Reactions over conflicting verdicts on EFCC’s probe of states

The differing decisions of various high courts on the powers of
the Economic and Financial Crimes Commission (EFCC) to investigate
the accounts of states have increased the anticipation of Nigerians
on the outcome of the various appeals on this vexed issue of
law.

When in January a Federal High Court in Ekiti ruled that the
EFCC has no powers to investigate the finances of the state under
the governorship of Ayodele Fayose, the anti-graft agency, through
its spokesman, Wilson Uwujaren, vowed to challenge the verdict in a
higher court explaining that “the EFCC is confident that the
judgement cannot stand.”

Again, on October 4 a High Court in Port Harcourt presided by
Justice George Omereji ruled that the EFCC has no right to
investigate the Rivers State government or its officials.

However, a Federal High Court in Abuja presided by Justice
Nnamdi Dimgba on October 8 ruled that the EFCC has the statutory
powers to investigate the officials of Benue State government.

These differing opinions on a similar question of law have
thrown the functions and powers of the EFCC into more confusion
especially in the eyes of the public.

Under the EFCC Establishment Act, sub-section 1 (a) to (e) of
Part II grants it powers to ensure: “(a) the enforcement and the
due administration of the provisions of this Act; (b) the
investigation of all financial crimes including advance fee fraud,
money laundering, counterfeiting, illegal charge transfers, futures
market fraud, fraudulent encashment of negotiable instruments,
credit card fraud, contract scam, etc.”

Also, “(c) the co-ordination and enforcement of all economic and
financial crimes laws and enforcement functions conferred on any
other person or authority; (d) the adoption of measures to
identify, track; freeze, confiscate or seize proceeds derived from
terrorist activities, economic and financial crimes related
offences or the properties the value of which corresponds to such
proceeds; and e) the adoption of measures to eradicate the
commission of economic and financial crimes.”

Reacting to the development, Barr E.M.D Umukoro agreed with
Justice Dimgba that the powers of the EFCC to investigate a
governor is unfettered based on its Establishment Act, but it lacks
powers to freeze the bank accounts of states or to prosecute the
governor who enjoys constitutional immunity.

He explained that the basis for the seeming conflicting
decisions on the powers of the EFCC to probe into the funds of a
state government, could be influenced by the arguments canvassed
before the judges by the parties.

He however advised that where they are not satisfied, the
parties should go to the Court of Appeal to thrash out the
issues.

“A court may decide a matter without the knowledge of a recent
superior decision or law etc and thus fall into error,” he
said.

“The issue of the powers of investigation of any person (natural
or otherwise) by investigating agency has been laid to rest in the
case of Fawehinmi vs IGP if my memory recollects correctly,”
Umukoro added.

In his submission, Hamid Ajibola Jimoh Esq. said though Section
28 of the EFCC Act as well as Parts 33 and 34 of the Administration
of Criminal Justice Act empowers the anti-graft agency to arrest
and freeze the accounts of individuals and corporate bodies, same
is not referred to a state governor or the accounts of state
governments.

He said the sealing of state government account by any executive
law enforcement agency without the resolution of the state assembly
“is illegal, unconstitutional, null and void and usurpation of the
legislative powers, abuse of power, tyrannical and violation of
rule of law but respective for rule of force.”

“The constitution has placed all financial investigation on the
account or funds of a state government in the State House of
Assembly and not the executive or EFCC and even not the governor.
So, only the assembly can investigate such account following the
laid down procedures for such,” he said.

He also identified the Auditor-General of a state as having the
powers to investigate state accounts records, and might be
approached by the EFCC if investigation is necessary on state
account, “which is a public treasury account.”

In her reaction, the coordinator of the Proactive Gender
Initiative, Barrister Esther Uzoma, explained that since the courts
that have delivered divergent rulings on the EFCC powers to probe
into the finances of states are of coordinate jurisdiction, none is
superior to the other or can be bound by the other, adding that the
divergence might have arisen from the types of arguments canvassed
before the courts.

“In AG Ondo v AG Federation 2002, the Supreme Court stated
amongst others that the EFCC Act being a creation of the National
Assembly is binding on states, persons and entities,” she said.

Barrister Oghenvo Otemu said though the constitution empowers
the state assemblies to legislate on finances of the states, the
EFCC has the powers to investigate any one that has committed
financial offence the entire country, adding however that the EFCC
does not have the powers to freeze the accounts of the state.

While the EFCC has powers to investigate allegations of fraud in
public finances, it lacks the powers to freeze accounts of state
governments in the course of doing its duty. While the Abuja
verdict harped on this point, all eyes would now focus on the
appeal by Benue State.