BREAKING: Supreme Court dismisses governors’ suit’ against EFCC, ICPC, and NFIU’s powers to fight financial crimes in Nigeria

The Supreme Court has dismissed suits challenging the establishment and prosecutorial powers of the Economic and Financial Crimes Commission (EFCC), the Nigerian Financial Intelligence Unit (NFIU) and the Independent Corrupt Practices Commission (ICPC).

The apex court described the suit as “selfish,” supporting not only the establishment of the anti-graft agencies but also their powers to investigate and prosecute financial crimes across the federation.

A seven-member panel of the apex court, led by Justice Uwani Abba-Aji, passed the judgment on Friday in cases filed by the Attorneys General of Kogi State and others against the Attorney General of the Federation.

This online medium reports that the EFCC was established by an Act of the National Assembly on December 12, 2002; however, the act was repealed and reenacted by lawmakers in 2004 and was signed into law on June 4, 2004, by President Olusegun Obasanjo, twenty years ago.

What Transpired in Court

In his oral argument, Mohammed Abdulwahab, SAN, counsel for Kogi State, who originally instituted the action, drew the apex court’s attention to a previous Supreme Court observation that a United Nations Convention Against Corruption was incorporated into the EFCC Establishment Act, contrary to Section 12 of the 1999 Constitution (as amended).

Section 12 partly states, “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.” 

“A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation.” 

Abdulwahab argued that the constitutional provision required a majority of the states’ Houses of Assembly to agree with their federal legislators in passing the EFCC Act and other related laws.

He alleged that this requirement was not met in the establishment of the EFCC Act, urging the apex court to rule that the creation of the anti-graft agencies contravened the law.

“I seek your Lordship’s indulgence to adopt the processes. We urge your Lordship to grant all the reliefs sought. We are also challenging the foundation of those laws that created NFIU, EFCC, etc., to avoid creating a constitutional crisis. We urge you to allow our suit and award heavy costs in favor of the Plaintiff on record,” he said.

He also asked the apex court to determine whether the EFCC Act, ICPC Act, and NFIU Act can be used to criminalize the use of funds belonging to the states and local governments and if the EFCC, NFIU, or any agency can investigate, invite, or arrest anyone involved in the management of funds belonging to the states or local governments.

Several states aligned with Abdulwahab’s submission, while some withdrew from the matter.

On his part, the Attorney General of the Federation (AGF), Lateef Fagbemi, SAN, stated that the establishment of the anti-graft agencies had been favorably settled by several previous Supreme Court verdicts.

He argued that granting the states’ reliefs would generally be interpreted as the apex court halting the agencies created to engage in a nationwide fight against corruption across the federation. He urged the court to dismiss the suit.

The Supreme Court, having observed that the issues raised by most of the states against the establishment and constitutionality of the anti-graft agencies were similar, held that its judgment on the main appeal by Kogi State would apply to all the states before them.

What the Supreme Court Said

On Friday, Abba-Aji began by addressing the preliminary objection of the AGF regarding jurisdiction.

She said that while the EFCC Act had been challenged in the previous case cited by the parties, the present case seemed to have brought in some agencies that were not part of the previous case.

She, however, held that the plaintiff’s case was against the AGF (the defendant) and not against any agency of the federal government; hence, the Supreme Court had jurisdiction to determine the case.

“Moreover, the non-joinder of a party does not affect the jurisdiction of this court. In matters of public interest, the AGF has the legal right (locus standi) to institute actions or defend same,” the judge held.

Determining the merits of the case, she said the NFIU Act was enacted by the National Assembly with the intent to combat money laundering and other associated crimes.

“By Section 15 of the 1999 Constitution, and the decision of this apex court in AG vs Ondo, the National Assembly has the powers to enact laws relating to fighting corruption, irrespective of whether the funds belong to the federal, state, or local governments,” she said, adding that the states are constituents of the federal government.

She said that where a guideline is made pursuant to an act established by the National Assembly, its constitutionality and legality cannot be challenged.

She added that in respect of other agencies mentioned in the case, they equally have powers to investigate financial crimes.

“Indeed, the effect of the provisions of the EFCC Act leaves no doubt that it has the power to investigate and prosecute financial crimes,” she said.

The apex court held that the first plaintiff (Kogi AG) and others “opened the can of worms and skeletons in its cupboard” when it deposed that the EFCC had invited and investigated officials of the state government and not the federal government.

This revealed “the selfish reasons of the plaintiff’s suit,” Abba-Aji said.

She said that as much as Kogi State has the right to enact laws, any of its laws that contradict the EFCC Act, NFIU Act, and ICPC Act, which have been enacted by the National Assembly, cannot have the force of law.

“No state has the right to enact a law that is inconsistent with the laws enacted by the National Assembly,” she said, faulting the AG of Kogi for acting as a “puppet” for corrupt practices.

She concluded that there was nothing in the NFIU Act that interferes with the powers of states to manage their funds.

“I resolve these issues against the plaintiffs,” the apex court held.

On the EFCC Act, the apex court held that the inclusion of the UN Convention in the act was aimed at addressing global issues, and the National Assembly can make laws on corruption without ratification by the Houses of Assembly.

The apex court concluded that the EFCC Act is competent, as it was enacted by the National Assembly within its legislative competence.

“The plaintiff’s suit fails and is hereby dismissed in its entirety,” she said, in a unanimous judgment.

What You Should Know

The EFCC and other agencies are Nigeria’s frontline anti-graft institutions that have ensured the investigation and prosecution of numerous financial crimes across the federation.