Should EFCC Be Stripped Of Its Prosecutorial Powers?, By Jiti Ogunye
In his maiden address at the just concluded Annual General Conference (AGC) of the Nigerian Bar Association (NBA), held in Port Harcourt, Rivers State, the newly elected and sworn in president of the NBA, Mr. Abdulkadir Mahmud, Senior Advocate of Nigeria (SAN), whose election is still being challenged in Court by a fellow SAN, Joe Kyari Gadzama, advocated that the Economic and Financial Crimes Commission (EFCC) be stripped of its prosecutorial powers.
This piece was written by Jiti Ogunye. The views and opinions expressed here are those of the author and do not necessarily reflect the official policy or position of 360Nobs.com.
The print and electronic media reported him as saying that the EFCC should be “reformed by limiting its role solely to investigation.” Under his envisioned “reform” EFCC’s mandate to prosecute will be handled by an independent, highly resourced prosecution agency. He was quoted as having stated, in elaboration, that:
“The critical institutions involved must be repositioned, re-equipped and re-tooled to confront the problem of corruption on a consistent and sustainable basis. As a start, we commend the efforts of the EFCC for the work it is doing and for its modest achievements. However, going forward, the NBA must demand the reform of the institution itself. We need to define its mandate more narrowly and more clearly. In my view, its broad objective as an investigative and prosecutorial agency should be reviewed. I recommend strongly that the EFCC be limited to investigation. The NBA anti-corruption committee would be mandated to develop clear recommendations toward enhancing the fight against corruption and improving the effectiveness of the agencies involved…. The NBA would advocate urgent reforms that would reposition the judiciary and make it play crucial roles…a clean, efficient and knowledgeable judiciary is a foundation for building an orderly, peaceful and prosperous society… The NBA, under my watch, will fight judicial corruption. We shall make the legal profession unattractive for corrupt lawyers.”
We disagree with the opinion of the NBA president calling for the prosecutorial power stripping of the EFCC. (“Prosecutorial power stripping”. Very interesting. Sounds like asset-stripping of an anti-corruption agency that does the work of asset-recovery). Such a move will castrate the EFCC and render it impotent. Instead of robbing EFCC of its power of prosecution, it is our view that the EFCC’s power of prosecution ought to be strengthened. From our observation, the capacity of EFCC’s legal unit, with respect to the numerical strength of its prosecutors, and the training and resource development of its law officers, ought to be enhanced.
Before stating our reasons for disagreeing with the NBA president, let us quickly treat a couple of preliminaries.
First, we do not regard the opinion expressed by the NBA president as the NBA’s position. It was the personal opinion of the NBA president. Here was an NBA president who did not campaign and run for election on the platform of stripping the EFCC of its power of prosecution. That was not in his manifesto. Thus, it cannot he plausibly argued that the NBA, by voting to elect him in the last association poll, had adopted his call for stripping the EFCC of its prosecutorial power, even before that call was publicly made.
The NBA president has just been sworn into office. Other members of his Executive Committee were sworn into their respective offices, just like him, at that AGC held in Port Harcourt, Rivers State. At the time he delivered his inaugural address, the Executive Committee of the NBA was yet to have its maiden or opening meeting. The National Executive Committee of the NBA was yet to meet to deliberate on and formulate policies for the NBA. Clearly, the position of the NBA president was not a resolution of any of the organs of the NBA, including the AGC. Even if the members of the newly constituted NBA Executive Committee had met before they were sworn into their respective offices to jointly draft and approve of the text of the inaugural address that was delivered by the president, they would not have done so as “NBA Officers” but as “NBA officers-elect”. Being officers-elect, they could not have crafted nor adopted a policy position for the NBA. Thus, at best, the inaugural speech of the NBA president was a personal opinion, which he used the occasion of his inauguration to push as his suggested idea for the consideration and possible adoption of the NBA. It is, therefore, our humble view that the NBA has not called for divesting EFCC of its prosecutorial power. It was only the NBA president that has made such a call. We shall see in the days ahead whether the other members of the NBA Executive Committee or the NEC of NBA will echo the solo suggestion of the NBA president.
Second, we recognise the right of the NBA president to deliver his inaugural address and recommend that EFCC be stripped of its prosecutorial power. He was exercising his right to the freedom of speech, a fundamental human right that is enshrined in the Constitution. No matter how disagreeable or objectionable his views may be, he cannot be condemned or crucified for expressing his views, even though the view he has expressed may attract condemnation. So, let us be clear. We are not condemning the NBA president for speaking, we only disagreeing with and condemning the speech he has made. This is why we take serious exception to the kneejerk reaction of the EFCC to the NBA president’s statement, in particular the description of lawyers as rogues or vultures. In the recent past, the EFCC has described some lawyers as “the facilitators and technical advisers of corrupt elements”. This may be considered fair in the circumstances. But carpet-labeling lawyers as rogues and vultures is undoubtedly offensive.
Third, the EFCC is an institution of the Nigerian State. It is part of the Executive Branch of Government, which is one of the three arms of government. Its actions can attract adulation just as its inactions can elicit rebuke from the citizenry. Its enabling law and its practice can be subjected to rigorous public debate and criticism. Its operations can, and should be, scrutinised not only by the government but also by civil society organisations and actors, in order to promote accountability, responsibility, efficiency and transparency in the EFCC.
The EFCC, under Section 4(8) and Section 6(6) (b) of the Constitution, is subject to the Courts’ power of judicial review. The EFCC Establishment Act, 2004 does not contain any clause ousting the supervisory jurisdiction of our courts of law. If it did, that would be a contravention of the provision of the said Section 4(8) and Section 6(6) (b) of the Constitution. Section 4(8) provides that “save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.” And Section 6(6)(b) states that “the judicial powers vested in accordance with the foregoing provisions of this section – shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”.
The EFCC, as demonstrated by the above-cited provisions of the Constitution, is not a body that is above the law. Suggestions can, therefore, be freely made to amend the law establishing it, or to modify its operations.
We give an example of one of the aspects of EFCC’s operations that requires modification. We have observed, with concern, that the EFCC, which, with its Chairman and Staff, is, by law, a hybrid agency, comprising personnel that is sourced from “government security or law enforcement agencies”, is fast being turned into another arm of the Nigeria Police Force. The bulk of its operatives in its investigation and operation unit is seconded or posted thereto from the Nigeria Police Force, with all the baggage that police officers in Nigeria are infamous for. This ought not to be allowed to continue.
By Section 2(1) (a-m) of the EFCC Establishment Act, 2004, the Commission consists of the following members: “(a) a Chairman who shall be the Chief Executive and Accounting Officer of the Commission, and be a serving or retired member of any government security or law enforcement agency not below the rank of an assistant commissioner of police or its equivalent; (b) the Governor of the Central Bank of Nigeria or his representative; (c) a representative each of the following Federal Ministries – 1. Foreign Affairs; 2. Finance; and 3. Justice; (d) the Chairman, National Drug Law Enforcement Agency or his representative; (e) the Director-General of – 1. the National Intelligence Agency or his representative; and 2. the Department of State Security Services or his representative; (f) the Registrar-General of the Corporate Affairs Commission or his representative; (g) the Director-General of Security and Exchange Commission or his representative; (h) the Managing Director, Nigeria Deposit Insurance Corporation or his representative; (i) the Commissioner for Insurance or his representative; (j) the Post-Master General of the Nigeria Postal Service or his representative; (k) the Chairman, Nigerian Communications Commission or his representative; (l) the Comptroller-General, Nigeria Customs Service or his representative; (m) the Comptroller-General, Nigeria Immigration Service or his representative; (n) the Inspector-General of Police or his representatives (0) four  eminent Nigerians with cognate experience in any of the following, that is, finance, banking, law or accounting; and (p) Secretary to the Commission, who shall be the head of administration.”
On the backgrounds from which the Staff of the Commission must be sourced, Section 8 (3 & 4) of the EFCC Act provides that “the Commission may, from time to time, appoint such other staff or second officers from government security or law enforcement agencies or such other private or public service, as it may deem necessary to assist the Commission in the performance of its functions, under this Act” and “the staff of the Commission appointed under subsection 3 of this section, shall be appointed upon such terms and conditions as the Commission may, after consultation with the Federal Civil Service Commission, determine.”
In spite of this “multidisciplinary” image of the EFCC, what is noticeable, thus far, is that it has been a police-led, and an inordinately police-staffed and populated agency. We will contend that the cases of corruption, ethical putrefaction and integrity failures that have bedeviled the agency, in the recent past, before the advent of the new committed leadership of the agency, have been police driven. No wonder the Magu leadership of the EFCC has publicly committed to internal self-cleansing of the agency.
Moving forward, the EFCC must return or be made to return to its original inter-agency identity and character. In order to achieve this objective, the EFCC must sustain and enhance the training and grooming of its own cadets and officers, untainted by the blemish of the “police disease”, as a deliberate strategy to, overtime, build a corps of well-trained, disciplined, dedicated, civil, human rights-observing and law-abiding economic and financial crimes investigators and intelligence experts that can rank amongst the very best in the world.
We now return to our reasons for disagreeing with the NBA President on his call for stripping the EFCC of its prosecutorial powers.
The first reason for opposing the call of the NBA President is that it derecognises the mixed character of the criminal prosecution community under the provisions of Constitution of the Federal Republic of Nigeria, 1999, as amended. The Constitution does not concentrate prosecutorial powers in the Office of the Attorney-General of the Federation (AGF) or the Attorney-General of any of the States. We refer to Sections 174 and 211 of the Constitution, which defines the power of AGF and AG of the States, respectively.
Section 106 of the Administration of Criminal Justice Act (ACJA), 2015 provides that “subject to the provisions of the Constitution relating to the powers of prosecution by the AGF, prosecution of all offences in any court of law shall be undertaken by (a) the AGF or a Law Officer in his Ministry or Department; (b) a legal practitioner authorised by the AGF; or (c) a legal practitioner authorised to prosecute by this Act or any other Act of the National Assembly.”
Also Section 348(1)( a-e) of the, 2015 provides that “trials shall be held in the High Court on information filed (a) by the AGF or a law officer in his Office; (b) by the AG of the State or a law officer in his office; (c) by a legal practitioner of any prosecuting agency: (d) by a private prosecutor; or (e) summarily in accordance with the provisions of this Act”.
The NBA president’s recommendation is that the prosecutorial power that will be taken away from the EFCC be handed over to a “an independent, highly resourced prosecution agency”. This suggestion, we dare say, was made tongue in cheek, and with the dagger under the cloak. This touted “highly resourced prosecution agency” is nothing but a disingenuous, water-testing reference to the Office of the AGF and the Directorate of Public Prosecutions. Shorn of the NBA president’s clever coinage, the only “prosecution agency” of the government in Nigeria, established by law, is the Office of the AGF and the Directorate of Public Prosecutions.
We are, thus, left to wonder whether the “highly resourced prosecution agency” being suggested by the NBA president is going to be a duplication of the Office of the AGF and the Directorate of Public Prosecutions, which, in its establishment and operation, will be parallel to the Office of the AGF and the Directorate of Public Prosecutions, independent of it or subordinate to it.
Section 174 (and Section 211 in relation to the AG of States) provides as follows:
174. (1) The Attorney-General of the Federation shall have power –
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
In F.R.N v Osahon, 2006, 5NWLR, Pt. 973, 361, the Supreme Court correctly, in our view, interpreted the provision of Section 174 ( 1) (b) of the Constitution to mean that other authorities and persons, including a police officer, have the right to institute criminal prosecutions in all courts in Nigeria. Thus, the EFCC (an agency which has, in its employment, lawyers who are qualified to practice and appear before all the courts in Nigeria under the Legal Practitioners Act, and who, doubly, are qualified as law officers, under the Federal High Court Act and the High Court Laws of the States in the Nigerian Federation, to practice in the courts), has the right, when so granted by the Legislature, to prosecute cases in the courts. Be it noted, however, that all EFCC’s criminal charges are instituted in the name of the “Federal Republic of Nigeria”, and under the assumed direction of the AGF.
The second reason why we are opposed to the call of the NBA president is that the Legislature knew what it was doing when it vested the EFCC with prosecutorial powers in addition to its investigation powers. It was a consciously donated statutory power of prosecution. The appropriateness of the prosecutorial power granted the EFCC must be assumed. In granting the EFCC this power, the law-giver states in Section 12 (1(a-e) of the EFCC Act that “for the effective conduct of the functions of the Commission, there may be established for the Commission the following units:- the General and Assets Investigation Unit; the Legal and Prosecution Unit; the Research Unit; the Administration Unit; and the Training Unit”. Section 13(2) of the EFCC Act then goes on to provide that “the Legal and Prosecution Unit shall be charged with responsibility for – (a) prosecuting offenders under this Act; (b) supporting the General and Assets Investigation Unit by providing the Unit with legal advice and assistance whenever it is required; (c) conducting such proceedings as may be necessary towards the recovery of any assets or property forfeited under this Act; and (d) performing such other legal duties as the Commission may refer to it from time to time.”
From the wordings of the provisions of Section 12 (1(a-e) and Section 13(2) of the EFCC Act, one can imagine that the intendment of the law-giver in giving the EFCC the powers of investigation and prosecution is to enable the EFCC, in its operations and the pursuit of its mandate, to function with co-ordination, departmental unison and speed, in order to achieve maximum results, especially given the dichotomy between the Police and the Office of the Director of Public Prosecution (Federal and States). In the criminal justice system, the processes of carrying out and concluding criminal investigation, forwarding original case files to the Office of the Director of Public Prosecutions in the Office of the Attorney-General, for legal advice, and making Investigative Police Officers and witnesses to attend courts for criminal trials are major challenges. These challenges, which occasion dysfunction in the criminal justice system, are alleviated when one law enforcement agency like the EFCC performs the dual roles of an investigator and a prosecutor. This fusion of roles will more likely curtail haphazard investigation of cases and promote successful criminal prosecutions.
The EFCC is not the only law enforcement agency in Nigeria that is vested with such combined powers or which plays such a dual role. Other law enforcement or regulatory agencies are vested with such powers. We give some examples below.
Section 23 of the Police Act, Cap. P19, Vol 13, LFN 2004 grants the Police the power of prosecution. It states that “subject to the provisions of Sections 174 and 211 of the Constitution of the Federal Republic of Nigeria, 1999 (which relate to the power of the AGF and of a State to institute and undertake, take over and continue or discontinue criminal proceedings, against any person before any court of law in Nigeria), any police officer may conduct in person all prosecutions before any court, whether or not the information or complain is laid in his name”. It is common knowledge that pursuant to this section, criminal charges are initiated in the name of the Commissioner of Police in Magistrates Courts and Area Courts all over the Country. This power extends to all courts of record, as decided by the Supreme Court of Nigeria in F.R.N v Osahon (supra).
Section 26 of the National Agency for Food and Drug Administration and Control (NAFDAC) Act, Cap N1, Vol. 10, LFN, 2004 vests NAFDAC with prosecutorial power by providing that subject to the provision of Section 174 of the Constitution, any officer of NAFDAC may, with the consent of the AGF, conduct criminal proceedings in respect of criminal offences under the Act, or regulations made under the Act.
Section 7 (a) of the National Drug Law Enforcement Agency (NDLEA) Act, Cap N30, Vol.10, LFN, 2004 establishes a prosecution unit for the NDLEA; and Section 8 (2) (a-d) of the Act states that “the Prosecution Unit shall be charged with responsibility for-(a) prosecuting offenders under this Act; (b) supporting the General and Assets Investigation Unit by providing the Unit with legal advice and assistance whenever it is required; (c) conducting such proceedings as may be necessary towards the recovery of any assets or property forfeited under this Act; and (d) performing such other legal duties as the Agency may refer to it from time to time”. Indeed, Section 13 (2) of the EFCC Act is lifted from Section 8 (2) (a-d) of the NDLEA Act, which was promulgated as a decree in 1989. The latter provision is ipsissima verba with the former.
Section 10 of the Corrupt Practices and Other Related Offences Act, Cap. C31, Vol 4, LFN, 2004 provides for the “general duties of the Commission to receive, investigate complaint and prosecute offenders” The Section states that upon investigation, the Commission, in appropriate cases, shall make “its recommendation for prosecution or otherwise to the office of the AGF or AG of the States”. While the ICPC prosecutes under the guidance of the AGF, it is the body that investigates and recommends prosecution, and its law officers or lawyers seconded to it by the Office of the AGF are the ones that handle its prosecution.
And finally, the Nigerian Deposit Insurance Corporation (NDIC) Act, Cap. N 102, Vol. 12, LFN, 2004 in Section 4 (m) grants the NDIC Board the power “to prosecute any officer or director who has committed any serious violation of the provisions of this Act.”
Given the fact that EFCC is not the only law enforcement or regulatory body that exercises prosecutorial powers in Nigeria, we are of the considered view that in the absence of any empirical data and glaring evidence of abuse of its power of prosecution, EFCC ought not to be stripped of this power, more so when the other law enforcement agencies are not being stripped of their prosecutorial powers.
It is, perhaps, necessary to point out that the prosecutorial power of the EFCC is not absolute. It is subject to the overriding and supervisory powers of the AGF. Under Section 43 of the EFCC Act, “the AGF may make rules or regulations with respect to the exercise of any of the duties, functions or powers of the Commission, under the Act”. And under Sections 104-108 of the ACJA, 2015, the AGF is vested with enormous powers over public prosecutions that may be instituted by the police or any other law enforcement agencies (EFCC inclusive). These powers include the issuance of legal advice or directives to the police or any other law enforcement agency in respect of any federal offence; requesting for the case file of any offence, a request which must be complied with; and discontinuance of any proceedings or withdrawal of any charge that may be instituted in, or pending in any court, pertaining to any federal offence. It, thus, can be seen that there are sufficient constitutional and statutory safeguards against abuse of the prosecutorial powers granted to the EFCC by the EFCC Act.
Indeed, we cannot but wonder why senior lawyers are fixated on and obsessed with the prosecutorial powers of the EFCC. We recall that as far back as 2007, under the Umaru Yar’Adua Administration, the NBA leadership of that time and some senior lawyers had instigated Mr. Michael Kaase Andoakaa, the then AGF and Minister of Justice, to issue a directive barring all anti-corruption agencies from prosecuting cases, without first securing the advice and clearance of the AGF. Unlike now when the call to strip the EFCC of its prosecutorial power is woven around the need to promote efficiency in the prosecution of anti-corruption cases, the pretext for the Andoakaa’s directive of 2007 was that EFCC was abusing its prosecutorial power. The real intention, however, was to use subterfuge to take over the prosecution of some high profile anti-corruption cases involving some corrupt politicians, and have those cases farmed out to senior lawyers who were the friends of those politicians. The lawyers would compromise the prosecutions of the cases, even while cynically deriving hefty professional fees from the Government for “prosecuting” those high profile anti-corruption cases. Mercifully, owing to general outcry against the rigid implementation of the directive, AGF Andoakaa was compelled to back down.
The third reason why we oppose the call for EFCC to be stripped of its prosecutorial power is that it is a short-sighted call. The call is not in the interest of the members of the NBA nor in the interest of justice. If the call for the abolition of the prosecutorial power of the EFCC is heeded, lawyers who work in the Legal and Prosecution Unit of the EFCC, who are members of the NBA being represented by the NBA president, will be thrown out of jobs. In a profession that is churning out almost two thousand and five hundred new lawyers out of the Nigerian Law School, every year, with many of them not being able to secure employment in the field of legal practice, this call is, to say the least, not well thought out. Rather than call for the scrapping of the Legal and Prosecution Unit of EFCC, the NBA President should have called for the enlargement and capacity building of such units or departments across the law-enforcement agencies and government institutions so that they could employ more lawyers, who will attain professional fulfillment, working in the field of law practice.
The fourth reason why we oppose the call for EFCC to be stripped of its prosecutorial powers is that no workable alternative is being proffered. A separate, independent prosecution agency is not a workable alternative. It will likely over-bureaucratise the prosecution process, create delay, create room for the possibility of interference and sale of legal advice, and occasion a regime of serial rejections of concluded investigations and of recommended prosecution, under the banner of dubious prosecutorial independence.
Between 2007 and 2011, the EFCC and its leadership, pandering to and buckling under the pressure of senior lawyers for briefs, engaged and retained the services of many lawyers outside the EFCC. It has not been established by data that the performance record of those external lawyers matched the performance record of the EFCC prosecutors in the years before the retention of those external lawyers. We are, thus, forced to ask whether this call to strip EFCC of its prosecutorial powers is goaded by a hunt for briefs for the club of senior lawyers, inspired by a conscious attempt to derail or truncate the prosecution of the anti-corruption cases, or borne out of debut-impulse to spew out inaugural incoherencies showcased as a brand new problem-solving agenda?
While knowledge, experience, expertise, and integrity are required in the prosecution of anti-corruption cases, especially high profile anti-corruption cases, we are of the considered view that law officers or lawyers working in the EFCC have demonstrated these qualities. With the guidance of external lawyers that are retained by the EFCC, and the compliment of the highly resourced lawyers in the High Profile Cases Prosecution Team, who are currently engaged by the AGF and the National Investigation and Prosecution Coordinating Committee established by him, the prosecution of anti-corruption cases will proceed smoothly.
This arrangement is working. There is no good reason to abandon it.
Jiti Ogunye, lawyer, public interest attorney, legal commentator, author, and essayist, is the Legal Adviser of Premium Times.
This piece was written by Jiti Ogunye. The views and opinions expressed here are those of the author and do not necessarily reflect the official policy or position of 360Nobs.com.
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