EFCC, others vs Constitution; it’s about law, not politics

The Supreme Court has reserved judgment in the suit filed by 19 state governments (Plaintiffs) challenging the constitutionality of the laws establishing the Economic and Financial Crimes Commission (EFCC) and two other anti-corruption agencies.

The other two agencies are the Independent Corrupt Practices and Other Related Offences Commission (ICPC) and the Nigerian Financial Intelligence Unit (NFIU). The state governments are seeking judicial scrutiny on the processes that led to the enactment of the laws establishing such agencies.

Very clearly, it has to be stated that this is a matter of law, not politics. The fact that it is a case between the state governments and the Federal Government (represented by the Attorney General of the Federation) does not make it a political issue. It is strictly about the Constitution of the Federal Republic of Nigeria, as amended. Were the letters and the spirit of the Constitution obeyed in the course of enacting these laws? Was the sanctity of the nation’s grundnorm, the Constitution, desecrated in the process of making the EFCC Act and others? These are critical questions begging for answers.

The Plaintiffs argue that the EFCC Act was based on a United Nations Convention Against Corruption, UNCAC, hence as in all circumstances and matters, ought to be codified and adopted by the Houses of Assembly of the plaintiffs before it can become an enforceable law across the federation. The state governments premised their argument on the provisions of Section 12 of the 1999 Constitution (as amended).

They cite the decision of the Supreme Court in the case of Dr. Joseph Nwobike Vs Federal Republic of Nigeria, that the EFCC Act was based on a United Nations Convention. They further averred that the Act having not been ratified by states in line with Section 12 of the 1999 Constitution (as amended ) is an illegality.

Section 12 (1) of the Constitution says: “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.”

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Sub-section (2) states that “the National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty,” which in this case is the UNCAC, a treaty Nigeria ratified since 14 December 2004 from which the EFCC, ICPC and the NFIU Acts  were enacted at the whim of the Executive and the National Assembly without the concordance and ratification from the State assembles of the plaintiffs.

Subsection three(3) of section 12 states that “a bill of the National Assembly passed pursuant to the provisions of subsection (2) of the 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 position of the Plaintiffs in the suit is that the EFCC Act and others arose from the UN Convention, and being an item not named in the Exclusive Legislative List, ought to have enjoyed concordance and ratification of the State Assemblies as critical stakeholders (Federating units) in the Federation in line with provisions of Section 12 of the 1999 Constitution.

It bears reaffirming that the 1999 Constitution is very clear on the areas the National Assembly has exclusive preserve to make laws, the areas the State assemblies have exclusive reserve, as well as the areas both the National and State assemblies share legislative powers to make laws.

In the case of the disputed Acts, being rooted in UN Convention and treaty, Section 12 of the 1999 Constitution makes it mandatory for both the National Assembly and State assemblies to strike legislative harmony before such Acts can become laws enforceable throughout the Federation.

At the hearing of the suit on October 22, the intention of the plaintiffs was expressed by Mohammed Abdulwahab, SAN, who appeared for one of the plaintiffs. He told Justice Uwani Abba-Aji and the panel of Supreme Court Justices that “we are also challenging the foundation of those laws that created NFIU, EFCC, etc. in order not to create a constitutional crisis.”

Obviously, this case is not a matter of political expediency. It is about the law, to avert “constitutional crisis.”  It is about the protection of the Constitution. No aspect of the Constitution should be breached or abused on the altar of political exigency. The Constitution being the grundnorm (fons et origo), the source of all laws (including the EFCC, ICPC Acts) and authority in Nigeria’s collective jurisprudence, must be preserved and insulated from politics and political manipulations.  Nigeria’s democracy is still fragile to be subjected to any form of constitutional abuse.

We restate that this case should not be subjected to any form of political consideration. We strongly condemn any attempt by some vested interests to persuade some state governments to withdraw from the suit and any move to lobby the Supreme Court to go against the grain of law for the sake of political expediency.

Beyond the propriety of the law, the EFCC as currently constituted has come under intense public scrutiny, including earning a rebuke from international agencies for allowing itself to be used as a tool for political vendetta. Over the years, it has morphed from its core mandate of investigating financial crimes and prosecuting suspects to becoming a whip in the hands of any ruling government.

This, unfortunately, has subjected the fight against corruption to the mood of the President in power. This explains why EFCC has a rich history of selective justice. The end result is that persons who have grave corruption cases before the EFCC but are in the good books of the President in power are immune from prosecution. Some are not only exempted from prosecution, they get appointed into positions in government or elected as the case may be.

This cherry-picking formula in the prosecution of suspects negates the purpose for enacting the anti-graft laws. But we are encouraged by the words of the Chief Justice of Nigeria, Hon. Justice Kudirat Kekere-Ekun, who upon assumption of office pledged to stand by the independence of the judiciary. She promised to lead a Judiciary that would adhere to the principles of honesty, transparency and integrity. She made a solemn assurance that Supreme Court judgments would be free from external influence.

“This is a new dawn and a new era in the Nigerian Judiciary. I wish to assure my fellow Nigerian citizens that we are committed to working more diligently to improve public perception of the Nigerian Judiciary,” she declared. This should serve as a compass for the Supreme Court not to sway to the dictates of political mandarins and lobbyists.

In this suit, Nigerians are saying: Let justice be done though the heaven falls (Fīat iūstitia ruat cælum). The Supreme Court must show that it is truly supreme.