From Godwin Tsa, Abuja
The Supreme Court is in the spotlight as it prepares to deliver Judgment in the consolidated suit by 15 state governments challenging the constitutionality of the laws establishing the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practice and other Related Offences Commission (ICPC) and the Nigerian Financial Intelligence Unit (NIFU).
The states in the consolidated suit suit marked: SC/CV/178/2023 are Kogi, Ondo, Edo, Oyo, Ogun, Nassarawa, Kebbi, Katsina, Sokoto, Jigawa, Enugu, Plateau, Cross-River, Niger and Bauchi.
Although a total of 18 states had joined the suit that was originally filed by Kogi State to challenge the establishment of the anti-graft agencies, four states of Anambra, Adamawa, Ebonyi and recently Benue, have all withdrawn from the legal battle.
A seven-member panel of the Supreme Court led by Justice Uwani Abba-Aji had on the last hearing, announced that a date for the judgment would be communicated to parties to the suit.
The administration of former President Olusegun Obasanjo established the Economic and Financial Crimes Commission (EFCC) by an Act of the National Assembly on December 12, 2002.
It’s operational activities commenced on April 13, 2003, following the appointment and confirmation by the Senate of the pioneer chairman, Mallam Nuhu Ribadu, and other administrative officers.
The establishment of the Commission was partly in response to pressure from the Financial Action Task Force on Money Laundering, also known by its French name, Grouped’actionfinancière.
GAFI is an intergovernmental organisation founded in 1989 on the initiative of the G7 (Group of Seven), an inter-governmental political forum consisting of Canada, France, Germany, Italy, Japan, the United Kingdom and the United States of America to develop policies to combat money laundering.
FATF had ranked Nigeria as one of the 23 countries that were non-cooperative in the combined efforts to fight money laundering globally. Due to identified inadequacies in the 2002 Establishment Act, the National Assembly repealed it and re-enacted the 2004 Establishment Act that was signed into law on June 4, 2004 by then President Obasanjo.
Section 2 (c) of the Establishment Act describes the commission as “the designated Financial Intelligence Unit (FIU) in Nigeria, which is charged with the responsibility of co-ordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.” Being the coordinating body for all institutions dealing with economic and financial crimes in Nigeria, section 7 (2) of the Establishment Act states, “The Commission is charged with the responsibility of enforcing the provisions of – (a) the Money Laundering Act 2004; 2003 No.7 1995 N0. 13; (b) the Advance Fee Fraud and Other Fraud Related Offences Act 1995; (c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended; (d) The Banks and other Financial Institutions Act 1991, as amended; (e) Miscellaneous Offences Act; (f) Any other law or regulations relating to economic and financial crimes, including the Criminal code of penal code.”
Since it’s inception, several state governments had in the past, unsuccessfully challenged the EFCC’s powers to probe their state finances, arguing that they had their House of Assembly, Accountant-General and Auditor-General.
They include Anambra, Sokoto, Rivers, Oyo and Benue states. Some have also gone ahead to set up their states anti-corruption agencies to tackle corruption in their states. It is interesting to note that some of the state governments that had unsuccessfully challenged the legality of EFCC in court, have now joined as co-plaintiffs in the present suit. The plaintiffs argued that the Supreme Court, in Dr Joseph Nwobike Vs Federal Republic of Nigeria, had held that it was a UN 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.
They question that the setting up of the EFCC, through the EFCC (Establishment) Act 2004, was not in conformity with the provisions of Section 12 of the 1999 Constitution (as amended). Section 12 of the Constitution captioned ‘Implementation of treaties’ reads: “(1) 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 take laws for the Federation or any part thereof with respect to matters not included in the Exclusive 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.”
The plaintiffs contended that it was a United Nations Convention against corruption that was reduced into the EFCC Establishment Act, hence the constitutional provision regarding treaties and making it a Nigerian law was not complied with in establishing the EFCC.
The plaintiffs also contended that as contained in Section 12(3) of the constitution, the majority of the state Houses of Assembly must first agree that the convention be adopted before the EFCC Act could be validly enacted. According to them, the EFCC Act, as currently enacted, could not be applied to states that never approved of it.
The plaintiffs want the court to declare that any institution, so established, such as the EFCC, should be regarded as an illegal body. Some of the reliefs being sought in the suit are: “A declaration that the Federal Government through the Nigerian Financial Intelligence Unit (NFIU) or any other agency lacks the power to issue any directive, guideline, advisory or any instrument howsoever called for the administration and management of funds belonging to a state. A declaration that the EFCC, the NFIU or any agency of the Federal Government cannot investigate, requisition documents, invite and or arrest anyone with respect to offences arising from or touching on the administration and management of funds belonging to a state or any local government area.”
The Supreme Court has rightly 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. However, the case of the Plaintiffs in the present suit is that the EFCC Act arising from the UN Convention, being an item not contained in the exclusive legislative list, recourse should have been had 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 do not fall on 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.
Quote: “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”
Check this story for Part 2
EFCC Act: Anxiety as Govs, EFCC, others await Supreme Court Judgment (2)
