Issues As Sanwo-Olu Endorses Anti-Corruption Agency Law

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*Legally, EFCC Can Hand Over Corruption Cases To States — Prof.
Sagay

The Lagos State House of Assembly on Tuesday, December 8, 2020,
passed into law, a bill to establish the Lagos State Public
Complaints and Anti-Corruption Commission and for connected
purposes. The bill, which could be described as one to have the
speediest passage, was passed after it was read for the third time
and a consequent voice vote conducted by the Speaker, Mudashiru
Obasa.

Before the passage of the bill, the House had organised a day
public hearing, where Obasa disclosed that the bill, when passed
into law, would make public officers earn more public trust by
improving public transparency and accountability in all spheres of
governance in the state.

The Speaker, who was represented at the public hearing by his
deputy, Wasiu Sanni-Eshinlokun, disclosed that when the bill
becomes a law, it would underscore the stature of the bill as not
just germane towards ensuring further accountability and trust.

He said, “The current bill seeks to create the Lagos State
Public Complaints and Anti-Corruption Commission in Section 2 of
the bill.

“For clarity purposes, the objectives of the commission are
elaborately spelt in Section 8 while the general functions are
itemised in Section 14 of the bill.

“To ensure diligence, the bill creates a clear administrative
structure; offences under the scope of the commission; the
jurisdiction; the commission’s modus operandi; funds management and
disciplinary procedures.”

He added that the law was a public conscience, hence, regardless
of how well it is drafted, it remains sacrosanct to hear from and
incorporate the conscience and thought of the public to make a good
law.

Before the final passage of the bill, some of the members raised
concerns on how effective the law would be and how well its
implementation would work out.

However, while many political analysts and stakeholders have
wondered why the state legislators would pass such a bill into law.
They questioned how a state government can achieve such powers to
take corruption cases away from the country’s anti-corruption
agencies, the Economic and Financial Crimes Commission (EFCC) and
Independent Corrupt Practices and Other Related Offences Commission
(ICPC).

Section 13(3) of the law states that: “The commission shall upon
the commencement of this law take over the investigation of all
anti-corruption and financial crime cases involving the finances
and assets of Lagos State Government being investigated by any
other agency.”

Also, section 13(5) of the law provides that, “the commission
shall have the power to the exclusion of any other agency or body
to investigate and coordinate the investigation of corruption and
financial crimes cases involving the finances and assets of the
state government.”

The new agency is also empowered to probe any offence under the
criminal law of the state in relation to corruption and financial
crimes, abuse of office, offences relating to administration of
justice, obtaining by false pretences, cybercrime, fake news,
interception of emails and fraudulent dealing with property
debtors.

After signing the law, Sanwo-Olu said the action was a testimony
to the state government’s effort towards entrenching accountability
in governance and checking malfeasance among officers entrusted
with public resources.

According to him, the commission is to investigate and prosecute
officials of the state government and deregistered contractors
indicted for economic crimes and financial misappropriation.

Sanwo-Olu said “The bill establishing Public Complaints and
Anti-Corruption Commission is an important legislation critical to
the delivery of quality services to the citizens.

“When we came in, we had said we would be accountable and
responsible in the appropriation of the state’s resources. We want
to stand in front of the citizens to give account on how public
funds are being spent.

“To give credence to this promise, the executive arm initiated
the bill and sent it to the Assembly for approval. We believe that
this law would ensure accountability of public funds,
responsibility of public office, it will also promote dialogue
among public officers to keep the trust of the people in the
discharge of their duties in line with transparency.

“The anti-corruption commission will ensure that all approved
activities are implemented in accordance with budgetary
allocation”, he said, adding that the agency would complement
efforts of similar agencies in the police and federal
establishment.

However, there have been mixed reactions towards the law,
especially from those in the legal profession. Some legal experts
who spoke with DAILY INDEPENDENT, expressed divergent views over
the law.

Prof. Itse Sagay, a Senior Advocate of Nigeria (SAN), and
chairman of the Presidential Advisory Committee Against Corruption
(PACAC) said, “legally, it is possible for the EFCC to hand over
corruption cases it is investigating to states, provided there is
an agreement between the parties. Under the EFCC Act, the states
are allowed to do that. Even private prosecutors can be hired and
the state prosecutors can also be involved in state courts.

When asked if the incumbent governor can prosecute his
predecessors, Sagay said “Any former governor has no immunity, so
it is possible for them to be prosecuted.”

On his part, Monday Ubani, a former Second Vice- President of
the Nigerian Bar Association (NBA) said the anti-graft agencies
should not hand over the cases to Lagos as that will mark the end
of the investigation.

The former chairman, Ikeja branch of NBA said there is no way
Governor Sanwo-Olu can prosecute Tinubu who placed a key role in
the position he occupies as Lagos governor.

“I am worried about the EFCC handing over the cases to Lagos
State Government. Do they have the powers to prosecute? Can the
Lagos State Government prosecute Asiwaju Bola Tinubu? We all know
that Tinubu is Lagos and Lagos is Tinubu. Is it Sanwo-Olu that will
prosecute Tinubu?”

“Can Lagos State prosecute Babatunde Fashola? Obviously, if the
EFCC should hand over the cases to the Lagos state government, that
will be the end of those cases. Let them not just do what will put
them in bad light.”

Also speaking, Senator Oserheimen Osunbor, a professor of Law
and former Edo state governor said any law passed by the state
House of Assembly on corruption or economic crimes is inferior to
Acts of the National Assembly which sets up both the EFC and
ICPC.

He said “To respond to your question I will refer you to the
“doctrine of covering the field”. This means that where the
Constitution or an Act of the National Assembly has provided for a
particular matter and has, so to speak, covered the field, it will
be pointless for a House of Assembly of a State to legislate on the
same matter.

“That will be duplicity, a surplus and unconstitutional.
Furthermore, section 4 of the Constitution provides expressly that
any law passed by the House of Assembly of a State that is in
conflict with an Act of the National Assembly shall be void to the
extent of its inconsistency”.

“In the same vein, it has long been settled by the Supreme Court
in the case of Attorney General of Ondo State v. Attorney General
of the Federation some twenty years ago, that the ICPC Act (and
presumably the EFCC Act) which seeks to curb corruption is within
the legislative competence of the National Assembly”.

“In summary therefore, it is beyond any argument that any law
passed by the House of Assembly of a State on corruption and
economic crimes is inferior to Acts of the National Assembly on the
same matter and is void to the extent of its inconsistency”.

Speaking on the new law, Dennis Alamu-George, Executive
Secretary of Rescue Nigerian Economy Project, a civil society
organisation alleged that Sanwo-Olu is only acting the script of
Tinubu to put an end to his prosecution.

According to him, “This new law is simply a case of Tinubu and
his acolytes creating their own special anti-graft law different
from the one that you and I are subject to. It is his own way of
pulling the rug off the feet of the APC cabal which wants to use
his corruption cases to deflate his presidential campaign”.

“This is impunity, lawlessness, traits of dictatorship and
demagoguery at play. If a man could do this because he controls
only one State and he goes ahead to create a law aimed at exempting
him from trial, if he becomes the President, he will create laws to
suit himself or punish his opponents. This is a dangerous
signal.

“This Lagos law will asphyxiate the EFCC and ICPC. It will
narrow their scope of operations because other states will emulate
Lagos and create similar laws. All out-going Governors will find
the laws very attractive and as a protective shield and the law
will only intensify the desperation of outgoing governors to put
their lackeys in office by all means as successors”.

“EFCC and ICPC will end up with the ability to deal with only
federal officers who get involved in corrupt practices. This style
may be what to expect from the next APC government at federal
level. Laws that are made to protect specific individuals. Don’t
forget that Kano State started this trend when it set up an
anti-corruption Commission to protect Umar Ganduje over the dollar
case.”

“Now Lagos has taken it to a more dangerous height. The Lagos
law states that when a case of corruption is before the State House
of Assembly, the anti-corruption commission cannot look into it
again. So, all the government needs when it is interested in
protecting a person accused of corruption is to report the matter
before the LSHA and leave the matter pending there”.

“The Tinubu Group is setting a dangerous trend and precedent.
And they will be the loudest if half of what they are doing is
tried by any other person or group. They believe they have taken
control of the media and the CSOs,” he added.