EFCC: How S/Court verdict on govs’ suit could shape constitutional amendment

The Supreme Court had on October 22 reserved judgement in the suit filed by 18 states challenging the Establishment Act of the EFCC after parties argued the applications.

Two senior Nigerian advocates, Olisa Agbakoba and Femi Falana, in their exchanges on the subject matter, referred to the suit’s relevance to a constitutional amendment in the country.

The contentious aspects of the constitutionality of the establishment of the various anti-corruptions are expected to be addressed in the amendment.

Kogi State had originally filed the suit contending that the Supreme Court had ruled in SC/CV/178/2023 involving Dr Joseph Nwobike Vs Federal Republic of Nigeria, that it was a United Nations Convention against corruption that was reduced into the EFCC Establishment Act and that in enacting this law in 2004, the provision of Section 12 of the 1999 Constitution, as amended, was not followed.

Other states who brought applications to join the suit are Kebbi, Katsina, Sokoto, Jigawa, Enugu, Oyo, Benue, Plateau, Cross River, Ondo, Niger, Edo, Bauchi, Imo, Osun, Nasarawa, Ogun and Taraba states.

Kogi State, through its lawyer Mohammed Abdulwahab (SAN), said the same convention applies to the Nigerian Financial Intelligence Unit (NFIU), the Independent Corrupt Practices Commission (ICPC) and the Proceeds of Crime Agency and asked the apex court to strike down the provisions with heavy costs.

“We are challenging the foundations of these laws that they are conventions that are made to prevent our money from leaving the country and not to be thrown around the country,” he said.

In his reply, the Attorney General of the Federation and Minister of Justice, Lateef Fagbemi (SAN) asked the panel to dismiss the originating process.

He argued that the UN Convention may have inspired the anti-corruption laws but their enactment was in line with Section 15(5) of the Nigerian Constitution, 1999 which enjoin the state to abolish corruption.

He said dismissing the enactment would send a wrong signal about corruption because “the apex court has consistently decided that there is the need to fight corruption.”

Senior lawyers speak on EFCC Act and constitutional amendment

Civil rights activist, Olisa Agbakoba (SAN), had written to the National Assembly informing it that the EFCC is an unlawful organisation and called for constitutional amendment to strengthen all anti-corruption agencies towards the achievement of the government’s objective.

In two separate letters to the Senate and House of Representatives, dated October 14, 2024, 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 organization.”

The letters were addressed separately to the Deputy Senate President, Senator Barau Jibrin; and Deputy Speaker of the House of Representatives, Hon. Benjamin Kalu. The Deputy Speaker doubles as the Chairman, of the House Committee on Constitution Review, while Senator Jibrin is the Chairman, of the Senate Committee on Constitution Review.

Agbakoba noted that he was delighted to note that many states had finally taken it upon themselves to challenge the constitutionality of the EFCC, saying, “This will put to rest the question relating to the validity of the EFCC.”

The letter to the Deputy Senate President, titled, “Urgent Legislative Attention on Constitutional Reforms Relating to Law Enforcement Agencies and Anti-Corruption Efforts” reads: “I write to draw attention to certain constitutional issues on matters related to law enforcement agencies.

“As you are aware, the fundamental objective of the government is to abolish corruption. But from my observation, there is no harmony amongst law enforcement agencies on corruption. They all appear to be working at cross purposes.

“This has been confirmed by the Supreme Court in so many cases. The Supreme Court has consistently sanctioned the EFCC for its conduct and questioned if the EFCC can in fact validly do what it does. I will go further to say that 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 organization.

“I am very delighted to note that many states have finally taken it upon themselves to challenge the constitutionality of the EFCC. This will put to rest the question relating to the validity of the EFCC. Whilst we await the decision of the Supreme Court as the final court on the matter, I respectfully request that the Senate convene a public hearing to consider these constitutional issues.

“Such a hearing would provide an invaluable platform for stakeholders to discuss the reforms needed to strengthen Nigeria’s legal and institutional frameworks for law enforcement and anti-corruption, which will meet the stated and laudable objective of the government to abolish corruption as stated in Section 13 of the Constitution.

“I trust that, under your capable leadership, the Senate Constitution Review Committee will give these matters urgent attention in the interest of our nation’s development.”

However, human rights lawyer, Femi Falana (SAN), has written the Speaker of the House of Representatives, Tajudeen Abbas to use the ongoing constitutional review to include the Economic and Financial Crimes Commission (EFCC) and others in the Nigerian Constitution.

Falana, in a statement on Thursday, said if both the EFCC and the Independent Corrupt Practices and Other Offences Commission (ICPC) in the Constitution are constitutionalised, they will be protected and strengthened to fight the menace of corruption and money laundering.

His letter, which is a reply to that written by Senior Advocate of Nigeria, Olisa Agbakoba, titled, “Re: Urgent Legislative Attention on Constitutional Reforms Relating to Law Enforcement Agencies and Anti-corruption Efforts”, where he contended that the power under which EFCC was established was beyond the powers of the National Assembly, adding that the agency was not established following the constitution.

He said, “Even though he did not refer to any particular case, Dr Agbakoba said that the Supreme Court has knocked the EFCC on many occasions.

“On the contrary, the Supreme Court has consistently supported the efforts of the ICPC and EFCC in fighting the miasma of monumental corruption in the country.

“However, the argument of Dr. Agbakoba is anchored on the premise that the establishment law of the EFCC has violated the basic tenets of federalism.”

Further, Falana contended that the establishment of the anti-corruption agencies is not a breach of the principles of federalism, adding that if the aberration is supported by the provisions of the constitution, “it cannot be rightly argued that an illegality has occurred by the failure of the constitution to adhere to the cardinal principles which are at best ideals to follow or guidance for an ideal situation.”

The state and federal governments have made their submissions, expectations are high that the verdict of the Supreme Court on the governors’ suit on the EFCC would help shape future amendments to the Nigerian constitution.