Battle for the existence of the Economic and Financial Crimes Commission continues to gain momentum; from a pending suit at the Supreme Court to a catalogue of letters from two senior constitutional lawyers to lawmakers at the National Assembly and open debates by other interested parties in the public space.

In two separate letters to members of the National Assembly, Dr. Olisa Agbakoba, SAN, and Mr. Femi Falana, SAN hold opposing views. Dr. Agbakoba argues that the establishment of the EFCC in 2003 was unconstitutional and should be scrapped, contending that the power under which EFCC was established was beyond the powers of the National Assembly. Countering his argument Mr. Falana contends that the establishment of the anti-corruption agency is not a breach of the principles of federalism.

Falana argues that “It cannot be rightly argued that an illegality has occurred by the failure of the constitution to adhere to the cardinal principles which are at best ideals to follow or guidance for an ideal situation.” He wrote a letter to the National Assembly in direct response to Agbakoba’s letter.

In his letter dated October 14, 2024, titled “Urgent Legislative Attention on Constitutional Reforms Relating to Law Enforcement Agencies and Anti-corruption Efforts”, Dr. Agbakoba states: “I write to draw attention to certain constitutional issues on matters related to law enforcement agencies”. The letter was addressed to Mr Benjamin Kalu, Deputy Speaker of the House of Representatives, who is also the Chairman of the House Committee on Constitution Review, and his counterpart in the Senate, Senator Jibrin.

He wrote: “As you are obviously aware, the fundamental objective of the government is to abolish corruption,” he said. But from my observation, there is no harmony amongst law enforcement agencies on corruption. They all appear to be working at cross purposes. “This has been confirmed by the Supreme Court in so many cases.

“The supreme court has consistently sanctioned the EFCC for its conduct and questioned if the EFCC can in fact validly do what it does. I will go further to say that I very strongly believe the EFCC is unconstitutionally established.

“The powers under which it was established go beyond the powers of the national assembly. The EFCC is an unlawful organisation.

“I am very delighted to note that many states have finally taken it upon themselves to challenge the constitutionality of the EFCC. This will put to rest the question relating to the validity of the EFCC.

“Whilst we await the decision of the Supreme Court as the final court on the matter, I respectfully request that the Senate convene a public hearing to consider these constitutional issues.

“Such a hearing would provide an invaluable platform for stakeholders to discuss the reforms needed to strengthen Nigeria’s legal and institutional frameworks for law enforcement and anti-corruption.

“This will meet the stated and laudable objective of the government to abolish corruption as stated in Section 13 of the Constitution.”

Falana’s Letter
In his counter argument, Mr. Falana wrote: “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.”

“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. “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 analyzing 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.”

“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.

“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,

Another lawyer and former member of the House of Representatives, Kayode Oladele has also faulted the position of the former President of the Nigerian Bar Association (NBA), Dr. Olisa Agbakoba (SAN) that the Economic and Financial Crimes Commission (EFCC) was an unlawful organization which he argued was unconstitutionally established.

Faulting Agbakoba, however, Oladele argued that his position was more of legal sophistry rather than legal substance. Quoting several appellate courts’ decisions and statutes, Oladele, the human rights activist, who once served as Chairman of the House of Representatives Committee on Financial Crimes (2015 to 2019), said Agbakoba’s view does not represent the correct position of the law on EFCC.

“With due respect, Mr. Agbakoba’s position is more of legal sophistry rather than legal substance. His position does not represent the correct position of the law as it runs contrary to the long-settled position of the law as handed down by the superior courts of law including the Apex Court in Nigeria. It is settled law that Nigeria operates co-operative federalism as opposed to dualist federalism and under co-operative federalism as practiced in Nigeria, some agencies are common agencies for both the Federal and State Governments,” he said.