Can the EFCC Investigate States?

The recent directive by the Attorney General of the Federation to the Economic and Financial Crimes Commission to investigate the Rivers State Government withdrawal of its funds has again raised the question of whether or not the anti-graft commission has the powers to investigate the states. Davidson Iriekpen writes

The Office Attorney General of the Federation (AGF) and Minister of Justice and the Rivers State Government are at loggerheads over a directive by the former to probe the latter.

In the report published by a national newspaper, the AGF, Mr. Abubakar Malami (SAN), was alleged to have directed the Economic and Financial Crimes Commission (EFCC) to investigate the withdrawal of over N11billion from the Rivers State Government’s account with the Central Bank of Nigeria (CBN) by the Director of Finance and Administration of the state’s Government House, one Mr. Kingsley Fubara, between October, 2015 and February, 2016.

The anti-graft agency was also directed to probe the transfer of another sum of N1.5billion from the state’s account with the CBN to the Zenith Bank Plc account that belongs to one Mr. Samuel Anya “on or about January 27, 2016.”

One question the AGF’s directive has raised is whether the EFCC or any other anti-graft agency can investigate the state government? But beyond that, the directive has confirmed the fears expressed by most Nigerians that the All Progressives Congress (APC)-led federal government is out to totally muzzle the opposition. They cannot understand why the AGF would order the probe of a state government, which chooses to withdraw its money from the bank.

While THISDAY gathered that the directive to probe the state government might not be unconnected with the many efforts to discredit it especially with the rerun elections fast approaching, others wondered why the AGF did not order the probe of a former governor of the state for alleged corruption despite the many petitions the state government sent to the appropriate authorities to that effect.

They also wondered the silence of the AGF and the anti-graft agencies, when a prominent and vocal minister in the Buhari administration was accused of demanding the sum of N13million from a parastatal under his ministry to cover tickets and travel expenses to China to attend a conference on tourism for development, when he has a budget in his ministry.

Also, a few days ago, another minister and his deputy, were alleged to have diverted the sum of N2 billion from the N20 billion recently released to agro-dealers by the federal government. But all the AGF did was to watch the ministers deny the allegations without urging any of the anti-graft agencies to probe the allegations. And the issues were swept under the carpet.

But to show that the directive was a witch-hunt and an attempt to scandalise it, the state government in a swift reaction, disowned Fubara, saying there was nobody with such name either as a Director of Finance and Administration or in its employ. The state Commissioner for Information and Communications, Dr. Austin Tam-George, who knew where the directive was being orchestrated from, described the report as patently false, saying the state never conducted such financial transactions.

“The Rivers State Government has no record of any staff known as Kingsely Fubara. This must be a fictional character created by the All Progressives Congress (APC)) and its co-conspirators to embarrass the state government and deceive the public. By law, the Rivers State Government is accountable to the Rivers State House of Assembly and the people of Rivers State, not to the Attorney General of the Federation. This is a totally fictitious report typically orchestrated by the APC and its media allies.

“But the story raises fundamental questions about the moral horror of an anti-graft agency that is now openly partisan in all its intentions and actions. There is a universal concern that the EFCC is playing an extremely corrosive role in the current political dispensation. Rather than fight corruption in a professional and dispassionate manner, the EFCC behaves like an integral organ of the APC. An anti-graft commission that targets only the opposition politicians and critics of the failed policies of the APC government is a national embarrassment.

“Has the EFCC ever heard of one Mr. Rotimi Amaechi, the former governor of Rivers State and current Minister of Transport? Despite receiving over N1trillion in eight years as governor, Amaechi left the most abandoned projects in the history of Rivers State, since 1967. Several petitions against Amaechi, supported by sworn affidavits, have all been summarily ignored by the EFCC.

“Even chieftains of the APC have publicly acknowledged Amaechi’s stupendous financial contributions to the party’s presidential campaign in 2015. These financial contributions, estimated at billions of naira, constitute serious financial crime against the people of Rivers State. The government and people of Rivers State will resist any politically-motivated targeting of its leaders by any agency of the federal government, by whatever name it is called.”

On his part, the state governor, Nyesom Wike, described the allegations as untrue, unfounded and salacious aimed at both scintillating the reading public and scandalising the state government “by the usual methods of trial on the pages of newspapers devoid of verifiable facts. The wild allegations contained in the said publication would be appropriately addressed and their falsity shown when they are raised by due process of law in the appropriate forum.”

In a statement by the state Attorney General and Commissioner for Justice, Emmanuel Aguma (SAN), Wike reminded the AGF and the EFCC of two subsisting judgments of the High Court of Rivers State and the Federal High Court that bar the anti-graft agency from investigating the finances of the state.

The first judgment was at the High Court of Rivers State in suit number PHC/114/2007: Attorney-General of Rivers State vs the Speaker of Rivers State House of Assembly and 36 others. The judgment which was delivered by Justice Peter Agumagu on February 16, 2007, enunciated the following principles of law, which till date has not been set-aside by the EFCC in any appellate court.

The principles of law are: By the combined effects of section 125 subsections (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution), it is the House of Assembly of a state, Rivers State inclusive, that has the final say on matters pertaining to the funds of the state as laid before it by the Auditor-General’s Audit Report of all public accounts and the Accountant-General’s financial statements and published annual accounts.

These powers are exercised independently without the direction, dictation, control or manipulation of any other authority or person. The constitution does not vest on investigating bodies such as the EFCC or the police or law officers like the Attorney-General of the Federation any powers to direct or control the House of Assembly of a state in the performance of its aforementioned function of superintending over the funds of a state. Neither do the Attorney-General of the Federation, the police or the EFCC have any constitutional powers to direct how the Accountant-General or the Auditor General of a state performs their respective functions.

“By the combined provisions of sections 128 and 129 of the 1999 Constitution, it is the House of Assembly of a state that is vested with the power to superintend or police all funds of the state and ‘to expose corruption and waste in the management of public and consolidated revenue funds of a state.’ The powers of the House of Assembly contained in section 128 of the 1999 Constitution are exclusively reserved for them.

“The federal government or any of its agencies does not share this power with the House of Assembly. Neither the police, nor the EFCC is constitutionally empowered to share power with the House of Assembly. It will amount to an unconstitutional act for the EFCC or the ICPC to usurp this power of the House of Assembly. The EFCC has no constitutional power and control over public and consolidated revenue funds of Rivers State, and to that extent is not entitled to audit its accounts or tamper with its bank statements and records.”

The Federal High Court in line with the tenor of the judgment of the High Court mentioned above made specific injunctive orders in its judgment delivered on the 20th day of March 2007, restraining the EFCC (the 1st defendant in the said suit) from specific acts. The federal court made the following peremptory orders: “(a) An order of injunction restraining the 1st defendant by itself or by its servants or agents or in any manner howsoever from purporting to investigate or inquire into the appropriation, disbursing, administering, or management of the funds of Rivers State is hereby made.

“(b) An order of injunction restraining the 1st defendant (EFCC) by itself or by its servants or agents or in any manner howsoever from disseminating, publishing or circulating to any government, government agency, the news media or members of the public or in any manner at all, he (sic) purported or findings in respect of any investigation or inquiry into the appropriation, disbursing, administering or management of the funds of Rivers State or putting the said report or finding to any use whatsoever is hereby made.”

Wike argued that on the strength of the decision of Justice Agumagu, the EFCC has no business with how the state spends its finances until the state assembly performs its duties and invites the anti-graft agency to investigate a crime pursuant to sections 6 and 7 of the EFCC No.1 of 2004. He contended that the judgment delivered over nine years ago is valid and subsisting and has not been set aside, adding that it was still binding and in force, and that it cannot be overruled by administrative fiat by any official of government no matter how highly placed.

In his conclusion, the governor, who is also a lawyer, reminded the AGF of Rule 24 of our Rules of Professional Conduct titled: ‘The Lawyer’s Duty in its Last Analysis,’ which provides: “Lawyers are in duty bound to uphold the law; and no service or advice ought to be rendered or given by them to clients, corporate or individual, of any description or to any cause whatsoever involving disloyalty to the law or bringing disrespect upon the holder of any judicial office or involving corruption of holders of any public office. Improper service or advice in such circumstances as aforesaid is unethical and merits strong condemnation as unprofessional conduct.
“On the other hand, service or advice rendered or given that not only accords with the letter of the law but also embraces moral principle cannot be too highly commended. He must also observe and advise his client to observe the statute law, save that until a statute has been construed and interpreted by competent adjudication, he is free and is entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent. Above all, a lawyer finds his highest honour in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen.

“It is with utmost respect that in keeping with my capacity and my instruction and direction, that I respectfully urge you sir as the Chief Law Officer of the Federation and custodian of the Constitution of Nigeria which is premised on the rule of law to advise the EFCC on the limits of its powers. The judgments we have respectfully referred you to sir are judgments in rem and are binding on all the parties to the suits including the EFCC.”

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But the story raises fundamental questions about the moral horror of an anti-graft agency that is now openly partisan in all its intentions and actions. There is a universal concern that the EFCC is playing an extremely corrosive role in the current political dispensation. Rather than fight corruption in a professional and dispassionate manner, the EFCC behaves like an integral organ of the APC. An anti-graft commission that targets only the opposition politicians and critics of the failed policies of the APC government is a national embarrassment