General confirmed that his administration has instituted a Benue States Contract Review Commission headed by Justice Joseph Tine Tur to look into the issues the EFCC was purportedly investigating; therefore the EFCC did not have any authority to come into their business.
In Conclusion
Benue State has clearly demonstrated, in my opinion, why Nigeria needs the EFCC as an external Federal agency to investigate cases of graft, cronyism, conversion and outright looting of public resources, wherever found. The Benue State government no doubt has set review mechanisms for contract awards and payment. No doubt, contract sums are rarely, if ever, paid up-front; there is usually a draw-down period based on performance and evaluation of the contract stages. There are also persons employed and given the duty to monitor progress in keeping with best practices and monies released. If the contractors took the money and absconded, they committed crimes; if they performed below expectation, the supervisors should have done their job of assessment and stopped payment. That contract issues would have to be taken to a special commission shows, ipso facto, a lack of accountability. Could it be that the contracts were given to party hacks and the payments shared out in the usual Nigerian practice without regard to performance of the job? Are the contracts a means of doling out patronage to party faithful? That is what the EFCC was set up to find out and stem. They should be allowed free access to do their job. Support the EFCC.
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