It emerged last week that the Supreme Court has fixed October 22 to hear a suit against the federal government on the establishment of the Economic and Financial Crimes Commission (EFCC) that could lead to its scrapping if the court finds the process of its creation inchoate. The suit was filed by almost half of Nigeria’s subnational with chances that the figure could rise as the case progresses.

The kernel of their argument is jurisdictional. They posit that the process for its establishment was not supported by at least two-thirds of the states of the federation, as envisaged by the Constitution. They argued further that this omission restricts the EFCC activities to be limited to federal matters only and shouldn’t be extended to the states. Indeed, in the past one or two states have attempted to set up EFCC’s parallel organizations in their states, but this hasn’t succeeded.

Details of the Suit

The states (plaintiffs) question that the setting up of the EFCC, through the EFCC (Establishment) Act 2004, was not in conformity with the provisions of Section 12 of the 1999 Constitution (as amended) which reads: “No treaty between the federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

“The National Assembly may make laws for the Federation or any part thereof concerning matters not included in the Exclusive Legislative List to implement a treaty. A bill for an Act of the National Assembly passed under the provisions of subsection (2) of this section shall not be presented to the President for assent and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation.”

The plaintiffs also contended that as contained in Section 12(3) of the constitution, most of the state Houses of Assembly must first agree that the convention be adopted before the EFCC Act could be validly enacted. They want to argue that the EFCC Act, could not be applied to states that never approved of it and therefore pray that the Supreme Court should declare that any institution, such as the EFCC, should be regarded as an illegal body.

They also want: “A declaration that the Federal Government through the Nigerian Financial Intelligence Unit (NFIU) or any other agency lacks the power to issue any directive, guideline, advisory or any instrument howsoever called for the administration and management of funds belonging to a state.

A declaration that the EFCC, the NFIU, or any agency of the Federal Government cannot investigate, requisition documents, invite and or arrest anyone for offences arising from or touching on the administration and management of funds belonging to a state or any local government area.”

Some states are yet to join the suit while others may have considered it unnecessary. Adamawa State Governor, Ahmadu Fintiri, has kicked against the scrapping, saying it is not the right time to do so. He argued that rather than abolishing the anti-graft agency, it should be strengthened to work better in fighting corruption cases.

“For me, it is not the right time for us to kill the Economic (and) Financial Crimes Commission whether it has come wrongly or rightly. We need to strengthen it, we need to make it work better, we need to remove the politics within it that sometimes some people cry that they are being witch-hunted instead of going for the real issue.”

The suit was instituted by the Kogi State government and 15 other states. The 15 other states joined in the suit, marked: SC/CV/178/2023, are Ondo, Edo, Oyo, Ogun, Nassarawa, Kebbi, Katsina, Sokoto, Jigawa, Enugu, Benue, Anambra, Plateau, Cross-River and Niger.

Interestingly, the former Governor of Kogi State, Alhaji Yahaya Bello has the most controversial ongoing case with the EFCC. He has defied call summons and was declared wanted by the EFCC. He later showed up on the EFCC premises and the anti-graft agency did not arrest him making Nigerians marvel at the sincerity of the EFCC on the matter.

EFCC Laments Hindrances to Work
The Chairman of the Economic and Financial Crimes Commission, Olanipekun Olukoyede, has said that the Economic and Financial Crimes Commission (EFCC) cannot carry out investigations in 10 states in Nigeria due to court orders restraining it.

Olukoyede disclosed this at the 6th EFCC-NJI Capacity Building Workshop For Justices and Judges held at the Conference Hall of the National Judicial Institute in Abuja recently. The EFCC Chair described the workshop theme “Integrating Stakeholders in Curbing Economic and Financial Crimes,” as apt.

Although Olukoyede did not disclose the states involved, he, lamented that the EFCC’s activities have continued to be impeded by court orders restraining it from carrying out its investigation.

According to him, among the several issues bothering the EFCC are the frequent adjournment of high-profile cases by courts, contempt orders, and undue reliance on technical grounds. He further said a situation where suspects rush to court to obtain restraining orders against the EFCC from arresting them, must be discouraged by courts.

While acknowledging the infallibility of the EFCC, Olukoyede noted that the commission had taken steps to reform its investigation mechanism following the provisions of the law.

An Independent Opinion
Nigeria’s biggest governance problems are bad leadership and corruption. Despite its shortcomings, the EFCC has instilled fears in corrupt officials and helped to minimise brazen corruption. It has helped to recover trillions of Naira from corrupt officials including their ill-gotten properties. It has secured major convictions including persons holding executive positions. The courts have hampered its optimum performance through manipulation by corrupt persons, but the organisation’s advantages nevertheless outweigh its shortcomings.

Nigeria needs to seek ways to strengthen the EFCC Act through appropriate amendments to its law. If possible, have dedicated courts for EFCC cases to hasten the processes of trial. A wish to scrap the EFCC is ill-advised and ill-timed and could be interpreted as corruption fighting back. It will amount to throwing away the baby with the bath water.