By Adebisi Adenuga
The Presidential Advisory Committee Against Corruption (PACAC) last Wednesday raised the alarm about a draft bill seeking to scrap the Economic and Financial Crimes Commission (EFCC) and replace it with an agency under the control of the Attorney-General of the Federation. Statekholders are worried that this could be the nail in the coffin of the anti-corruption war.
A plan to scrap the Economic and Financial Crimes Commission (EFCC) is underway. A draft bill, now in circulation, seeks to replace the commission with an agency under the Federal Ministry of Justice under the Attorney-General of the Federation.
It eliminates EFCC’s autonomy and replaces it with an entity to be under the complete control of the Attorney-General and Minister of Justice. The Presidential Advisory Committee Against Corruption (PACAC) exposed the plot last Wednesday.
According to PACAC Chairman Prof Itse Sagay (SAN), the development amounted to “the mother of corruption fighting back”.
The proposed bill
The bill is entitled: “An Act to Repeal the Economic and Financial Crimes Commission (Establishment) Act, 2004 (Act No. 1 of 2004) and enact the Economic and Financial Crimes Commission Act which establishes a more effective and efficient Economic and Financial Crimes Commission to conduct enquiries and investigate all economic and financial crimes and related offences and for other related matters.”
In several sections, the bill seeks to give the Attorney-General of the Federation (AGF) so much power over the proposed new anti-corruption agency and reduce it to a “mere paper” department under the Federal Ministry of Justice.
For instance, the draft bill proposes a repeal of the EFCC Establishment Act 2004, the scrapping of the commission, and its replacement with a department in the Federal Ministry of Justice under the Attorney-General of the Federation.
It also proposes the replacement of the EFCC Executive Chairman with a Director-General to be appointed by the President, based on the recommendation of the AGF, subject to confirmation by the Senate.
Section 8 of the bill reads in part: “There shall be for the commission, a Director-General who shall be appointed by the President on the recommendation of the Attorney-General, subject to the confirmation by the Senate.
“Subject to the provisions of Subsection (3) of this section, the Director-General shall be a retired or serving member of any government institution, including any security or law enforcement agency not below the rank of a director or its equivalent or a person from the private sector.
“A person shall not be appointed as a Director-General, unless he is of proven integrity and has 15 years cognate experience in security, forensic or financial crimes investigation; forensic accounting or auditing; or law practice or enforcement relating to economic and financial crimes or anti-corruption.”
The proposed law restates the power of the AGF to discontinue the prosecution of criminal cases as guaranteed in Section 174 of the 1999 Constitution and empowers him to cancel the prosecutorial power of the EFCC when he sees fit.
Section 45 of the new bill states that the AGF may, after notifying the EFCC, intervene in court proceedings, at first instance or on appeal, where, in the opinion of the AGF, public interest, the interest of justice and the need to prevent abuse of legal process so demand.
It further reads: “On receipt of the notice under subsection (2) of this section, the commission shall hand over to the Attorney-General the prosecution file and all documents relating to the prosecution and provide him with such other information as he may require on the matter within the time specified by him.
“The commission shall furnish returns of all cases handled by it annually and in such manner and at such intervals as the Attorney-General shall direct.
“Where the commission fails to comply with the provisions of this section, the Attorney General may, subject to prevailing circumstances, revoke the power to prosecute from the commission.”
The draft bill states that the chairman and members of the management board shall be appointed by the President, on the recommendation of the Attorney-General subject to confirmation by the Senate; and for a period of four years in the first instance, renewable for another period of four years and no more.
The Secretary of the EFCC, which is a creation of Section 8 of the existing EFCC Act, is not mentioned in the new bill, indicating that the position has been scrapped.
Other proposals are the replacement of the EFCC Board with directors to be appointed by the Attorney-General, and the elimination of the position of the Secretary of the EFCC, who PACAC said is a critical officer who serves as the institutional memory and the administrative head of the agency.
According to PACAC, Section 11 of the proposed bill provides that nobody may be appointed or seconded to the new agency unless he is screened and approved by the Department of State Services (DSS).
Under the bill, the EFCC’s annual report is not to be submitted to the National Assembly until it has been passed through the Attorney-General for onward transmission to the National Assembly; thus making the Attorney-General the reporting officer of the agency rather than the Chairman or the Director-General, as the new bill is proposing.
The EFCC under the watch of its suspended Acting Chairman, Ibrahim Magu, had a strained relationship with AGF Abubakar Malami (SAN), who accused Magu of insubordination and re-looting of recovered funds.
It was also complained that Magu often failed to forward case files bordering on corruption to the AGF’s office. Rather the EFCC proceeded to court, a situation which Malami felt was, among others, unprocedural.
The power play between both men resulted in Magu’s arrest last July by a combined team of Department of State Services personnel and.
He has since been replaced by EFCC Director of Operations, Mohammed Umar, pending the conclusion of the ongoing investigation and further directives. Since Magu’s axing, President Muhammadu Buhari reportedly suspended 10 senior officials of the EFCC.
Magu’s suspension followed an all too familiar trend of top bosses of the anti-graft agency facing the axe in very questionable ways for allegedly questionable behaviour.
The new bill has evoked alarm in many stakeholders. They are particularly concerned by the AGF’s (exercise of his constitutional right) of filing of nolle prosequi (discontinuance of a criminal proceeding) in respect of major political and governmental figures.
Frustrated corruption cases
According to one of such stakeholders, the Civil Society Network Against Corruption (CSNAC), the AGF’s office is to be blamed for many stalled high profile corruption cases. It cited the trial of a former Kogi State Senator Mr. Dino Melaye, as one of the high profile cases allegedly stalled by the AGF’s office.
It made the allegation in a petition titled “Illegal takeover of the case file of Senator Dino Melaye on the operation of foreign bank accounts and obstruction of justice by the Attorney General of the Federation and Compromise of Prosecutions” signed by its Chairman, Mr. Olanrewaju Suraju.
Following allegations of running a foreign account, some with fictitious names, the rights group petitioned the Code of Conduct Bureau (CCB), requesting for prosecution.
It said the bureau in a reply dated May 22, 2018 stated that it had transferred the case file to the Ministry of Justice on the request of the Attorney-General.
Similarly, a coalition of about 150 civil societies on August 3, in a petition to President Muhammadu Buhari, also listed about 14 cases bordering on corruption said to have been stalled by the office of the AGF which they said threatened the prospect of future of anti-corruption campaigns.
The coalition alleged that, that on November 18, 2018, Mr. Malami, through a lawyer from his office, Mr. Pius Akuta, came to Lagos High Court to withdraw a case of fraud filed by EFCC against one Dr. John Abebe, a businessman and younger brother to the late Stella Obasanjo but the EFCC resisted the illegal move before Justice Mojisola Dada of Ikeja High Court on the ground that the AGF had no constitutional power to take over a case filed in Lagos High Court.
Other allegations listed included the withdrawal of the case against the Chairman, Code of Conduct Tribunal (CCT), Mr Danladi Yakubu, for criminal charges, demand for the withdrawal of the cases against Bello Adoke, Diezani Alison-Madueke and others involved in the Malabu scandal and his alleged halting of investigation of fraud in the Nigeria Incentive-Based Risk Sharing System for Agricultural Lending (NISRAL).
SAN, others kick
Given the sweeping powers the proposed bill seeks to grant the AGF, including power to cancel the prosecutorial power of the EFCC when he sees fit, even at the level of the Court of Appeal, should a country bedevilled with various levels of corruption allow the passage of such a bill?
Lawyers, including Chief Louis Alozie (SAN), Dr Fassy Yusuf and former Commissioner, Ogun State Judiciary Commission, Abayomi Omoyinmi and Social Economic Rights and Accountability Project (SERAP) said allowing such proposed bill to be passed into law will ridicule the fight against corruption.
Scrapping EFCC will take corruption will reach its peak
According to Alozie, the proposed amendment to the EFCC Act is, to say the least, most unfortunate.
“Coming at a time when there are accusations and counter-accusations of corruption, abuse of office, etc. between the Attorney General of the Federation and the EFCC. It is most ill-timed, especially as these allegations are yet to be resolved or laid to rest.
“It is more of power play between two powerful agencies of government. What Nigeria needs now is a fully-independent anti-corruption agency and not one subjected to the whims and caprices of the Honourable Attorney General of the Federation. “
Alozie recalled that during the 8th National Assembly, attempts were made to amend the EFCC Act to remove the power of appointment of the Chief Executive from the President. He said those attempts, which failed because of political intrigues, were aimed at making the agency free from undue influence, manipulations and control by the Executive Arm of Government .
“The present Federal Government enjoys very poor human rights record. In fact, its human rights record is too bad as they are arbitrary, and there have been accusations of witch-hunting of political opponents and double standards here and there.
“The EFCC has been so degraded to the extent that the former chairman of APC, Comrade Adams Oshiomhole, was wooing corrupt political opponents who had cases with EFCC to cross carpet to the APC so that their sins would be forgiven.
“Against this backdrop, it is obvious that the EFCC will become completely the attack dog of the ruling party if the proposed amendment scales through,” he said
He claimed that the AGF as the Chief Law Officer of the Federation, Chief Prosecutor, has turned out to become the enforcer in Chief of the dictates of the President and his party, the APC.
“Allowing the proposed amendment will make Nigeria degenerate into fascism and a state of anarchy. Political opponents will be manipulated; corruption will reach its peak in that politics is a critical factor in the policies and actions of the Federal Government and not for the good of Nigerians.
“The level of corruption presently is so high at all levels of government that we need an EFCC that is completely independent and not one subject to the control of the eExecutive arm of government.
“We need an EFCC that is completely autonomous and not one that is completely under the control of the Attorney General of the Federation. The proposed amendment is ill-motivated and unpatriotic.
“The bill if passed into law will completely stifle the operations of the anti-corruption agency and kill or whittle down the fight against corruption. Unfortunately, we have a compromised and largely dependent National Assembly that will rubber stamp everything submitted to it by the Executive for their own selfish purposes.
“In my view, it is not in the interest of Nigerians that the bill should be passed. If that bill is passed, opposition party members will be brutalised and persecuted, while corruption by leading members of the ruling party will be swept under the carpet. Justice will become an article of merchandise in view of revelations coming recently from the EFCC.
Sad day for Nigeria
According to Dr. Yusuf, “It will be a sad day for the country if the bill is allowed to see the light of the day. Policy inconsistencies have been the bane of Nigeria and the intendment of the proposed bill is to weaken the fight against corruption.
Yusuf said: “I personally do not see any good in what is being proposed. The current Attorney General should ponder over what he wants to be remembered for. He has less than three years to go, yet he wants the institution fighting corruption to collapse!
“Honestly, I do not see any sense in the action of the AGF. He should retrace his steps.”
Omoyinmi said the proposed bill to scrap the EFCC and replace with an agency under the federal ministry of justice was a misplaced priority, as there could never be a totally effective and an efficient EFCC if the proposed bill should sail through.
According to him, the independent of the EFCC is the most viable option at this critical moment in our effort to effectively tackle and address corruption in Nigeria, adding that the bill will adequately undermine the commission’s self-direction and competence, which will then render it a toothless bull dog.
According to Omoyinmi, “the appointment of the EFCC chairman in my opinion should be exclusively that of Mr President subject of course to confirmation by the Senate, rather than any recommendation from the Attorney-General who is also the minister for Justice.
“Perhaps if the office of the Attorney-General is separate from the minister of Justice then in my opinion, this proposed bill could be given a second thought, but considering the enormous powers of the Attorney-General in his ability to be able to terminate criminal proceedings which also include the one being handled by the EFCC, my suggestion is that the bill should be withdrawn and rather strengthen the commission with necessary tools to fight corruption in Nigeria and also make sure that it’s independence is not consumed by a different agency or the office of the Attorney-General,” he added.
SERAP demands bill’s withdrawal
For anti-graft group, Socio-Economic Rights and Accountability Project (SERAP), the proposed bill, if passed and signed into law will severely undermine the commission’s independence, and render it a ‘toothless bulldog or toothless tiger’.
It asked President Muhammadu Buhari to instruct the Minister of Justice and Attorney-General of the Federation, Abubakar Malami (SAN), to withdraw the proposed executive bill to amend the Economic and Financial Crimes Commission [EFCC] Act.
A September 19 letter, signed by SERAP Deputy Director, Kolawole Oluwadare, said: “The bill, which is apparently designed to undermine the independence, integrity and freedom of action of anti-corruption agencies, ignores the seriousness of grand corruption and its impact on Nigerians’ human rights, the rule of law, principles of good governance, development, as well as the threat corruption poses to the country’s constitutional order.”
According to SERAP: “By pushing to turn the EFCC into a department in the Federal Ministry of Justice, and effectively bring it under the control of the Attorney-General; and to subject the appointment of the agency’s head to the approval of the Directorate of State Security, your government would seem to indicate that it is not interested in combating corruption and halting its putrefying effects.”
The letter, reads in part: “We would be grateful if the requested action and measures are taken by your government. Should the proposed bill be passed and signed into law, SERAP would take all appropriate legal actions to challenge its legality, in the public interest, and to ensure that anti-corruption agencies in Nigeria can operate independently and effectively….
”This bill is entirely inconsistent and incompatible with the Nigerian Constitution of 1999 [as amended] and the country’s international anti-corruption obligations including under the UN Convention against Corruption and the African Union Convention on Preventing and Combating Corruption to which Nigeria is a state party.
“SERAP notes that corruption threatens the injunction that government must be accountable, responsive and open; that public administration must not only be held to account but must also be governed by high standards of ethics, efficiency and must use public resources in an economic and effective manner.”
“Under the proposed bill, the limited independence that the EFCC enjoys will be substantially undermined, as the commission will now effectively become a body of the executive government, thus creating heightened risk of political interference in the work of the commission.”