Mr. Steve Nwosu said it all in his ‘Frank Talk’ column about the crude tactics normally deployed by the Economic and Financial Crimes Commission (EFCC) when it comes to the issue of fighting the corruption war in Nigeria (Daily Sun, Wednesday, November 2, 2016). He reminded us that “…Several years ago, the EFCC even pulled down the gate to the home of one this country’s richest men, shot its way into his premises and literally took him out barefooted from his house.” Unfortunately, the situation of things appears to have gone worse today.
At the moment, the EFCC will invite a suspect, and once he/she sets foot in its office, it would rush to a magistrate to procure a remand order to keep its victim in detention for weeks or even months in the name of investigating corruption. This is in spite of the fact that the constitution of Nigeria insists that no security or anti-graft agency has the power to detain a suspect for more than two days (48 hours). Section 35(4) of the constitution says: “Any person, who is arrested or detained…shall be brought before a court of law within a reasonable time” and Section 35(5) of the same constitution says: “In subsection 4 of this section, the expression “a reasonable time” means (a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and (b) in any other case, a period of two days…”
Of course, emboldened by its unconstitutional and wayward manner of ‘fighting’ corruption, the EFCC, in spite of what the law that established it says, has taken it upon itself to question the executive powers of state governors in their management of public funds. This is in spite of the fact that the constitution mandates such an assignment to a State House of Assembly. Section 128(1)(bii) of the constitution says: “Subject to the provisions of this constitution, a House of Assembly shall have power…to direct or cause to be directed an inquiry or investigation into – the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for… disbursing or administering moneys appropriated or to be appropriated by such House”, and Section 128(2)(b) says: “The powers conferred on a House of Assembly under the provisions of this section are exercisable only for the purpose of enabling the House to – expose corruption, inefficiency or waste…in the disbursement or administration of funds appropriated by it”. In other words, the police or any other constitutionally-sanctioned anti-graft agency can only commence the criminal investigation of an ex-governor after the report of a state House of Assembly had indicted him/her for the mismanagement of public funds.
From the foregoing, it should be clear even to a citizen of below-average intelligence why, for instance, the Federal High Court, Asaba, quashed all the 163 charges the EFCC levied against the former governor of Delta State, Chief James Ibori. The Asaba court correctly acquitted Ibori because it is only a report from the Delta State House of Assembly that can be used to criminally investigate and prosecute him for the mismanagement of public funds, as a governor. The truth, unknown to many Nigerians, is that Ibori is in jail today for not reporting the movement of the funds that were used in the purchase of properties for him in the United Kingdom (UK), and not because he allegedly embezzled the public funds of Delta State. Similarly, the perpetual injunction, restraining the EFCC from arresting and prosecuting the former governor of Rivers State, Dr. Peter Odili, is in order because the EFCC unconstitutionally usurped the powers of the Rivers State House of Assembly when it arraigned him.
And it was for this unending and unconscionable harassment of ex-governors outside the purview of the constitution that informed my approaching the Federal High Court, Abuja, on May 28, 2010; five years before General Muhammadu Buhari (rtd.) became the President of Nigeria on May 29, 2015, to challenge the constitutionality of the EFCC. In a Suit No: FHC/ABJ/CS/386/10, I asked the courts to declare that the powers granted the EFCC in Sections 6, 7 and 8(5) of the EFCC (Establishment) Act 2004 breaches the provisions of Sections 80(3), 85(2), 88, 89, 120(3), 125(2), 128, 129 and 214 of the constitution of Nigeria. An application has just been submitted for a re-listing of the case after its abandonment (not struck out) in the last few years. In any case, even if I decide to file a new case against the EFCC, no sane mind can charge that I am being used by corruption to fight back because my initial case against the anti-graft agency was instituted in 2010 when nobody in Nigeria dreamt that Buhari would become the President of Nigeria.
As eloquently and convincingly argued in the piece, “Can EFCC Survive a Legal Challenge?”, a lawyer, Adaeze Udeze, insists that the days of the EFCC are numbered because once the courts declare the EFCC Act “a nullity, all the cases it is investigating and prosecuting will die a natural death”. Interestingly, the position being canvassed in my court case against the EFCC has the unflinching support of Prof. Ben Nwabueze, a widely-respected constitutional lawyer, who, in the wake of the arrest of some Justices/Judges by operatives of the Department of State Services (DSS), posited that “The Statutes of EFCC and DSS are largely unconstitutional”.
Mr. Nkemjika is the co-author of “Oil Exploration in Northern Nigeria: Problems and Prospects”. (Tel: 070-87541480)