What started as a routine exercise to expand the frontiers of constitutional governance and the boundaries of Nigeria's federal arrangement when an initial 16 states sought the intervention of the Supreme Court in interpreting the legality of the unilateral establishment in 2004 of the Economic and Financial Crimes Commission (EFCC) has taken a curious colouration with the federal government apparently arm-twisting states into abandoning the suit.
It is a strange development given that it is for reasons such as this that the apex court exists as the third arm of government.
In 2001, the federal government under Chief Olusegun Obasanjo had frustrated the efforts of the Lagos State government with Bola Ahmed Tinubu as governor to set up an Independent Power Project to wean the state from the epileptic national grid to generate and supply steady and reliable power to the country's economic capital.
The federal government unilaterally declared the venture illegal and alleged that the American company handling the project lacked the financial and technical capability to execute it. Abuja also insisted that the power so generated must be transferred to the national grid. It was a position driven entirely by personal ego and party politics rather than national interest. If the states had bonded together to challenge Abuja at the time, the sorry state of Nigeria's electricity infrastructure today would not have arisen.
After many states joined Kogi, the initial litigator, to challenge the legality of the process that birthed the EFCC, the prospect of the agency being declared illegal may have spurred the federal government to engage in arm-twisting tactics to abort the process. This will be the greatest disservice to the fight against corruption in government. Although the EFCC has a number of convictions to justify its establishment, its overall impact on the fight against graft is pathetic.
By law, the President is the sole determinant of who is fit to occupy the headship of the EFCC and other anti-corruption agencies. The appointed chairman, therefore, owes loyalty to the man that solely picked him. In effect, the EFCC chairman has to secure the clear and unambiguous approval of the President before he decides who to investigate or prosecute when politically exposed figures are involved. And when the President wants somebody or 'stubborn' state governor reined in, the chairman is in no position to resist the Presidential directive. Making states and persons of opposing political persuasion the targets for show of effectiveness in the anti-corruption war is antithetical to the objectives of the international convention that inspired the promulgation of the EFCC Establishment Law in 2004.
This is the main area of concern for state governors. The President's team, cronies and political associates are hardly ever called to account and in some cases when they are made to face the EFCC, the person merely gets a slap on the wrist and is let go. The process of recruitment confers too much control on the President, making the agency a tool at the disposal of Aso Rock. What the states are urging the Supreme Court to do is to establish if the processes that gave birth to the EFCC Act and others are in concordance with the provisions of the 1999 Constitution, as amended.
Noteworthy is the argument of the Attorney General of the Federation, Mr Lateef Fagbemi, SAN, before the learned Supreme Court justices. Mr. Fagbemi basically sought to blackmail the Supreme Court when he averred in his submission that: "The implication, your lordship, if you grant the relief sought by the plaintiffs, is that the public will perceive the Supreme Court as supporting corruption".
This is a deceptive strategy that harms the anti-corruption fight more than any other factor. The enormous powers in the Legislative List domiciled in Aso Rock is one of the fault lines in Nigeria's federal arrangement. The exclusive control of all the instruments of law enforcement in Abuja is contrary to the well-thought out arrangement meticulously negotiated by the founding founders in the numerous pre-Independence constitutional conferences. Abuja receives more than 52 percent of all federal allocations while states and local councils share majority of the balance. Leaving such tier unpoliced and not held to account in an independent and dispassionate manner is a carte blanche to unbridled corruption.
Progressing in error as recommended by Fagbemi eventually becomes retrogressive and counterproductive. The position of the states is from an informed knowledge. They know what happens in Abuja where most of the federal revenue is spent. When federal law enforcement agencies come for them in the states, leaving the bigger culprits unscathed, it affects the national psyche and cripples all pretences to nationhood, fairness and justice.
There are many imperfections and distortions in 1999 constitution and the process of review is tortuous that in some critical areas, the intervention of the learned justices offers a safer and expedient route to the review for the general good of the nation. The seven-man panel must resist the blackmail of the federal government to dismiss the suit of the states. At the end, Nigeria remains a federal entity where the states willingly transferred some of their powers to the centre to hold in trust. In effect, states which are subregional groups are not subservient to the centre. They do not exist at the pleasure of the centre. The extent the centre wields powers, rather, is at the pleasure of the states.
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Corruption and the battle against it is at the core of nationhood. Any country that is unable to evolve laws or agencies that will hold every agency or public office holder equally subject to the fundamental principles of accountability and fairness is doomed. It is incumbent on the Supreme Court to stand for Nigeria and national interest, not for the government in power.
For the 19 states, they must stand firm and resist the subtle arm-twisting tactics of Aso Rock to abort the suit. The remaining states should be doing the country immense favour if they rally round their peers and join the suit. At the end, it is not about the party in power, it is about building a progressive and development-oriented union.
When President Obasanjo frustrated then Governor Tinubu's vision of building an independent power plant, he may have thought he was punishing the government of an opposition party. He did it while PDP was in power. Today, the same Tinubu is president. We cannot walk the same path all over again.
The Supreme Court must arise and deliver justice shorn of sentiments.
Nomishan, policy analyst, writes from Abuja
