Falana tackles Agbakoba over EFCC legal status

Dr Olisa Agbakoba (SAN) and Femi Falana (SAN)

Falana tackles Agbakoba over EFCC legal status

Human rights activist and lawyer, Femi Falana (SAN), has written to the President of the Senate, Senator Godswill Akpabio, and the Speaker of the House of Representatives, Tajudeen Abbas, to oppose the view expressed by the ex-president of the Nigerian Bar Association, Dr Olisa Agbakoba (SAN), regarding the legal status of the Economic and Financial Crimes Commission (EFCC).

In a letter dated 17 October 2024, Falana disagreed with Agbakoba’s assertion that the EFCC is an “unlawful organisation.”

The letter read: “Our attention has been drawn to separate letters addressed to the Senate and House of Representatives, dated 14 October 2024, entitled: ‘Re: Urgent Legislative Attention on Constitutional Reforms Relating to Law Enforcement Agencies and Anti-Corruption Efforts,’ in which Dr Olisa Agbakoba argued that the power under which the EFCC was established exceeds the powers of the National Assembly.

“Convinced that the Economic and Financial Crimes Commission is ‘an unlawful organisation’ because it was ‘unconstitutionally established,’ Agbakoba stated that he was pleased to see many states challenging the constitutionality of the EFCC.”

Falana further stated that Agbakoba did not cite any case to substantiate his claim that the Supreme Court had criticised the EFCC’s activities and existence.

He stated, “Even though Dr Agbakoba did not refer to any particular case, he claimed that the Supreme Court has often criticised the EFCC. On the contrary, the Supreme Court has consistently supported the efforts of both the ICPC and EFCC in combating the miasma of monumental corruption in the country.”

Falana also noted that Agbakoba’s position was based on the premise that the establishment of the EFCC violated the basic principles of federalism.

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“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) challenged the constitutional validity of the Independent Corrupt Practices and Other Related 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 Professor Ben Nwabueze and Dr Agbakoba acted as amici curiae, while I was privileged to represent one of the Defendants. It is on record that several Defendants and the amici curiae argued extensively that the ICPC Act was unconstitutional in every material particular. Both amici curiae urged the court to annul the ICPC Act.

“Upon critically analysing the submissions of all counsel, including the amici curiae, the apex court upheld the constitutional validity of the ICPC Act. In the leading judgment delivered by Uwais CJN (as he then was), it was held that the National Assembly has the sole power to establish and regulate authorities for the federation or any part thereof to promote and enforce the nation’s responsibility to abolish all corrupt practices and abuse of power, as enshrined 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 itself that facilitates the breach. As long as the aberration is supported by the provisions of the Constitution, it cannot rightly be argued that any illegality has occurred due to the Constitution’s failure to adhere to cardinal principles, which are at best ideals for guidance in 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.”

He added, “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 affairs of 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 pending case at the Supreme Court of Nigeria, it is pertinent to refer members of the National Assembly to the case of Attorney-General of Abia State v Attorney-General of the Federation (2024) LPELR-62576 (SC). In that case, the Plaintiff argued that the EFCC’s power to prosecute financial crimes did not extend to managing the accounts of the Abia State Government.

“The Plaintiff sought declarations, including a perpetual injunction, to prevent the EFCC from taking such actions, including freezing its bank accounts. The Defendant (AGF) filed a preliminary objection, arguing that it had been incorrectly sued, as the EFCC was an independent body outside its lawful management and control.

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“In upholding the Defendants’ preliminary objection, the Supreme Court held that 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.”

Speaking further, Falana noted that since the establishment of the EFCC, no one had challenged the legality of the EFCC Act in any court of law.

“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, several former governors have continued to question the EFCC’s authority 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. the 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 the EFCC with the function and duty of investigating and prosecuting persons suspected of engaging in financial crimes. It is unreasonable for a person to rush to court to place a clog or shield against criminal investigation and prosecution’.”

Arguing further, Falana stated, “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 at 398, held that ‘in the co-operative federalism practised in Nigeria, the EFCC is a common agency empowered to investigate and prosecute offenders for both federal and state economic and financial crimes and as such qualifies as ‘any other authority or person’ empowered by section 211(1)(b) of the Constitution to institute or initiate criminal proceedings’.”

“The 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 as long as they are financial crimes.”

Falana criticised some state governments for seeking to frustrate the Federal Government’s anti-graft initiatives instead of supporting these agencies to thrive.

He added, “Instead of ensuring that the EFCC, ICPC, and Code of Conduct Bureau serve as ‘common agencies’ of the people of Nigeria in combating monumental corruption, some state governments have shown a tendency to terminate grave economic and financial crimes by filing nolle prosequi applications.

“Others typically rush to either State High Court or Federal High Court to obtain frivolous court injunctions to frustrate the prosecution of serving public officers, thereby making a mockery of public accountability and transparency in government.”

Falana urged the National Assembly to seize the opportunity provided by the ongoing Constitution amendment to resolve questions about the legality of the EFCC and the Independent Corrupt Practices and Other Related Offences Commission by entrenching both in the Constitution.

“In light of the foregoing, we urge 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 the Economic and Financial Crimes Commission and the Independent Corrupt Practices and Other Related 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 stated.

Falana tackles Agbakoba over EFCC legal status

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