• EFCC is illegal, unconstitutionally created – Agbakoba
• No, EFCC is legally established with valid law, says Falana
Two prominent legal luminaries: former President of the Nigerian Bar Association (NBA), Chief Olisa Agbakoba (SAN) and a senior lawyer and human rights activist, Mr Femi Falana (SAN), have expressed divergent views over the legality of the Economic and Financial Crimes Commission (EFCC).
The two legal giants have also written letters to the Senate President, Godswill Akpabio and the Speaker of the House of Representatives, Hon Tajudeen Abbas, canvassing different legal opinions before the National Assembly.
It is instructive to note that while Agbakoba claimed that the EFCC is illegal and unconstitutionally established, Falana insisted that the foremost anti-graft agency is legally created with valid law of the country.
In his letter to the National Assembly, Agbakoba raised constitutional issues relating to law enforcement agencies in Nigeria and factors inhibiting the government’s objective of abolishing corruption, as stated in Section 13 of the 1999 Constitution (as amended).
The former NBA President had in his two separate letters to the Senate and House of Representatives, dated October 14, 2024, said the EFCC was an unlawful organisation and unconstitutionally established.”
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 organisation,”
The letters were addressed separately to the Deputy Senate President, Barau Jibrin; and Deputy Speaker of the House of Representatives, Benjamin Kalu.
The Deputy Speaker doubles as the Chairman, of the House Committee on Constitution Review, while the Senate President is the Chairman, of the Senate Committee on Constitution Review.
Incidentally, Agbakoba’s criticism came amidst the legal action by 16 states of the federation, challenging the propriety of the EFCC before Supreme Court.
The Supreme Court will, on October 22, decide on the suit brought before it by the 16 states, asking the apex court to declare that the EFCC has no right to check the accounts of the state governments
Agbakoba added that he was delighted to note that many states had finally taken it upon themselves to challenge the constitutionality of the EFCC, saying that , “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 in part: “I commend you for the remarkable leadership you have demonstrated as Chairman, Senate Constitution Review Committee, particularly in advancing the government’s reform agenda through a robust constitutional framework.
“Your efforts to strengthen the legal infrastructure underpinning the nation’s development programmes are indeed commendable.
“I write to draw attention to certain constitutional issues on matters related to law enforcement agencies. As you are obviously 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 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 organisation.
“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.
“Thank you for your consideration of this important matter. I look forward to your response.”
But Falana has countered the legal argument of his leaned brother, saying that Agbakoba ought to take judicial notice of the fact that the EFCC is validly created with the enabling law of the land.
The Senior Advocate spoke in his separate letters to Akpabio and Abbas in opposition to the view canvassed by by Agbakoba over the legal status of the EFCC.
In a letter dated 17th October, 2024, Falana said, “Our attention has been drawn to the separate letters addressed to the Senate and House of Representatives, dated October 14, 2024, entitled: “Re: Urgent Legislative Attention on Constitutional Reforms Relating to Law Enforcement Agencies and Anti-corruption Efforts”, (in which) Dr. Olisa Agbakoba contended that the power under which EFCC was established was beyond the powers of the National Assembly.
“Convinced that the Economic and Financial Crimes Commission (EFCC) is “an unlawful organisation” because it was “unconstitutionally established”, Agbakoba stated he was delighted to note that many states had finally taken it upon themselves to challenge the constitutionality of the EFCC.”
Falana also noted that Agbakoba did not cite any case to back up his claim that the Supreme Court has vilified the EFCC with respect to its activities and existence.
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.”
The legal luminary said Agbakoba’s position is premised on the fact that the establishment of EFCC violated the basic tenets of federalism.
Falana then said,, “It is pertinent to recall that in the celebrated case of the Attorney-General of Ondo State v Attorney-General of the Federation & Ors (2022) 27 WRN 1, the Plaintiff (Ondo State Government) had challenged the constitutional validity of the establishment of the Independent Corrupt Practices and Other Offences Commission Act, 2000. The Attorney-General of Ondo State was the Plaintiff while the Attorney-General of the Federation and the Attorneys-General of 35 States were the Defendants.
“In that case, the late Prof Ben Nwabueze and Dr. Agbakoba were the amici curiae while I was privileged to have represented one of the Defendants. It ison record that several Defendants and the amici curiae had argued profusely that the ICPC Act was unconstitutional in every material particular.
“Both amici curiae urged the Court to annul the ICPC Act. Upon a critical analysis of the submissions of all counsel, including the amici curiae, the apex court upheld the constitutional validity of the ICPC Act. In the leading judgment of the Court delivered by Uwais CJN (as he then was) it was held that the National Assembly has the sole power for the establishment and regulation of authorities for the federation or any part thereof so as to promote and enforce the observance of the nation’s responsibility to abolish all corrupt practices and abuse of power which fall under the Fundamental Objectives and Directive Principles of State Policy in section 15(5) of the 1999 CFRN.
“If this is a breach of the principles of federalism, then, I am afraid, it is the Constitution that makes provisions that have facilitated breach of the principles. As far as the aberration is supported by the provisions of the Constitution, I think it cannot rightly be 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 provisions of Section 13 thereof apply to all organs of government and all authorities and persons exercising legislative, executive or judicial powers’.
The provisions do not distinguish between Federal, State or Local Governments.Again the provisions of Section 14 subsection (4) specifically apply to the government or council, and the conduct of the affairsof the government or council or such agencies.” See Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580.
“Even though we cannot comment on the merit of the case of Attorney-pending at the Supreme Court of Nigeria, it is pertinent to refer the members of the National Assembly to the case of Attorney-General of Abia State v Attorney-General of Federation (2024) LPELR-62576 (SC).
“In that case, the Plaintiff had argued that the power of the EFCC to prosecute financial crimes did not extend to the management of the accounts of Abia State Government. The plaintiff then sought “declarations, including a perpetual injunction, to prevent the EFCC from taking any such actions, including the freezing of its bank accounts.
“The defendant (AGF) filed a preliminary objection to the effect that it had been incorrectly sued, because the EFCC was an independent body outside its lawful management and control.
In upholding the preliminary objection of the Defendants, the Supreme Court held that the facts of the case did not disclose any dispute between the plaintiff and the defendants within the meaning of section 232(1) of the Constitution and that there was no complaint against the first defendant (AGF) as representing the Federal Government as all the complaints were against the EFCC.“Consequently,the Supreme Court struck out the case but held that the plaintiff is at liberty to sue the EFCC, but not in the Supreme Court as the EFCC is neither a State nor the Federation. We wish to state without any fear of contradiction, that no State Government has followed the advice of the apex court by filing a suit to challenge the constitutionality of the EFCC Act in a court of competent jurisdiction.
“However, a number of former governors have continued to question the locus standi of the EFCC to arrest, investigate and prosecute them for the criminal diversion of public funds belonging to state governments. For instance, in the case of Nyame vs Federal Republic of Nigeria (2010) 3 SC (Pt.1) 78, the Supreme Court held inter alia: ‘Sections 6(m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act vest in EFCC the function and duty of investigating and prosecuting persons reasonably a person to rush to court to place a clog or shield against criminal investigation and prosecution’.”
Falana further argued that, “In view of the duty imposed on the State by Section 15(5) of the Constitution to ‘abolish all corrupt practices and abuse of power’, the Supreme Court in the case of Shema vs. Federal Republic of Nigeria (2018) 9 NWLR (PT. 1624)337@ 398 held that ‘in the co-operative federalism practiced in Nigeria, the EFCC is a common agency empowered to investigate and prosecute offenders for both the Federal and state economic and financial crimes and as such it qualifies as ‘any other authority or person’ empowered by section 211 (1) (b) of the Constitution to institute or initiate criminal proceedings. EFCC is the coordinating agency for the enforcement of the provisions of any other law or regulation on economic and financial crimes, including the Criminal Code and Penal Code. The Commission has powers under section 13 (2) of the EFCC Act to prosecute offences so long as they are financial crimes’.”
Falana also faulted the action of some state governments for seeking to frustrate the anti-graft initiatives of the Federal Government instead of supporting the agencies to thrive.
He said, “ Instead of ensuring that the EFCC, ICPC and Code of Conduct Bureau serve as ‘common agencies’ of the people of Nigeria in combating the miasma of monumental corruption in the country, some state governments have a penchant for terminating grave economic and financial crimes by filing nolle prosequi applications.
“Others usually rush to either State High Court or Federal High Court to procure frivolous court injunctions to frustrate the prosecution of serving public officers and thereby making a mockery of public accountability and transparency in government,”
Falana therefore urged the National Assembly to seize the opportunity provided by the ongoing Constitution Amendment to end the questions about the legality of EFCC and Independent Corrupt Practices and Other Offences Commission (ICPC) by entrenching both in the Constitution.
He said, “In the light of the foregoing, we urge the members of the National Assembly to take advantage of the ongoing constitutional review to end the diversionary debate about the validity of the EFCC Act and ICPC Act by entrenching both Economic and Financial Crimes Commission and the Independent Corrupt Practices and Other Offences Commission in the Constitution.
“In other words, if both commissions are constitutionalised, they will be protected and strengthened to fight the menace of corruption and money laundering,” Falana added.
