Falana Disputes Agbakoba’s Claim on EFCC’s Legal Status

Renowned lawyer Femi Falana has challenged Olisa Agbakoba’s assertion that the EFCC is unconstitutionally established, sparking a legal debate on the anti-corruption agency’s legitimacy.

Femi Falana (SAN), a human rights activist and lawyer, has penned a letter to the Senate President, Senator Godswill Akpabio, and the Speaker of the House of Representatives, Tajudeen Abbas. In his correspondence, he challenges the perspective shared by Dr. Olisa Agbakoba (SAN), former president of the Nigerian Bar Association, concerning the legal standing of the Economic and Financial Crimes Commission.

In a letter from 17 October 2024, Falana expressed disagreement with Agbakoba’s claim that the EFCC is an “unlawful organization.”

The letter stated: “We have become aware of distinct letters sent to the Senate and House of Representatives, both dated October 14, 2024. These letters were titled ‘Re: Urgent Legislative Attention on Constitutional Reforms Relating to Law Enforcement Agencies and Anti-Corruption Efforts.’ In them, Dr. Olisa Agbakoba contended that the authority under which the EFCC was created surpasses what is granted to the National Assembly.”

Believing that the Economic and Financial Crimes Commission is “an unlawful organization” due to its “unconstitutional establishment,” Agbakoba expressed satisfaction in seeing numerous states contesting the EFCC’s constitutional validity.

Falana added that Agbakoba failed to provide any case examples supporting his assertion that the Supreme Court had criticized the EFCC’s activities and existence.

He mentioned that Dr. Agbakoba did not cite a specific case but suggested that the Supreme Court frequently criticizes the EFCC. However, in reality, the Supreme Court has consistently backed both ICPC and EFCC’s efforts to tackle widespread corruption in the nation.

Falana also observed that Agbakoba’s stance was grounded in the argument that creating the EFCC contravened fundamental principles of federalism.

It is important to remember that in the renowned case of Attorney-General of Ondo State v. Attorney-General of the Federation & Others (2022) 27 WRN 1, the Plaintiff, which was the Ondo State Government, contested the constitutional legitimacy of the Independent Corrupt Practices and Other Related Offences Commission Act from 2000. The role of Plaintiff was held by the Attorney-General of Ondo State, while Defendants included both the Attorney-General of Nigeria and those from each other state’s government totaling thirty-five states.

In that situation, the late Professor Ben Nwabueze and Dr. Agbakoba served as amici curiae, while I had the privilege of representing one of the Defendants. It is documented that multiple Defendants along with the amici curiae argued vigorously against the constitutionality of every aspect of the ICPC Act. Both amici curiae recommended to annulment by urging it in court.

After thoroughly reviewing the arguments presented by all counsel, including those of the amici curiae, the highest court affirmed that the ICPC Act is constitutionally valid. In a landmark judgment delivered by Uwais CJN (as he then was), it was determined that only the National Assembly has the authority to create and oversee bodies within any part of or throughout Nigeria in order to fulfill its mandate to eradicate corrupt practices and abuse of power, as stated in Section 15(5) of the 1999 Constitution.

“If this constitutes a violation of federalist principles, then it is the Constitution itself that enables such a breach. As long as this deviation aligns with constitutional provisions, one cannot justly claim any illegality arising from the Constitution’s inability to adhere to fundamental principles; these are primarily ideals meant for guidance in an ideal scenario… Section 13 of the Constitution applies universally to all branches of government and all entities or individuals exercising legislative, executive, or judicial powers.”

He stated, “The rules do not differentiate between Federal, State, or Local Governments. Furthermore, Section 14 subsection (4) particularly pertains to the government or council and how they manage their affairs.” Refer to Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580 for further details.

While we cannot discuss the merits of the ongoing case at Nigeria’s Supreme Court, it is important to direct members of the National Assembly to consider Attorney-General of Abia State v. Attorney-General of the Federation (2024) LPELR-62576 (SC). In that case, it was contended by the Plaintiff that while EFCC can prosecute financial crimes, its authority does not extend to overseeing and managing Abia State Government’s accounts.

READ ALSO: Agbakoba Writes National Assembly, Claims EFCC Is Unconstitutionally Established

The Plaintiff requested declarations, including a permanent injunction, to stop the EFCC from actions such as freezing its bank accounts. In response, the Defendant (AGF) submitted a preliminary objection, contending that it was improperly named in the lawsuit because the EFCC operates independently and is not under its legal management or control.

The Supreme Court, in accepting the Defendants’ preliminary objection, determined that the case did not reveal any dispute between the Plaintiff and the Defendants as defined by section 232(1) of the Constitution. Furthermore, there was no complaint against the first Defendant (AGF) acting on behalf of the Federal Government; all complaints were directed solely at EFCC.

Falana further mentioned that since the EFCC was established, no one has contested the legality of its Act in any court.

As a result, the Supreme Court dismissed the case but determined that the Plaintiff is free to sue the EFCC in an appropriate court since it does not qualify as either a state or federation entity. It should be stated confidently that no state government has acted on this advice from the highest court by filing a lawsuit challenging the constitutionality of the EFCC Act in any competent jurisdiction.

Nevertheless, many former governors continue to challenge the authority of the EFCC in arresting, investigating, and prosecuting them for allegedly diverting public funds from state governments. In Nyame vs. the Federal Republic of Nigeria (2010) 3 SC (Pt.1) 78, the Supreme Court ruled that Sections 6(m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act empower the EFCC with both investigative and prosecutorial responsibilities concerning financial crimes. The court further stated that it is unreasonable for individuals to seek judicial intervention as a means to obstruct or avoid criminal investigation and prosecution.

In further argument, Falana pointed out that Section 15(5) of the Constitution mandates the state to “abolish all corrupt practices and abuse of power.” He referenced the Supreme Court’s decision in Shema vs. Federal Republic of Nigeria (2018) 9 NWLR (Pt. 1624) 337 at page 398, which established that under Nigeria’s cooperative federalism system, the EFCC is a unified agency authorized to investigate and prosecute both federal and state economic crimes. Therefore, it qualifies as “any other authority or person” empowered by section 211(1)(b) of the Constitution to initiate criminal proceedings.

The EFCC serves as the principal agency responsible for enforcing laws and regulations related to economic and financial crimes, such as those found in the Criminal Code and Penal Code. According to section 13(2) of the EFCC Act, it has the authority to prosecute offenses that involve financial crimes.

Falana criticized certain state governments for attempting to hinder the Federal Government’s anti-corruption efforts, rather than supporting these agencies in their endeavors.

He commented, “Rather than making sure the EFCC, ICPC, and Code of Conduct Bureau act as ‘common agencies’ for all Nigerians in fighting massive corruption, some state governments have tended to halt serious economic and financial crimes by submitting nolle prosequi applications.”

Many often hasten to the State High Court or Federal High Court seeking frivolous court injunctions, aiming to hinder the prosecution of serving public officials. This undermines public accountability and transparency in government.

Falana encouraged the National Assembly to take advantage of the current Constitution amendment process to address and clarify legal questions concerning the EFCC and the Independent Corrupt Practices and Other Related Offences Commission by officially incorporating both entities into the Constitution.

Considering the above, we strongly encourage members of the National Assembly to seize the opportunity provided by the ongoing constitutional review. This should be used to conclude unnecessary debates about the validity of both the EFCC Act and ICPC Act by officially incorporating both commissions—the Economic and Financial Crimes Commission (EFCC) and Independent Corrupt Practices and Other Related Offences Commission (ICPC)—into the Constitution.

Falana stated, “To put it another way, constitutionalizing both commissions would protect and strengthen them in their fight against the scourge of corruption and money laundering.”