For some time now, the media had become inundated with the news of allegations of financial improprieties or abuse of office by the erstwhile Chairman of the Economic Financial Crimes Commission (EFCC) Mr. Ibrahim Magu. It is not in doubt that these allegations become so rife that the Attorney General of the Federation who was/is the purveyor of the whole plot that degenerated into confusion or problems at the EFCC, was alleged to have manipulated the willing and otiose presidency, to set up a façade panel of enquiry to inquire into the affairs of the corruption fighting agency, with a view to unravelling the alleged abuses in the management of the Commission.
Although, Mr Abubakar Malami SAN, who is the current Attorney General of the Federation (AGF) and Minister of Justice, is believed to have a lot of questions to answer because he was seen as the catalyst to the whole mess in the EFCC, one could not fathom the reasons for his non-inclusion amongst those to answer questions on the alleged misappropriation and mismanagement in the agency. Before going further in this discourse, I will like to borrow a cue from Albert Einstein that “The world will not be destroyed by those who do evil, but by those who watch them without doing anything”. And according to Edward Snowden, “there can be no faith in government if our highest offices are excused from scrutiny- they should be setting the example of transparency. “To this end, having confirmed through media reports that the Report of the Justice Ayo Isa Salami Panel is being reviewed by the Presidency, it is necessary to draw the attention of the Federal Government to the legal status of the EFCC so that the baby is not thrown away with the bathwater. In other words, the investigation of the allegations of corruption levelled against the suspended Acting Chairman of the EFCC, Mr. Ibrahim Magu by the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami SAN, must not be used by the forces of corruption to destroy the anti-graft agency for political objectives, because the AGF is a necessary party in the whole saga.
INVESTIGATION OF MR. IBRAHIM MAGU
Even though I fully agree with President Muhammadu Buhari when he said that it is in the interest of Mr. Ibrahim Magu to have the allegations of corruption levelled against him to be fully investigated, and that the reorganisation of the EFCC must be in strict compliance with the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 and the Economic and Financial Crimes Commission Establishment Act, 2004. I submit that, these objectives cannot be achieved if the EFCC is eventually placed under the control of the Ministry of Justice or any other Ministry, whatsoever. In contributing to the public debate on the reorganisation of the EFCC, I will like to review the legal implications of the investigation of Mr. Magu, the suspension of the Secretary of the EFCC and 11 staff of the EFCC and the legal nexus between the EFCC and the office of the Attorney General of the Federation (AGF). The analysis will focus on the relevant provisions of extant laws and decided cases which have defined the powers of the EFCC with respect to the arrest, investigation, prosecution and disposal of confiscated assets of persons convicted for economic crimes by the courts.
Since the Investigation Panel headed by the Honourable Justice Ayo Isa Salami (retd) was a quasi- judicial body, it was required to observe the basic tenets of natural justice. The fact that the Panel sat for weeks and took evidence of some witnesses behind Mr. Magu runs contrary to the tenets of fair hearing as laid down in Yesufu Amuda Garba v University of Maiduguri (1986) 1 NWLR (Pt 18) 550 at 618, where Oputa JSC (of blessed memory) opined that: “to constitute a fair hearing, whether it be before the regular Courts or before Tribunals and Boards of Inquiry, the person accused should know what is alleged against him; he should be present when any evidence against him is tendered; and he should be given a fair opportunity to correct or contradict such evidence. How else is this to be done, if it be not by cross-examination.”
It is public knowledge that the Justice Ayo Salami Panel was set up to investigate the allegations of corruption levelled against Mr. Magu by the AGF. But the AGF was not summoned to prove the allegations before the Panel. This prompted Mr. Magu to request the Panel to summon the AGF to prove the allegations. After some reluctance, the Panel issued a subpoena on the AGF to testify at the Panel, but the AGF, blatantly ignored the summons. In the absence of the vital evidence of the AGF the Panel decided to listen to suspects charged with serious economic and financial crimes by the EFCC under the leadership of Mr. Magu. Of course no sooth sayer is needed before one would know that such witnesses have an axe to grind with Magu and therefore, their evidence will, most likely, be tainted. Expectedly, the witnesses were reported to have given evidence against Mr. Magu. Although, the law is trite that evidence which ought to be given but is not given will be presumed to be against the person who refused to give such evidence if given. See Section 169 of the Evidence Act, 2011. Thus, one will be surprised if the panel refused to say anything in respect of the inexplicable refusal of the AGF to honour the summons of the panel, without any rhyme or reason.
MANAGEMENT AND DISPOSAL OF CONFISCATED ASSETS
The agencies of the Federal Government authorized by several laws to confiscate assets of criminal suspects or other proceeds of crimes includes the Assets Management Corporation of Nigeria, Nigeria Police Force, Independent Corrupt Practices and Other Related Offences Commission, Economic and Financial Crimes Commission, Nigeria Customs Service, National Agency for the Prohibition of Trafficking on Persons, National Agency for Food and Drug Administration Control and Federal Road Safety Commission.
Thus, the disposal of such assets shall be carried out pursuant to final orders of forfeiture made by High Courts and the Code of Conduct Tribunal as the case may be. In order to co-ordinate the disposal of confiscated assets by the various agencies, the Executive submitted the Proceed of Crime Bill to the National Assembly. Instead of ensuring an expeditious passage of the bill, the AGF decided to ‘enact’ the Asset Tracing, Recovery and Management Regulations 2019 empowering his office to take over “the overall custody and management of Final Forfeited Assets”. According to the Regulations, the office of the AGF, in collaboration with the office of the Minister of Finance “shall negotiate not less than 30% of any fund recovered on behalf of other tiers of government as administrative charges to the Government of Nigeria”. With respect, this provision is inconsistent with Section 162 of the 1999 Constitution which stipulates that all monies due government of the Federation shall be paid into a special account called Federation Account, and recovered loot belonging to the federal, state and local governments shall be paid to them without any unauthorized deduction.
Also, since the various laws on forfeiture of assets have not been amended by the National Assembly, the Regulations are completely illegal. It is trite law that Regulations or Guidelines cannot amend principal statutes. In NNPC V. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148 at 195, the Supreme Court held that “It is the principal law that provides subsidiary legislation the source of its existence. Without Principal Law, there can be no subsidiary legislation, and so subsidiary legislation must conform with the principal law. The Petroleum Act is principal law, a statute and where it prescribes a particular method of exercising statutory power, the procedure so laid down must be followed without any deviation, whatsoever. Also, in Adesanoye v. Adewole (2006) 14 NWLR (Pt. 1000) 242 at 269, the Supreme Court held that, where the procedure prescribed by statute is not complied with, the consequences of non-compliance follows, notwithstanding that the statute does not specifically provide for a sanction. The court in its interpretative jurisdiction can come to the conclusion that failure to comply, is against the party in default. Therefore, it is suggested that the illegal Regulations be withdrawn forthwith while the National Assembly should be prevailed upon to pass the POCA Bill”.
No doubt, the AGF is required to make Rules and Regulations for the disposal of confiscated assets from suspects prosecuted by the EFCC. But the essence of the provision is to ensure that the powers vested in the Secretary of the EFCC to dispose of assets are not abused. The provision has not conferred powers on the AGF to appoint agents to sell confiscated assets. It is interesting to note that other agencies empowered to sell confiscated assets have ignored the illegal Regulations. The AGF recently appointed a defendant standing trial in a pending case of economic crime to sell certain confiscated assets. Thereafter, the office of the AGF has since taken over the sale of the assets via a Committee headed by the Solicitor-General of the Federation. I submit that unless the EFCC Act is amended to confer powers on the AGF to sell confiscated assets, the actions of the Asset Disposal Committee which is a brain child of the AGF are likely to be set aside if challenged in a court of law.
In endorsing civil forfeiture procedure adopted by the EFCC in several cases, the Supreme Court has held that it is an action in rem as opposed to the confiscation of assets which have been frozen and that it is embarked upon when the interest of the State is merely to recover the proceeds of unlawful activity. While interpreting the provisions of the EFCC Act, Advance Fee Fraud and Money Laundering Act which empower the EFCC to confiscate and dispose of assets, the apex court stated that the interim forfeiture order made by the High Court can become final if the party interested in the property sought to be forfeited fails to appear before the Court to show cause within 14 days why the final order of forfeiture of the monetary properties should not be made in favour of the Federal Government of Nigeria.
SUSPENSION OF EFCC STAFF
Another error committed by the Salami panel was the indefinite suspension of 11 (Eleven) EFCC staff which suspension was based on the recommendation of the Salami Panel. The suspended staffers were placed on suspension pending the investigation of Mr. Magu. In the course of carrying out the investigation of Mr. Magu by the Justice Ayo Salami, the suspended officials were not accused of committing any criminal offence or misconduct by the AGF. It is trite law that a Public Officer who is neither standing criminal trial nor under investigation cannot be interdicted or suspended from the Public Service. Since the appointment of the 11 (Eleven) staff enjoys statutory flavour, their suspension or removal from office ought to have been carried out pursuant to section 8 of the EFCC Act.
Regrettably, the attention of the President was drawn to the provisions of Section 8 of the EFCC Act, but he rebuffed same. In Longe v First Bank (2006) 3 NWLR (Pt. 967) 228 at 266 the Court of Appeal, per Ayo Salami JCA (as he then was) held inter alia: “The word suspension means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling, either for a fixed or terminal period or indefinitely.” But surprisingly and in a funny twist, a Panel headed by Justice Salami requested for the suspension of 11 (Eleven) staff who were not under any investigation and thereby exposed the Buhari administration to embarrassment. Even the Secretary of the Commission, Mr. Ola Olukayode whose nomination was made by the President and confirmed by the Senate is included in the list of those placed on indefinite suspension. Since the staff were not probed under the law, they should be recalled and reinstated as soon as possible.
STATUTORY CONTROL OF EFCC
By virtue of Section 2 of the EFCC Establishment Act, the EFCC shall be supervised by a 25-member Board constituted by the President. For undisclosed reasons, the Board has not been reconstituted for the past 6 years of president Buhari’s administration, yet the government of the day prides itself as a fighter of corruption. I think the opposite is the case because from the look of things, this administration seems to condone corruption more than ever before, so much so that the corruption record of this administration may surpass all the past administrations because the president is too weak and lack political will to take decisions on vital issues and this has made it possible for some unscrupulous elements called cabal, to hijack the government. If the Board had been in place, the allegations levelled against Mr. Magu by the AGF who is an interested party, would have been addressed. Apart from the Board, the other accountability mechanism put in place by law is the National Assembly. Under Section 37 of the EFCC Act, the EFCC shall submit its annual report to both Chambers of the National Assembly not later than September 30 of every year. I confirmed that the reports are submitted but the National Assembly does not consider them!
LEGAL NEXUS BETWEEN EFCC AND AGF
The EFCC is empowered to arrest, investigate and prosecute cases of economic crimes while the AGF has the power to take over any pending case instituted by the EFCC. In Saraki v FRN (2016) 3 NWLR (Pt 1500) 531, Kekere-Ekun JSC, held that “Section 174 (1) (b) & (c) of (the Constitution) which refers to proceedings initiated by ‘any other authority or persons’, is a clear indication that the power of the Attorney General to institute criminal proceedings is not exclusive to him.” But the power to take over pending corruption cases being prosecuted in the courts by the Commission cannot, by any stretch of imagination, be interpreted to empower the Attorney-General to take over the files of cases that are being INVESTIGATED (as opposed to ongoing trial) by the anti-graft body.
As far as the law is concerned, the EFCC is empowered to coordinate the enforcement of federal and state laws on economic crimes. In Shema v. F.R.N (2018) 1 S.C (Pt. 1) 1 at 38 – 39, Bada JSC held that: “The effect of our clear and unambiguous stance in Nyame v. FRN (Supra) and which we have no reason to depart from is that the Economic and Financial Crimes Commission (the EFCC) is the coordinating agency for the enforcement of the provisions of any other law or regulation on economic and financial crimes, including the Criminal Code and Penal Code. The Commission has power under Section 13 (2) of the Act to prosecute offences so long as they are Financial Crimes”.
It is, therefore, submitted that the EFCC is independent of the office of the AGF with respect to the coordination of the enforcement of federal and state laws on economic crimes. In order to appreciate the point that I am struggling to make here, it is necessary to refer to Section 10 of the National Drug Law Enforcement Agency Act which provides that the Attorney-General of the Federation is empowered to give general or specific directives relating generally to a particular matter or case and it shall be the duty of the Agency to comply with any guidelines or any directive given by the Attorney-General of the Federation, although, there is no equivalent provision in the EFCC Act. To that extent, it is safe to submit that there is no provision in any law which has made the AGF the Supervising Officer of the EFCC. In fact, in AG Abia State v AG Federation (2002) 6 NWLR (Pt. 764) 542, the Appellant had sued the AGF for alleged infractions of the law by the EFCC. In striking out the case upon the Preliminary Objection of the Respondents, the Supreme Court held that the EFCC is not an agent of the Attorney General of the Federation. Therefore, the power of the Attorney General of the Federation to take over cases being prosecuted by the EFCC cannot, by any stretch of imagination, be extended to the power to interfere or take over the case or cases being investigated by the EFCC because the power conferred on the AGF in Section 174 of the Constitution only deals with pending trials and not cases that are yet to be filed in court. Most recently, in Re: Economic and Financial Crimes Commission v. Senator Abubakar Saraki & Anor, Suit No. FHC/L/CS/163/2019, delivered on 16th July, 2020, Aikawa J. had this to say:
“Lastly, the intervener/Applicant relied on the asset tracing recovery and management regulations 2019 and submits that the EFCC is a distinct office from that of the Attorney General of the Federation. This action is therefore predicated on a faulty pedestal
I think the position of the law is settled that regulations for rules or the likes cannot override the provisions of a statute. In my war, these provisions are clear as to the powers of the Applicant, the Economic and financial crimes commission to commence this action. Consequently, I consider and hold that paragraph 5 of the Asset Regulations 2019 are void for being inconsistent with section 17 (1) of the Advance fee fraud and other fraud related offences act.”
It is submitted that with the legion of judicial authorities cited above on the status of the EFCC and the extent of the powers of the AGF, it is hoped that the AGF will do the needful by desisting from imposing his illegal rules or regulations on the Agency or Nigeria as if the AGF is but law unto himself in this regard.
No doubt, President Buhari is empowered to institute a commission of inquiry within the Federal Capital Territory. But the practice of setting up panels to investigate allegations of corruption levelled against public officers should be discouraged and discontinued. Since all citizens are entitled to equal rights and opportunities before the law, Public Officers accused of committing criminal offences should not be investigated by Presidential Panels while other citizens are investigated by the police and relevant anti-graft agencies. Apart from subjecting public officers accused of corruption or misconduct to special treatment, the reports of the probe panels are usually sent to relevant anti-graft agencies for prosecution where indictment is established. Instead of wasting public funds on probe panels, the Federal Government should refer allegations of corruption and abuse of office to the police or any of the anti-graft agencies for investigation and prosecution.
Finally, it is, however, doubtful if the Federal Government has not decided to use the Magu probe to weaken the EFCC. It is also sad that while the Buhari administration prides itself in waging serious war or fight against corruption, it has done nothing to investigate Mr. Malani SAN, whom accusing fingers have been pointed at severally by many concerned Nigerians including Magu. I think it is high time the government looked inward in this direction so as to display some sense of transparency in the assumed or pseudo-fight against corruption in Nigeria. This is because I believe that the corruption under this government will likely outweigh those under the past administrations. Malami seems not to be the angel he tries to proclaim but government is shielding him against questioning, and except he is no longer treated with kid gloves, many will not believe in this government’s fight against corruption. My fear is borne out of the fact that a few months ago, the Chairman of another anti-graft agency was accused of corruption and certificate forgery by the AGF. The said Chairman was suspended while the agency was dissolved by the Federal Government. I have confirmed that all the case files and proceeds of crimes recovered by the agency have been taken over by the office of the AGF. It is hoped that at the end of the ongoing secret inquiry, the EFCC will not be dissolved or rendered impotent. Only time will tell.
Before I am done, it needs be pointed out here clearly that this piece is not aimed at white-washing Mr. Magu or any of his suspended lieutenants but rather to put matters in strict and proper perspectives. Also, I believe personally that Magu’s conduct at the EFCC has not been impressive and I suggest he be prosecuted if truly found to be corrupt; however, his accusers who are also not angels should not be spared if found wanting, which is not unlikely.
Before I rest anchor, may I answer the question of some people on whether the chairmanship or headship of the EFCC is the exclusive preserve of a particular region? I think it is not. Therefore, the opinions of some people that it is highly ludicrous for anybody to think that in matters of corruption, certain race or tribe is holier than the others may not be unconnected with the fact that all the Chairmen of the EFCC came from a particular region. To avoid this kind of thinking, it is suggested that future appointment considers other region in choosing the chairman of the agency as against what we have now where all the past chairmen of the agency came from the Northern part of Nigeria, especially from the North East of Adamawa and Borno States. Although, there is nothing wrong in appointing the leadership of the commission from a particular area so far they perform well, where they did not, one would have expected the government to beam its search light on other areas to test if there will be any difference. What then should be the qualifications of the Chairman of the EFCC? Section 2 of the EFCC Act, 2004 provides:
(1) The commission shall consist of the following members-a chairman, who shall- be the chief executive and accounting officer of the commission
ii) be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Police or equivalent; and
iii) and possess not less than 15 years cognate experience.”
We submit that looking at the above provision of the law, the newly appointed Chairman of the EFCC is not qualified because he does not belong to any security or law enforcement agency as prescribed by the law establishing the Commission. This is reason why all former Chairmen were either retired or serving police officer, but definitely not a mere employee of the commission who is not police or law enforcement officer. Unfortunately one is surprised that our rubber stamp National Assembly has cleared him under very questionable circumstances because apart from the statutory non-qualification, there is the moral question as to his qualification because there are allegations of corruption levelled against him and still pending.
The submission becomes more appealing if the dossiers of all the former Chairmen of the EFCC are scrutinized. This is because apart from the pioneer Chairman of the agency, Nuhu Ribadu, all subsequent Chairmen never ended without some blemishes and dirty allegations, including Ibrahim Magu. It is then hoped that the incoming Chairman of the Agency will live above board and shock all doubting Thomas who think that he may be a square peg in a round hole or that he is the protégé of the AGF and going there to do his bidding or cover his dirty tracks. According to that legal icon and consummate advocate of all time, Chief Wole Olanipekun (SAN), in one of his numerous thought provoking articles, titled “EFCC should be an enduring institution, not tied to persons and personalities”, “Care must be taken not to confuse enduring institutions like the EFCC with persons and personalities. Institutions are meant to serve the permanent interests of the nation and not the narrow and transient interests of those who man them…. For now, what should be of prime concern to those who honestly want corruption wiped off or substantially eliminated from our polity is that whoever is the Chairman of the EFCC should be independent of the president. He should not be taking instructions from him as to who to prosecute and who not to. He should not be a member of the President’s kitchen cabinet and neither should he be labelled or tagged as the President’s boy. An independent EFCC which we all yearn for should not be used as stool or vessel by whoever is the President to harass, intimidate, threaten or prosecute supposed political and economic enemies”.
Taking a cue from the above wise counsel from the erudite lawyer, does the new EFCC Chairman, Mr. Bawa who is believed to have been single handedly sponsored by the AGF possess these qualities as to eminently discharge the duties of the office in line with best standard practice? The answer can only be imagined. We cross our fingers and hope for the best as the new chair takes up the mantle of leadership.
Kabir Akingbolu, Esq., a Constitutional Lawyer and Human Rights Activist writes from Lagos.