The Lagos Anti-Graft Agency

There may be more to the new Lagos State anti-corruption act
Lagos State Governor, Babajide Sanwo-Olu last week assented to a legislation with the tittle ‘Public Complaints and Anti-Corruption Commission Bill, 2021. With it, the Lagos State government would be setting up an anti-graft commission to investigate and prosecute government officials and registered contractors indicted for economic crimes and financial misappropriation. If after investigation a prima facie case is established, according to the new law, the offender(s) would be prosecuted in court.

Ordinarily, there is nothing wrong for a government seeking to ‘fight corruption’. But certain provisions in the law seem targeted at the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Related Offences Commission (ICPC). Specifically, section 13(3), says, “The commission shall upon the commencement of this law take over the investigation of all anti-corruption and financial crime cases involving the finances and assets of Lagos State Government being investigated by any other agency.” Section 13(5) also states, “The commission shall have the power to the exclusion of any other agency or body to investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government.”

The implication is that all corruption cases against former and serving Lagos officials will be ‘taken over’ by this new agency. Whatever may be the legal justifications, it is a cynical way of dealing with a serious problem. Despite its shortcomings, the EFCC has managed to prosecute many politically exposed people, including former governors who otherwise would have escaped from being called to account in their states. And there is nothing to suggest the cases that the Lagos authority wants to take over will be diligently prosecuted. But it is difficult to fault Lagos on legal grounds. Several court judgements (both in states and at federal) involving the EFCC and former governors have gone against the commission regarding investigating finances of the states. But in the case involving Rochas Okorocha, Justice Ahmed Mohammed of the Federal High Court, Abuja, declined to toe the same line of his fellow justices by refusing to restrain the EFCC from investigating the former Imo State governor.

However, the main issue here is the legal and constitutional burdens that limit Houses of Assembly from duplicating legislations where there is already a federal legislation on the same issue. For instance, Article 4 (5) of the 1999 constitution (as amended), states clearly, “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.”

Justice Taiwo Taiwo of the Federal High Court in his ruling restraining the EFCC from investigating Ekiti State finance under Governor Ayo Fayose, referred to section 125 (c) of the constitution and said, “It is unassailable that there is separation of powers.” Accordingly, he said, “The powers for control of fund, financial outflow and appropriation are vested in the House of Assembly.” The EFCC, Justice Taiwo added, “is bound to operate within the constitution and cannot operate like the lord of the manor. It is statutory duty is not a licence to contravene the Constitution”.

The question remains: How could this argument be sustained in the face of section 4 sub section 5 of the 1999 constitution as amended which states that enactments by National Assembly will always prevail over and above laws made by State Houses of Assembly? More worrisome is that none of the litigants on the matter has approached an appellate court to authenticate the rulings and judgements of the High Courts or even appeal the rulings. That is the lacuna that the Lagos State government is relying on to establish its curious anti-corruption agency.

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Despite its shortcomings, the EFCC has managed to prosecute many politically exposed people, including former governors who otherwise would have escaped from being called to account in their states