Legal Nigeria

Dust over EFCC’s power to prosecute

On assumption of office on August 26, Nigerian Bar Association (NBA) President Abubakar Mahmoud (SAN) argued that the Economic and Financial Crimes Commission (EFCC) be stripped of its powers to prosecute, setting off a chain of reactions. He suggested the creation of a National Prosecuting Agency to take up that responsibility. EFCC, he added, should only investigate. The agency fired back, accusing Mahmoud of ulterior motives. Was his call off the mark? Eric Ikhilae asks.
Should the Economic and Financial Crimes Commission (EFCC) be divested of its prosecutorial powers? Nigerian Bar Association (NBA) President Abubakar Mahmoud (SAN) thinks it should.
To him, the agency should only investigate financial crimes; another well resourced agency should be vested with the powers to prosecute such offences. EFCC should not continue to handle both, he said.
Mahmoud made this call in his inaugural speech at the NBA Annual General Conference in Port Harcourt, Rivers State capital.
He said: “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 operations as an investigative and prosecutorial agency should be reviewed. I recommend strongly that the EFCC should be limited to investigation.
“The decision to prosecute and the conduct of prosecuting must be by an independent, highly- resourced prosecution agency.
“In addition, the EFCC and the prosecution agency must be secured from political interference in their activities. There is absolutely no reason for it to report operationally or otherwise to the Presidency.”
Observers, however, said Mahmoud did not provide a contextual foundation for his recommendations by mentioning instances of EFCC’s shortcomings or excesses that informed his position.
In his support, however, a former NBA President, Olisa Agbakoba (SAN), attempted to bridge this gap when he argued that the reform suggested by Mahmoud was to lighten EFCC’s burden.
Agabkoba said the commission would function more effectively if its workload was reduced to investigation alone.
In a statement by Agbakoba’s Human Rights Law Service (HURILAWs), he argued that the powers to prosecute should be vested in an independent and highly-resourced prosecuting agency, such as the proposed National Prosecuting Agency.
“The international best practice is that one agency investigates, another prosecutes and the court adjudicates. The EFCC as currently composed is overworked and will not efficiently deliver on investigation and prosecution.
“Whilst we have no objection with the EFCC investigating or the courts adjudicating, we believe the powers to prosecute should be vested in an independent, highly-resourced prosecuting agency.
“We appreciate the enormous work done by the EFCC since its establishment in 2003. Thirteen years on, the Federal Government needs to rejig the EFCC and other crime fighting institutions to perform optimally. We support the plan by the Attorney-General of the Federation (AGF) to establish a National Prosecuting Agency.”
Source of EFCC’s
prosecutorial powers
The EFCC, created in 2003, is mandated, under its Establishment Act 2004, “to combat financial and economic crimes… to prevent, investigate, prosecute and penalise economic and financial crimes, and is charged with the responsibility of enforcing the provisions of other laws and regulations relating to economic and financial crimes”.
Its power to prosecute is embedded in Section 6 of the Act, which stipulates the responsibilities and functions of the commission. Section 6(m) particularly provides the commission with the power of “taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offenses connected with or relating to economic and financial crimes”.
To enable it effectively carry out its prosecutorial duties, the Act, in Section 13(2), allows it to maintain a Legal and Prosecution Unit, which 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;
(d) Performing such other legal duties as the Commission may refer to it from time to time.
Beyond enforcing the provisions of the EFCC Act, the commission is also, under Section 7 (2) charged with the responsibility for enforcing the provisions of –
(a) the Money Laundering Act 2004; 2003 No.7 1995 N0. 13
(b) the Advance Fee Fraud and Other Fraud Related Offences Act 1995;
(c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended;
(d) The Banks and other Financial Institutions Act 1991, as amended; and
(e) Miscellaneous Offences Act
(f) Any other law or regulations relating to economic and financial crimes, including the Criminal code of penal code
Since Mahmoud made public his position, supported by one of his predecessors in office, many have continued to comment on the  plausibility or otherwise of divesting the EFCC of its prosecutorial powers.
Beyond the EFCC’s strong abhorrence for the proposal, as expressed in a statement by its spokesman, Wilson Uwujaren, to the effect that the NBA President was actuated by extraneous motives, many had argued as to whether or not Mahmoud’s suggestion was credible.
Some argued that in view of developments in recent past, where the pace of EFCC’s activities appeared dependent on the body language of the President, Mahmoud’s concerns were germane, particularly as regards the need to wean the EFCC off the direct control of the Presidency, making it independent and less amenable to political control.
Under President Olusegun Obasanjo, the Nuhu Ribadu-led EFCC was very visible, and seen going about its responsibilities with force. Although it was accused of serving as the President’s attack dog, majority of those arrested and prosecuted then turned out to be culprits of corrupt acts.
But, under the succeeding administrations of the late Musa Yar’Adua and Goodluck Jonathan, the fight against corruption took the back seat. The same EFCC became weakened, and, on some occasions, was said to be covering up some high-profile corruption cases.
However, the commission appears to have regained its zest. It has continued to perform its duties with an improved tempo. For the first time in the nation’s history, two Senior Advocates of Nigeria – Rickey Tarfa and Joseph Nwobike – are on trial for alleged corrupt practices. This is in addition to plans to equally deal with some judges found to be involved in such acts.
This renewed enthusiasm, on the part of the EFCC, to aid the Federal Government’s anti-corruption campaign, may have informed the scepticism expressed by many, who queried the intention of those seeking to wrest the power to prosecute from the agency.
Observers reasoned that if Mahmoud’s arguments were taken as altruistic, such reform should not be limited to the EFCC, particularly now when almost every segment of the country requires one modification or the other, with the renewed call for restructuring.
They contended that it might not be entirely right to limit prosecutorial powers to the Minister of Justice and Attorney-General of the Federation (AGF), where the office of the AGF is still an appendage of the Presidency.
Experiences in the recent past have shown how most AGFs have been partisan, taking side with the President, even against the interest of the state.
An instance was the case of former Attorney-General of the Federation Michael Aondoakaa (SAN) who once told Nigerians that they were not entitled to know the whereabouts of the then ailing President Yar’Adua, and that the President could rule from any part of the world. This was when the country needed a Chief Law Officer to provide legal direction and advise the Legislature appropriately.
Before now, there were calls for the separation of the offices of the Minister of Justice and the AGF to allow for some level of independence and a reduction in the influence the Presidency has on the AGF, whom they suggested must be a career civil servant.
The independence of the AGF, observers argued, must first be secured before a consideration of the proposal by the NBA President.
They contended that a better way to strengthen the EFCC and protect it from abuse by the President is its inclusion among bodies named under Section 158 (1) and (2) of the Constitution, which are “not be subject to the direction or control of any authority or persons.”
Mahmoud’s NBA, they argued, requires urgently reforms more than the EFCC, in view of increasing discontent among members about its relevance and succession process. Today, the loser of the association’s last presidential election, Joe Kyari Gadzama (SAN), is in court, challenging the electoral process.
Many lawyers are unhappy with the stamp regime introduced by the immediate past leadership under Augustine Alegeh (SAN), which they saw as mere revenue source, as against the initial intention of making it to serve as a means of identifying real lawyers.
The stamp has a life span. It is not transferable. A lawyer serving in someone else’s chambers cannot adopt his principal’s stamp when his own is exhausted. All this and many conditions are still being queried by members. To them, if the stamp was actually for identification, a lawyer needed to only acquire it once, preferably when being called to Bar, and that should last for life.
Lawyers’ views
Some lawyers, including Rotimi Jacobs, Dr. Mustapha  Abubakar,  Wahab Shittu and Malachy Ugwumadu, are of the view that Mahmoud’s proposal should be treated as his personal observation, which he is entitled to. They are of the view that rather than split heads over an individual’s opinion, efforts should be directed at how to ensure more prosecutions or expeditious delivery of justice.
They suggested that the government should be concerned with how to ensure that prosecutorial agencies, including the Police, Independent Corrupt Practices  and other related offences Commission (ICPC), Ministry of Justice, among others, are manned by skilled prosecutors and well remunerated advocates; while ensuring a court system with more facilitative procedural rules to hasten delivery of judgments, and populated by knowledgeable judges.
Jacobs said Mahmoud’s suggestion was within his right to express personal opinions just like every member of the society.
“Personally, I think the Economic and Financial Crimes Commission should be given more powers. It has done very well in the past years. Probably, that is why the attention is on it. Why are we not talking about the ICPC, which also prosecutes offenders?
“The powers of the EFCC to prosecute are expressly stated in the constitution. The same sections that give the Attorney-General of the Federation and Minister of Justice the powers to prosecute also give the EFCC the powers to prosecute. And it is not only the EFCC that has prosecutorial powers. The Nigeria Police Force, ICPC, National Drug Law Enforcement Agency (NDLEA) and the National Agency for Food and Drug Administration and Control (NAFDAC) are given similar powers.
“If you leave prosecution to only the Attorney-General of the Federation and Minister of Justice, it would be burdensome. It was based on this that the EFCC and other agencies were given the same powers. This is good for the country.
“If you look at the statistics, you would observe that the EFCC has recorded the highest number of convictions in the country. How do you then ask the government to reduce the powers of such a commission? The powers it enjoys are constitutional.
“Besides, it has done very well. When a child is doing well, you do not discourage him. Rather, you encourage him to do better. I would rather suggest that the EFCC’s powers should be strengthened,” Jacobs said.
Abubakar said rather than take away EFCC’s powers to prosecute, it should be complemented by a restructured ICPC, which was created three years before the EFCC, yet is hardly heard of.
“The ICPC currently performs some functions that overlap the EFCC’s operations. For instance, ICPC says it is empowered to deal with cases of bribery, but in practice, it is hardly possible to distinguish bribery from financial crimes, which the EFCC is empowered to investigate and prosecute.  There should be a clearer distinction between crimes and practices that are handled by both agencies.
“I am not sure that those advocating the removal of EFCC’s prosecutorial powers have supported their position with facts that the EFCC’s duty of investigating suspects encumbers the execution of its powers to prosecute.
“The EFCC, as currently constituted, has various units, including the Legal and Prosecution Unit, which performs various functions, including prosecution. They only need to be well equipped to function effectively,” Abubakar said.
Shittu said though he respected Mahmoud as a person, he disagreed with his call, wondering if he was not properly advised.
“I am sure that he would change his position if he has access to information on the sterling performance of the anti-graft agency. The EFCC has secured more convictions than all the ministries of justice in the country put together. That included the Federal Ministry of Justice. You can confirm that from records.
“Why should the NBA president single out the EFCC when many other agencies, including the Nigeria Customs Service, the Nigeria Police Force and several others have prosecutorial powers? Based on its performance, the EFCC needs to be strengthened.
“Its prosecutorial and investigation powers should be strengthened. Its capacity should also be boosted so that it could perform much more than it is currently doing,” Shittu said.
Ugwumadu argued that rather than weaken the EFCC, which many, including the NBA president, acknowledged as having recorded some achievements in recent time, the NBA should think of how to raise a team to supplement the legal department of the EFCC.
“Looking at Mahmoud as a person, I have no doubt that he may have meant well with his utterances, but I strongly disagree with him that the statutory powers of the commission should be severed. This is not healthy at all in the present circumstance.
“Why is EFCC prosecutorial powers of importance to the NBA? We have challenges with judges giving perpetual injunctions against the EFCC. What has NBA done in respect thereof?” Ugwumadu said.