Between the states and EFCC & Ors., By Reuben Abati 

Supreme Court of Nigeria

We should therefore not throw the baby away with the bath water. Nigeria needs the anti-graft agencies now more than the country did in 2003. Indeed, in February 2023, the FATF added Nigeria again to the list of countries that have been grey-listed. The country is required to implement an action plan comprising 19 items before May 2025 to avoid the certain prospect of moving from “the Grey List” to the “Black List.” This certainly is not the best of times for Nigeria to start talking about nullifying its anti-graft agencies. Perhaps, the better option lies in the middle ground between Agbakoba and Falana.

Today, 22 October, is the day that has been set aside by the Supreme Court of Nigeria for the hearing and the consolidation of the suit brought before the Court in the matter between 16 states of the federation and the Attorney General of the Federation to determine the legality or otherwise, to wit the constitutionality or otherwise also, of the Economic and Financial Crimes Commission (EFCC), the Nigerian Financial Intelligence Unit (NFIU), the Independent Corrupt Practices and Other Related Offences Commission (ICPC) and the Proceeds of Crimes Act. The suit originally filed by the AG Kogi State – SC/CV/178/2023 – has now been joined by 15 other states. Out of these, 13 are expressly questioning the legality of the EFCC and similar anti-graft agencies, and they are asking the Supreme Court to nullify all such commissions created outside the province of constitutional provisions. Two states – Ogun and Cross River – are challenging the assumed powers of the NFIU to dictate how much states can withdraw or control with regard to funds appropriated by the House of Assembly. The co-plaintiffs and those who seek consolidation will appear today before a seven-member panel of the apex court led by Justice Uwani Abba-Aji. This is an interesting development, with regard to the public interest law dimension of the case, and the response from the public and stakeholders have been robust, plus the fact that the enabling framework for public institutions and the Constitution itself end up being strengthened when they are tested and interpreted in the courts. 

The issues in this case can be easily summarised as follows. One, the plaintiffs argue that the EFCC Act is unconstitutional. It is a product of a United Nations Convention against corruption, and was not ratified in accordance with Section 12 of the 1999 Constitution (as amended). Section 12 of the Constitution says no treaty can have the force of law in Nigeria until it is ratified by a majority of all the Houses of Assembly in the Federation. The states argue that the EFCC Act cannot be applied to them because they were not party to it. They argue that the agencies lack the powers and the authority to investigate and prosecute matters related to the misappropriation of public funds. They cite Joseph Nwobike vs FRN as the authority to back up their claim. The Defendant, the Attorney General of the Federation, argues that the concurrence of the states as stakeholders was not necessary to make the EFCC Act valid. Two, at least three states argue that the NFIU cannot investigate, requisition documents, arrest, or invite anyone with regard to how the states manage their funds. Three, the states insist that they have the right to establish their own anti-graft agencies and not be answerable to any federal agency, since this is a Federation. 

The case has generated considerable interest from both lawyers and non-lawyers alike, with everyone trying not to pre-empt the Supreme Court. But the point has been well made that this is not the first time that the legality of the EFCC, and the NFIU et al. has been raised and that there are precedents. Analysts have cited the cases of Olafisoye v. FRN (2004), where the court upheld the powers of the anti-corruption agencies to do their work, and AG Ondo State v. AG Federation (2002), where the court ruled that the National Assembly has the powers to legislate on corruption related matters with regard to Section 15(5) of the 1999 Constitution, and Section 4(2). In Olafisoye’s case, the Supreme Court ruled that the National Assembly has the exclusive powers to legislate over corruption matters, which would seem to nullify the claim by the states that they would rather establish their own anti-graft agencies.

The objection to the NFIU is rooted in the desperate attempts by the states to control local government funds and defeat the goals of financial autonomy for local councils. In 2019, the state governments had a running battle with the NFIU, which had given a directive that no state government must touch funds meant for the local councils. The NFIU gave specific guidelines that the states should transfer funds meant for the councils accordingly and that withdrawal from the same account by the local councils must not exceed N500,000 per day. Withdrawals must also be duly reported to the NFIU. The governors insisted that the states-local councils joint account is a creation of the Constitution and it was wrong to describe the local government system as a third tier of government. The Nigerian Governors Forum sued the FG and NFIU. In 2022, Justice Inyang Ekwo of the Federal High Court, Abuja ruled in favour of the defendants. Again in 2024, the Supreme Court further affirmed the financial autonomy of the country’s 774 local governments. It is therefore not surprising that the states and the governors who have turned the local councils into mere appendages are now also approaching the Supreme Court. In both major issues, the plaintiffs seem to have found a loophole in the enabling acts of the anti-graft agencies which they hope to put through the furnace of judicial test. 

Two legal luminaries, both Senior Advocates of Nigeria – Dr Olisa Agbakoba and Mr Femi Falana – have offered their perspectives on the subject. Agbakoba, in separate letters titled “Re: Urgent Legislative Attention on Constitutional Reforms Relating to Law Enforcement Agencies and Anti-Corruption Efforts” written to the Senate and the House of Representatives, without holding brief for the state governments, submitted that the EFCC was “unconstitutionally established” and hence, “an unlawful organization.” He said the National Assembly acted ultra vires, simply exceeded its authority under Section 4 of the Constitution, and that is why the states are challenging the validity of the EFCC. Agbakoba (SAN) made specific demands: (a) that the enabling framework setting up the EFCC has to be reviewed because the EFCC appears to be working at cross-purposes with the Nigeria Police Force; (b) that the National Assembly should organise a public hearing to consider constitutional issues to discuss needed reforms in line with section 13 of the Constitution; (c) that the National Assembly should reform the EFCC by clearly defining its mandate to prevent future abuses.

Having thus raised the facts of the case, the issues involved, rules as established in precedents, and expert opinions of senior counsel, it remains for us to await the ruling of the Supreme Court exercising its original and inherent jurisdictions in what is clearly a matter of public policy. Despite the precedents that have been quoted, it is up to the Justices of the apex court to either affirm or reverse themselves. Nonetheless, certain conclusions can be reached. 

When he appeared on Arise News flagship programme, “The Morning Show,” Agbakoba went a step further by reminding everyone that the EFCC legislation was passed in two days in 2003 – the fastest law ever passed in Nigeria (!), and many mistakes were made. He wants the mistakes in the EFCC Act reviewed. But the high point of the interview was when Dr Agbakoba, saying the EFCC has not been effective, railed: “These guys are terrorists; in my view they terrorise us; they use their might in their red coats to terrorise us. Once you say EFCC, you are scared. That is not what a law enforcement agency should be. They ought to be better.”

Femi Falana (SAN) disagrees with some of the points raised by his brother Silk. He has also written his own separate letters to the Senate and the House of Representatives to counter Agbakoba’s submissions. He said that contrary to Agbakoba’s claim, the Supreme Court has consistently supported the ICPC and the EFCC (Nyame vs. FRN; AG Ondo vs. AG Federation), and that no illegality can be established with regard to claims about violations of the principles of federalism (Olafisoye vs FRN). Falana further contends that it is the duty of the state to “abolish all corrupt practices and abuse of power” and that the EFCC is a common agency with constitutional authority. He deplores the attempt by the state governments to frustrate the prosecution of public officers. Falana’s main conclusion is that the National Assembly should entrench the legality of the EFCC and ICPC in the Constitution as part of the ongoing Constitution amendment process – a point to which Agbakoba says he concurs. 

Having thus raised the facts of the case, the issues involved, rules as established in precedents, and expert opinions of senior counsel, it remains for us to await the ruling of the Supreme Court exercising its original and inherent jurisdictions in what is clearly a matter of public policy. Despite the precedents that have been quoted, it is up to the Justices of the apex court to either affirm or reverse themselves. Nonetheless, certain conclusions can be reached. 

It must be remembered that in 2003, Nigeria was heavily in debt to the tune of about US$35. 9 billion. The Obasanjo administration embarked on the historic and important mission of getting debt relief for the country. The country was spending more on interest payments for its debt, with debt to GDP ratio at about 58 per cent. Nigeria needed help and President Obasanjo was committed to getting help to rescue the country. In October 2000, the Obasanjo administration established the Debt Management Office (DMO). The country’s efforts to secure debt relief soon met a brick wall, when the Paris-based Financial Action Task Force (FATF) grey-listed Nigeria along with 22 other countries, that is countries that could not combat financial crimes like corruption and money laundering, as well as terrorism financing. To make progress, the Nigerian government had to set up anti-corruption agencies – the EFCC and the ICPC. Both bodies were products of expediency, but the outcomes were pleasant. In October 2005, Nigeria and the Paris Club reached a final agreement of $18 billion debt relief and reduction of Nigeria’s debt stock by $30 billion. About 18 years later, it is most unfortunate that Nigeria’s external debt has since crossed the $41 billion mark! The country is back in the debt trap. In the intervening years, the EFCC traced about N776 billion fraud cases, stolen only by public officials. In 2024 alone, this year, the EFCC has secured 3,175 convictions and recovered N156 billion. 

So, is this a case of corruption fighting back? Dele Oyewale, EFCC spokesperson, claims that there is a push-back against the EFCC because it has been so effective. We must note the concern that has been expressed however that the EFCC has been too histrionic in its efforts and selective in its operations, creating the impression that it can be used as a tool of political witch-hunt by whoever is in power at the centre. Some past governors are shielded from prosecution, while some others are specially targeted. What the EFCC requires is to be seen to be fair to all parties concerned and be above board. Fairness is at the heart of any justice administration process. This is what Agbakoba (SAN) alludes to when he dismisses the EFCC as a terror organisation.

The state has a responsibility to check corruption, and over the years, we have seen the ingenuity of Nigerians in both public and private places to take what is not theirs. The closer many Nigerians get to the proverbial national cake, the more covetous they become. Agbakoba says “once you say EFCC, you are scared.” Well, the situation is so bad, somebody needs to scare Nigerians. Even with the best efforts of the various anti-graft agencies, Nigeria has consistently ranked poorly on the Global Transparency Index. The country grapples with a worsening reputational damage. 

The National Assembly has been accused of not following due process in establishing the EFCC, but even if that were established, would that render all acts by the EFCC and other anti-graft agencies a nullity? Under the doctrine of covering the field, the validity of the exercise of the National Assembly’s powers under Section 4 of the 1999 Constitution can be upheld. The state has a responsibility to check corruption, and over the years, we have seen the ingenuity of Nigerians in both public and private places to take what is not theirs. The closer many Nigerians get to the proverbial national cake, the more covetous they become. Agbakoba says “once you say EFCC, you are scared.” Well, the situation is so bad, somebody needs to scare Nigerians. Even with the best efforts of the various anti-graft agencies, Nigeria has consistently ranked poorly on the Global Transparency Index. The country grapples with a worsening reputational damage. 

We should therefore not throw the baby away with the bath water. Nigeria needs the anti-graft agencies now more than the country did in 2003. Indeed, in February 2023, the FATF added Nigeria again to the list of countries that have been grey-listed. The country is required to implement an action plan comprising 19 items before May 2025 to avoid the certain prospect of moving from “the Grey List” to the “Black List.” This certainly is not the best of times for Nigeria to start talking about nullifying its anti-graft agencies. Perhaps, the better option lies in the middle ground between Agbakoba and Falana. 

Agbakoba is right when he says the EFCC is in urgent need of reform. The agency must be seen to be acting always within the ambits of the law. In recent times, EFCC officials showed too much zealousness, exposing the institution to public ridicule and the derision of the persons they had declared wanted. For example, the former Kogi Governor Yahaya Bello, who had been declared wanted by the EFCC, showed up at the EFCC headquarters only to be told by the people who had declared him wanted locally and internationally to go back home. Then, in the evening of the same day, they went hunting for him, shooting in the air, and terrorising the public. Just in case there are too many people in the EFCC who are addicts of Hollywood and Nollywood films, they should be redirected to where they can make the best use of their talents. Such persons tend to turn EFCC operations into movie-like engagements. Nollywood is a fast-growing industry that can accommodate more talents. The EFCC should stay firmly on the path of professionalism. 

Both Falana and Agbakoba agree that there is a need to “constitutionalise” the EFCC. This is important. Whatever grey areas may exist in the enabling acts of the anti-graft agencies can be corrected through amendments to constitutional provisions and the acts. The EFCC, ICPC, NFIU should see the latest development, not as evidence that they are working, so that is why they are being resisted. This should be an opportunity for soul-searching and reflection, and a re-dedication to core organisational goals and objectives. Nigerians are calling for the abolition of the agencies because of shortcomings that they have observed. EFCC officials are known, for example, for engaging in all kinds of tactics. At a point, the EFCC Chairman himself had to complain that there are corrupt elements in the EFCC. Going forward, EFCC officials must be made to declare their assets. People fighting corruption must not be seen to be living above their means. Many Nigerians wonder why anti-corruption agents become so rich. This was how the police lost the trust of the public. EFCC officials must focus on their core task of fighting financial and economic crimes. They should not allow themselves to be used as debt recovery agents looking for commissions. They must stop media trial. They must stop supporting politicians, as they were accused of doing in the last general elections. There is a Manual on operational guidelines for the EFCC prepared by the Office of the Attorney General of the Federation and Minister of Justice. They must abide by those guidelines, and resist the temptation to become an organisation where anything goes. The EFCC needs its own ombudsman to make it more professional, ethical and law-abiding. 

Reuben Abati, a former presidential spokesperson, writes from Lagos.