Echoes Of Reason: Before The Destruction Of The Economic And Financial Crimes Commission Without Recourse To Law But Personal Interest And Ethnicity

By Kabir Akingbolu, Esq.

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.

CONCLUSION

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.

By Kabir Akingbolu, Esq.

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.

CONCLUSION

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.