allAfrica.com: Nigeria: Anti-Graft Agencies and AG (Page 1 of 2)

The President of the Nigerian Bar Association, Olisa Agbakoba Esq. (SAN) recently led a delegation of bar leaders to meet with the newly appointed Minister of Justice and Attorney-General of the Federation, Chief Michael Aandokaa (SAN). On that occasion, Mr. Agbakoba requested the Justice Minister to divest the Economic and Financial Crimes Commission (EFCC) of all prosecutorial powers. Apparently goaded by such "professional advice" and reported pressures from some vested interests, the Attorney-General requested President Umaru Musa Yar'Adua to direct the Economic and Financial Crimes Commission, Independent Corrupt Practices and Other Offence Commission and Code of Conduct Tribunal to obtain his written approval before the institution of any criminal case in Court.

The request was hastily granted and announced by government. Not unexpectedly, Mr. Agbakoba hurriedly commended the Yar'Adua regime for "clipping the wings of the EFCC"! Convinced that the position of the AGF and the NBA President did not reflect the correct state of the law I was compelled to draw the attention of the Federal Government to the case of the Federal Republic of Nigeria v. Osahon (2006) 24 WRN 1 where the Supreme Court had held that the police and other law enforcement agencies could prosecute without the consent or approval of the AGF. Chief Gani Fawehinmi (SAN) and a couple of other senior colleagues spoke along the same line.

As soon as it became clear that Government had been totally misled in the circumstances, it quickly reversed itself. Hence the AGF was compelled to assure the nation that the anti-graft agencies would no longer require his approval before initiating criminal proceedings in court provided that he could take over any of the cases at any stage of the proceedings. Notwithstanding the commendable decision of Government to withdraw the illegal directive in line with its avowed commitment to observe the tenets of the rule of law the NBA President has curiously continued to encourage the AGF to ignore the decision of the Supreme Court on the subject matter. Thus, in his interview published in THE GUARDIAN newspaper of Saturday, August 11, 2007 Mr. Agbakoba still asseverated as follows: "I have been handling cases and I have complained that the EFCC has no right to prosecute; it is the AGF. The directive simply sends the EFCC back to where it belongs. They are investigators; the police investigate and can also prosecute. But in criminal prosecution only one man can do so, and that is the AGF!"

The intervention of Mr. Olisa Agbakoba (SAN) in the on-going diversionary debate has flabbergasted me because both of us took part in the case of the Attorney-General of Ondo State v. Attorney-General of the Federation (2002) 27 WRN 1 where the Supreme Court recognised the power of the ICPC to prosecute corruption cases in any part of Nigeria without the approval of the AGF.

Before that case the Court of Appeal had interpreted Section 160 of the 1979 Constitution, (which is in pari materia with Section 174 of the 1999 Constitution) vis-a-vis the power of the Police to prosecute criminal cases without the consent of the Attorney-General. That was in the case of Olusemo v. C.O.P (1995) 11 NWLR (PT 575) 547 at 565.

In the case of Comptroller-General, Nigerian Prisons Service & Ors. v. Dr. Femi Adekanye & Ors.(2002) 15 NWLR (PT 790) 318 I was one of the Counsel who questioned the power of the Nigerian Deposit Insurance Corporation to authorise the late Mr. Fidelis Nwadialo (SAN) and Chief Emeka Ngige (SAN) to prosecute on its behalf. Even though the Court of Appeal upheld our submissions on the basis of the doctrine of delegatus nonprotest delegare the Supreme Court decided otherwise.

The controversy over whether the AGF has monopoly of prosecutorial powers under section 174 of the 1999 Constitution was finally settled by the Supreme Court in the case of the Federal Republic of Nigeria v. Osahon (supra) where Pats-Acholonu JSC (of blessed memory) had this to say:

"The implication of the intendment of section 174(1) of aforesaid of the Constitution is that the office of the Attorney-General does not have the monopoly of prosecution though it has the power to take over any case in any court and decide whether to go on with it or not... This equally implies or denotes that in appropriate cases such a legal practitioner coming under the description as contained in the Legal Practitioners Act, has the right of appearance which term includes prosecuting a case, and can due to the wide open door of section 174(1) initiate criminal prosecution on behalf of the agency he works for particularly as in this case an institutional body vested with power to check, prevent and investigate crimes and even to prosecute."

In order to call a dog a bad name to hang it the EFCC has been accused of acting ultra vires by usurping the powers of the AGF in collaborating with the Metropolitan Police to expose official corruption in Nigeria. It is doubtful if those who are behind this particular allegation have read the provisions of the EFCC Act. Otherwise their attention would have drawn to section 6(k) of the EFCC Act 2004 which provides that the Commission shall deal "with matters connected with extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving economic and financial crimes."

In making a case for the control of the anti-graft agencies by the AGF the NBA President has vehemently maintained that "the parastatals concerned with criminal justice system cannot be prosecuting at cross purposes. The AGF never said that all criminal prosecutions would emanate from his office. He simply underscored the need for proper co-ordination and supervision, that is all." (See Page A2 of SATURDAY PUNCH, August 18, 2007). With profound respect to the learned NBA President his position cannot be justified under the various laws establishing the anti-graft bodies. The issue of "proper co-ordination and supervision" in relation to economic and financial crimes has been addressed by Section 6(m) & (n) of the EFCC Act 2004 wherein it is provided that the EFCC shall be responsible for "taking charge of supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes" as well as "the co-ordination of all existing economic and financial crimes units in Nigeria."

web allafrica.com	Enter your search terms	Submit search form
OR subscribers use AllAfrica's premium search engine


Use our pull-down menus to find more stories

Today's Most Active Stories