Femi Falana
21 August 2007
column
Lagos — 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."
A mere cursory examination of the relevant laws reveals that the anti-graft agencies are autonomous institutions. This is made abundantly clear under Section 3(14) of the ICPC Act where it is expressly stated that the Commission shall "not be subject to the direction or control of any other person or authority." Regrettably, those who insist that the EFCC is a parastatal in the Federal Ministry of Justice have continued to rely on section 5(k) of the repealed EFCC Act 2002 wherein the Commission was required to engage in the prosecution of all offences connected with or relating to economic and financial crimes "in consultation with the Attorney-General of the Federation." But that phrase (consultation with the Attorney-General of the Federation) was deleted in the EFCC Act 2004 in line with the decision of the Supreme Court that any agency clothed with prosecutorial powers can initiate criminal proceedings without any reference to the AGF.
As an independent institution the Commission is however required by Section 6(o) of the EFCC Act 2004 to maintain "a liaison with office of the Attorney-General of the Federation, all government security and law enforcement agencies and such other financial supervisory institutions in the eradication of economic and financial crimes." The power conferred on the AGF by Section 43 of the EFCC Act 2004 to make rules or regulations to aid the statutory functions of the Commission has not reduced the EFCC to the status of the National Drug Law Enforcement Agency to whom the AGF is empowered to give "general policy guidelines" by virtue of Section 9(1) of the NDLEA Act.
In order to ensure that the EFCC is not controlled by the executive arm of government the Commission is mandatorily required pursuant to Section 37 of the EFCC Act to submit to the National Assembly, a report of its activities not later than 30th September in each year. It would be recalled that the EFCC Chairman, Mr. Nuhu Ribadu, presented a report to the Senate last year on the investigation of state governments. As most of the PDP governors were indicted in the presentation President Olusegun Obasanjo publicly disowned the report. With the ongoing trial of some state governors and others that may be arraigned later the need for the independence of the anti-graft agencies cannot be overemphasised.
In the case of the Attorney-General of Abia State v. Attorney-General of the Federation (2007) 6 NWLR (PT 1029) 200 the Supreme Court stated, ex abundanti cautela, that the Attorney-General of the Federation cannot be held vicariously liable for the actions of the Economic and Financial Crimes Commission (EFCC).
No doubt, the AGF was perfectly in order when he stated that he could take over or discontinue any pending criminal case at any stage of the proceedings pursuant to the powers conferred by him by Section 174(3) of the 1999 Constitution. But it has been held in a plethora of cases that in exercising the powers to take over or discontinue any criminal case the AGF "shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process." Under the Olusegun Obasanjo regime the AGF took over the case of the President's cousin, Dr. Julius Makanjuola. Incidentally, it was Nuhu Ribadu Esq. who had filed the criminal charges in which the former Permanent Secretary was alleged to have embezzled N400 million. As all pressures mounted on the police prosecutor to compromise the case failed the office of the AGF took it over and messed it up. When Chief Kanu Agabi (SAN) the then AGF learnt that the case was going to be dismissed following the no case submission made by Dr. Makanjuola's counsel he filed a nolle prosequi with a view to starting the case de novo. Accordingly, the case was struck out. But all efforts to file fresh charges thereafter were unsuccessful as Dr. Makanjuola vamoosed and has since become a fugitive from the law!
While the anti-graft agencies and the office of the Attorney-General should work together in the prosecution of all indictable cases so as to end the culture of impunity that characterized the lawless tenure of President Olusegun Obasanjo ought to be made abundantly clear that the AGF has no supervisory control over the EFCC, ICPC and the Code of Conduct Tribunal.
Having regard to the authoritative pronouncement of the Supreme Court on the autonomy of the anti-graft agencies the duty of the progressive extraction of the civil society is to ensure that the institutions are composed of men and women of integrity who are not encumbered by political considerations in the discharge of their duties. Until very recently, all decent Nigerians were dissatisfied with the undue interference of the presidency in the work of all the anti-graft agencies. Instead of dissipating energies on their control or supervision by the AGF the decision of the Yar'Adua regime to allow the anti-graft agencies to operate without executive intrusion should be supported by all patriotic Nigerians. In the interim, the office of the AGF itself should be defended from the overbearing influence of those who are trying desperately to use it to frustrate the prosecution of those who have willfully inflicted eternal agony on our people.
- Falana is the President of West African Bar Association.
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