The Wednesday, 23rd October 2024 suspension of the Attorney General and Commissioner for Justice and Public Order of Benue State, Fidelis Mynin is the latest in the twists relating to the suit before the Supreme Court of Nigeria challenging the legality of the Economic and Financial Crimes Commission (EFCC) and other related bodies.
The Apex Court had on Tuesday ,22nd October, 2024, reserved judgment on the suit originally filed by 19 states of the federation and said it will communicate a date for judgment to all parties.
The following day, Benue State Governor, Hyacinth Alia, suspended the commissioner for joining the suit against the Federal Government.
To critics, the Governor did not act independently and the Commissioner may simply be a fall guy. The latest casualty of what some of them described as the arm-twisting tactics by some forces close to the Federal Government.
It should be noted that before the capitulation by Benue State, three out of the states challenging the constitutionality of the laws that established EFCC and the other anti-graft bodies have also withdrawn from the suit in curious circumstances.
The three states ; Anambra (9th plaintiff), Adamawa (16th plaintiff), and Ebonyi (18th plaintiff) separately submitted applications for withdrawal before the Court.
The Attorney General of Anambra State, Professor Sylvia Ifemeje, informed the court that she wished to withdraw from the suit, having filed a motion for withdrawal on October 20.
Similarly, the Attorney General of Ebonyi State, Ikenna Nwidagu, stated, “My Lord, I filed a notice of withdrawal dated and filed on October 21. My Lords, we pray this honourable Court strikes out the name of the 18th plaintiff.”
Two other states- Nasarawa and Ogun-which remain parties to the suit, have also said they are only contesting the NFIU cash withdrawal limit guidelines and not the legality of the EFCC.
The Nigeria Financial Intelligence Unit (NFIU), an agency of the Federal Government, in the mould of the EFCC, stipulated in the cash withdrawal limit guideline that “cash withdrawal of above N5m by individuals or N10m by corporate body from public accounts belonging to the state government and/or local government councils amounts to contravention of the Money Laundering Act and same is punishable under said Act.”
CRUX OF THE SUIT BY THE STATES AGAINST THE ATTORNEY GENERAL OF THE FEDERATION
Plaintiffs in the Suit Number SC/178/2023 were originally 19- Kogi, Kebbi, Katsina, Sokoto, Jigawa, Enugu, Oyo, Benue, Anambra, Plateau, Cross-River, Ondo, Niger, Edo, Bauchi, Adamawa, Taraba, Ebonyi, Imo, Nasarawa and Ogun State Governments.
Their contention is that the Federal Government cannot under any guise control funds appropriated by Houses of Assembly of the Plaintiffs.
The Plaintiffs are also contesting the Constitutionality of the EFCC Act, in the light of the decision of the Supreme Court in the case of Nwobike V. Federal Republic of Nigeria, that the EFCC Act was based on a United Nations Convention against corruption, same having not been ratified in line with Section 12 of the 1999 Constitution ( as amended ).
The Plaintiffs are therefore asking the Supreme Court to nullify the EFCC, ICPC, NFIU and Proceeds of Crime Act, all rooted in United Nations Convention and protocol, having not been ratified by the Houses of Assembly of the Plaintiffs in line with Section 12 of the 1999 Constitution.
Their position is hinged on Section 12 (1) of the Constitution that: “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.
“(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Executive Legislative List for the purpose of implementing a treaty.
“(3) A Bill for an Act of the National Assembly passed pursuant to 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.
For instance, the Supreme Court found as a fact in the case of Nwobike V. Federal Republic of Nigeria that the EFCC Act is a product of the United Nations Convention against corruption.
Thus the position of the Plaintiffs in the suit is that the EFCC Act arising from the UN Convention, being an item not contained in the exclusive legislative list, recourse should have been had to States as stakeholders in the Federation in line with Section 12 of the 1999 Constitution.
They said the 1999 Constitution is also very clear on the areas the National Assembly has exclusive preserve to make laws, the areas the States have and the areas both the National and State assemblies share legislative powers.The Acts in dispute, being rooted in UN Convention and protocol do not fall on any of those categories, as a result of which compliance with Section 12 of the 1999 Constitution was a mandatory requirement. Failure to comply with Section 12 of the Constitution before the enactment of the acts was fatal.
PRELIMINARY OBJECTION BY THE FEDERAL GOVERNMENT
However, in its preliminary objection dated October 17, 2024 and filed by the Attorney General of the Federation (AGF) and Minister of Justice, Chief Lateef Fagbemi, through a team of lawyers led by the Director of Civil Appeals, Ministry of Justice, T.A. Gazali, SAN, the Federal Government urged the Supreme Court to dismiss the suit filed by 19 state governments challenging the constitutionality of the laws establishing anti-corruption agencies in the country, arguing that the apex court lacked jurisdiction to entertain the suit.
The AGF went further to state that “the plaintiffs were aggrieved by the action of the Federal Government, through its agencies like EFCC, Independent Corrupt Practice, and other related offences Commission, NFIU.”
Significantly, the legal team of the defendant to the suit, the AGF, did not deny that the Acts were rooted in the United Nations Convention but they argued that the concurrence of States of the Federation as stakeholders was not necessary for the validity of the Acts. By this, they meant that compliance with Section 12 of the 1999 Constitution was not necessary for the validity of the Acts. This is a strange argument.
The defendants also curiously implied that the findings of the Supreme Court in Nwobike V. Federal Republic of Nigeria that the UN Convention gave birth to the Acts was not relevant.
VOICES IN SUPPORT OF THE PLAINTIFFS
Well known Senior Advocate of Nigeria (SAN) and former President of Civil Liberties Organisation (CLO), Chief Olisa Agbakoba agrees with the Plaintiffs that the legal status of the EFCC is questionable.
In two separate letters to the Senate and House of Representatives, dated October 14, 2024, Agbakoba said:“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.”
His letters were addressed separately to the chairpersons of the respective Committees on the Review of the 1999 Constitution in the National Assembly: Deputy Senate President Barau Jibrin and Deputy Speaker of the House of Representatives Benjamin Kalu.
Agbakoba expressed pleasure that some states of the federation have indicated their readiness to contest the constitutionality of the anti-graft agency, saying, “This will put to rest the question relating to the validity of the EFCC.”
The letter to the Deputy Senate President, titled “Urgent Legislative Attention on Constitutional Reforms Relating to Law Enforcement Agencies and Anti-Corruption Efforts,” reads: “I commend you for the remarkable leadership you have demonstrated as Chairman of the Senate Committee on Constitution Review, particularly in advancing the government’s reform agenda through a robust constitutional framework. Your efforts to strengthen the legal infrastructure underpinning the nation’s development programmes are indeed commendable.
“I write to draw attention to certain constitutional issues related to law enforcement agencies. As you are obviously aware, the fundamental objective of the government is to abolish corruption. However, from my observation, there is no harmony among law enforcement agencies on this issue. They all appear to be working at cross purposes.
“This has been confirmed by the Supreme Court in numerous cases. The Supreme Court has consistently sanctioned the EFCC for its conduct and questioned whether the EFCC can, in fact, validly perform its functions. I will go further to state 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 pleased 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 its validity. While we await the decision of the Supreme Court as the final arbiter 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, thereby meeting the stated and laudable objective of the government to abolish corruption, as outlined in Section 13 of the Constitution.
“I trust that, under your capable leadership, the Senate Constitution Review Committee will give these matters urgent attention in the interest of our nation’s development.
“Thank you for your consideration of this important matter. I look forward to your response.”
On its part, the Society for Rule of Law in Nigeria (SRLN) has raised concern over the approach of the Federal Government to the suit filed by the states.
The group in a statement by its coordinator, Dr Chima Ubeku, said it was strange that the Federal Government was employing sentiments and at the same time trying to bully the states.
It said; “Nigeria is a Federation established by the Constitution, which gave distinctive functions to the federating units and the federation is not one in which the federal government, which is just one of the federating units can act like the godfather and the other federating units as its godchildren.
“Most importantly, institutions fighting corruption in Nigeria should be built on the foundation of the law, not sentiments and emotions. More so that the greatest corruption is disobedience to the constitution of the country by establishing anti-corruption agencies without total compliance with the constitution.
“Therefore, instead of trying to present the states that are plaintiffs in the suit as haters of the anti-corruption agencies, the Federal Government should be concerned with its primary duty of protecting the constitution of the country.
“The 1999 Constitution is very clear on the areas the National Assembly has exclusive preserve to make laws, the areas the states have and the areas both the National and state Assemblies share legislative powers.
“It is a fact that the Acts in dispute, being rooted in United Nations Convention and protocol, do not fall on any of those categories, as a result of which compliance with Section 12 of the 1999 Constitution was a mandatory requirement.
“In the initial defense to the suit, the AGF did not deny that the Acts were rooted in the United Nations Convention; he only said that the concurrence of states of the Federation as stakeholders was not necessary for the validity of the Acts. Implication of this is that compliance with Section 12 of the 1999 Constitution was not necessary for the validity of the Acts.
“It is our opinion that the Supreme Court should be allowed to adjudicate on this suit, without the plaintiffs being branded haters of the Federal Government’s anti-corruption agencies.
“Also, rather than trying to sustain the obvious illegality of the establishment of the agencies, the Federal Government should rather correct the errors and get them properly established in accordance with the constitution.”
NEED FOR NASS TO STEP IN
While the nation awaits the decision of the Supreme Court, the National Assembly should take the bull by the horns and conduct a Public hearing on the legality of the EFCC as requested by Olisa Agbakoba SAN in his letters.
