When State Governors Play Politics With EFCC

Cabinet Reshuffle: An Anti-Climax

I cannot but comment on President Bola Tinubu’s Cabinet Reshuffle, which turned out to be quite an anti-climax. For instance, for the former Minister of Sports, the 2024 Paris Olympics turned out to be his baptism of fire, for which there was no redemption – he performed woefully; yet, instead of the President keeping to his admonition that non-performers would be shown the way out, he was given a slap on the wrist, ‘demoted’ in title only, to a very important Ministry, while other scape goats who probably performed better than him, were ‘discharged’. Additionally, critical areas that affect the daily lives of Nigerians and require attention because they are functioning way below par at the moment, were left untouched; such as, Petroleum (particularly in the areas of fuel supply, oil production, and harnessing of gas), Security and Power. For those complaining about areas like agriculture, these sectors are somewhat incapacitated, in that without a significant improvement in the security situation, it would be difficult to make any remarkable achievements in that sector, since many farmers are unable to go to their farms for fear of being killed, maimed or kidnapped. Until Farmers are no longer sitting ducks to be attacked by Herders, Terrorists, Bandits, Killers and Kidnappers, I’m not sure that agriculture can reach any potential in Nigeria,  let alone its full potential. Correct me if I’m wrong!

Regarding the Petroleum part, it should be that such a critical area, the major source of Nigeria’s revenue, should have a substantive head that is dedicated solely to that job, as opposed to one that juggles all the matters of State as President, which is more than a full-time job, with it. President Obasanjo was the first President to act as the Minister of Petroleum Resources. This runs foul of Section 138 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) which clearly prohibits the President from holding any other executive office during his tenure; but, he only appointed a Minister of State of Petroleum towards the end of his tenure. While Presidents Yar’Adua and Jonathan didn’t follow President Obasanjo’s ‘military’ footsteps and observe the Constitution in its breach in this regard – they appointed substantive Petroleum Ministers, naturally, President Buhari reverted to the unconstitutional military path which his successor, President Tinubu, has also followed by keeping himself as the substantive Minister, and appointing two Petroleum Ministers of State, one for oil and one for gas. See NPF & Ors v Police Service Commission & Anor (2023) LPELR-60782(SC) per Adamu Jauro, JSC on the supremacy of the Constitution and its bindingness on all persons and authorities in Nigeria. Also see the case of AG Lagos State v AGF (2004) LPELR-10(SC) per Muhammadu Lawal Uwais, JSC (later CJN) on the powers vested on the President in Section 5(1)(a) of the Constitution not extending to committing illegality.  However, in a Channels TV interview on Sunday, Presidential Spokesman, Bayo Onanuga denied that President Tinubu has committed this illegality, saying that he never proclaimed himself to be the Minister of Petroleum – as if the non-appointment of a substantive Minister, is not enough proclamation! Furthermore, it is trite that a thing may be stated expressly, or it can also be implied.

The State Governments and the EFCC Question  

The aforementioned Petroleum Ministry example, the declaration of Sharia Law in the Northern States contrary to Section 10 of the Constitution, the exercise of criminal jurisdiction by Sharia Courts contrary to Sections 262 & 277 of the Constitution are clear evidence that different levels of Government certainly observe the Constitution in its breach and disobey laws. However, there’s no uproar about this, because when it is convenient or beneficial to Government and public officials, particularly when politicians are able to use these issues to play politics to their own advantage, it’s not a problem, and there are no complaints from any of the branches of government. When the CBN/FGN were in clear breach of Section 38 of the Central Bank of Nigeria Act 2007 (CBN Act) with regard to the Ways and Means regime, there were no complaints from any branch of government, not from the Governors anyway, as long as they got their FAAC Allocations, albeit through an unlawful process. 

But, now that it is on a matter that may affect them adversely, since a good number of Governors now end up being prosecuted for corruption when they leave office, the legality of the law establishing the Economic and Financial Crimes Commission (EFCC), the body that prosecutes them, that is, the EFCC (Establishment) Act 2007 (EFCC Act), is being challenged. What would be the basis of this challenge, by the State Governments that have instituted this action? See in comparison, the case of AG Ondo State v AGF 2022 27 WRN 1 where the Supreme Court upheld the legality of the ICPC Act. 

First, it has been argued that, the EFCC goes against the spirit of Federalism. I found that observation rather amusing, considering the fact that Nigeria is actually practising a Unitary system, and Federalism is mostly in name only. See the case of AG Abia State & Ors v AGF 2022 (2022) LPELR-57010(SC) per Helen Moronkeji Ogunwumiju, JSC where the Supreme Court held that “There is no doubt that the Nigerian brand of “Federalism” as provided by the CFRN (as altered), is different from other brands of federalism. There are some provisions that clearly show the Nigerian brand as a quasi-Federal or an elevated unitary system of government, rather than the theoretical brand of federalism envisaged by political legal theorists”. Anyway, the truth is that, when it is about enjoying the benefits derived from the concentration of powers in a centralised government, it’s not too much of a problem, except where the Governors, who are desperate to arrogate more powers onto themselves, see as it as something that reduces their powers or something that may affect them adversely. 

It appears that the issue of EFCC may be a source of irritation for Governors, particularly because in the past, in some circumstances, some have argued that the Agency has been used as a witch-hunting tool against them. But, this isn’t always the case, as many of the Governors certainly deserve to be, if we go by the examples we have seen with the Local Governments (LG) before their finances were recently wrestled away from the State Governments, we see that Governors had turned the LGs into their appendages. With how State Governors also manipulate their State Independent Electoral Commission (SIEC) and LG elections, to ensure they maintain control of all the LGs in their States, anyone suggesting State EFCC to prosecute Governors for money laundering and other corrupt practices, isn’t taking the issue of corruption seriously, as they know that State EFCC would probably be ineffective lame ducks, unless when they are used for the purpose of political witch-hunting of predecessors and other staff that may be members of a rival party or political adversaries etc. 

In any event, public corruption appears to be a Federal Offence. In the USA for instance, where Federalism is practised, one of the major functions of the FBI (Federal Bureau of Investigations) is to combat public corruption at all levels. Several laws, such as the Hobbs Act 1934, provide the means for the Federal prosecution of public corruption. Though the Federal Official Bribery and Gratuity Statute 18 U.S.C.§201 prohibits the bribery of Federal Officials, the US Supreme Court held that $201 may be used to prosecute corruption of State and Local Officials. See the case of Dixson v United States 465 U.S. 482 (1984). So, Federalism or not, the FBI can prosecute corruption cases at all levels.

Of course, I wasn’t surprised to see that Kogi State is at the forefront of the self-serving, misguided suit at the Supreme Court, at least, as far as the issue of the legality of EFCC Act is concerned, since Kogi’s paramount ruler, former Governor, Yahaya Bello has been dragged to court by the EFCC to face money laundering, fraud and other criminal charges in excess of N100 billion, and he’s presently a fugitive, having been declared wanted by the EFCC, and is trying to escape justice by all means. 

I firmly support the Attorney-General of the Federation, Prince Lateef Fagbemi, SAN’s submission at the Supreme Court in the course of the hearing of this suit, about the enactment of the EFCC Act, not having to rest on the UN Convention Against Corruption. It isn’t necessary that it has to follow the procedure laid down in Section 12 of the Constitution, for the domestication of foreign treaties before it can come into force in Nigeria. UN Convention or not, corruption is a pervasive problem in Nigeria, and Section 15(5) of the Constitution mandates the State to abolish all corrupt practices and abuse of power; and, it is in fulfilment of this Fundamental Objective and Directive Principle of State Policy that the EFCC was established. Section 4(2) of the Constitution empowers the National Assembly (NASS) to make laws with respect to everything included on the Exclusive Legislative List of the Constitution, and Item 60(a) thereof refers to “The establishment and regulation of authorities for the Federation or any part thereof to promote and enhance the observance of the Fundamental Objective and Directive Principles contained in this Constitution”, of which the EFCC is one such authority or agency. Also see Items 45 & 68 on the Exclusive Legislative List; Section 46 of the EFCC Act and the case of Nwobike v FRN (2021) LPELR-56670(SC) per Helen Moronkeji Ogunwumiju, JSC on the wide prosecutorial powers of the EFCC. 

The attempt by anyone to try to bring in the procedure of domestication of a foreign law as a tool to challenge the legality of the EFCC, is simply a not-so-clever way of trying to get rid of the EFCC. I’m not sure that such an argument has merit. In Nwobike v FRN (Supra) per Tijjani Abubakar, JSC, the Supreme Court held that “Indeed, the effect of the combined provisions of Sections 6(b); 7(1)(a) & (2)(f) and 13(2) of the EFCC (Establishment) Act, leaves no doubt that the EFCC has the power to investigate, enforce and prosecute offenders for any offence, whether under the Act or any other statute, in so far as the offence relates to commission of economic and financial crimes”. Can there be more of an affirmation of the legality and constitutionality of the EFCC and its duties in relation to economic and financial crimes, more than this ratio decidendi in Tijjani Abubakar, JSC’s lead judgement in this case? 

Conclusion 

While its good for the law to be dynamic, to keep developing and improving, it is wrong for public officials with the aid of Senior Lawyers, to continue play politics with the law, particularly one that is enacted for the betterment of society, and try to rubbish and diminish it, simply for their own protection and benefit. To the extent that one of the principal objectives of the State is to abolish corruption, and the EFCC was established as a means to achieve this end by a law duly enacted by NASS, the body empowered to make laws in this regard, I see no reason why the legality of EFCC should be in question. While criticisms that EFCC and other agencies like ICPC duplicate efforts, or EFCC officials act ultra vires their remit, or abuse their powers and engage in unlawful activities that do not qualify as economic or financial crimes, like debt recovery, cannot be discounted as unfounded, this is another matter, distinct from the legality of the EFCC.