15 states’ suit against EFCC: Why S’Court must be thorough

The Supreme Court on October 22, reserved for judgment, the suit filed by 15 states challenging the constitutionality of the Economic and Financial Crimes Commission, EFCC, Independent Corrupt Practices and other Related Offences Commission, ICPC, and the Nigerian Financial Intelligence Unit, NIFU.

The 15 states are questioning the constitutionality of the EFCC Act, in the light of the decision of the Supreme Court in the case of Nwobike V. Federal Republic of Nigeria, that the EFCC Act was based on a United Nations Convention against corruption, same having not been ratified in line with Section 12 of the 1999 Constitution (as amended).

The states in the consolidated suit marked: SC/CV/178/2023 are Kogi, Ondo, Edo, Oyo, Ogun, Nassarawa, Kebbi, Katsina, Sokoto, Jigawa, Enugu, Plateau, Cross River, Niger and Bauchi.
Although a total of 18 states had joined the suit that was originally filed by Kogi State to challenge the establishment of the anti-graft agencies, four states namely: Anambra, Adamawa, Ebonyi and Benue withdrew from the case.

Meanwhile, as the apex court reserves judgment, it is important to note that it will be in the interest of the country, the federating units and the well being of the country that the court looks at merit and arguments of parties in reaching its decision.

Core issue before S-Court

The plaintiffs in their briefs of argument are asking the Supreme Court to nullify the EFCC, ICPC, NFIU and Proceeds of Crime Act, all rooted in United Nations Convention and protocol, having not been ratified by the Houses of Assembly of the plaintiffs in line with Section 12 of the 1999 Constitution.

Section 12 (1) of the Constitution says: “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.

“(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Executive Legislative List for the purpose of implementing a treaty.

“(3) 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.

According to the 15 states, the Supreme Court found as a fact in the case of Nwobike V. Federal Republic of Nigeria that the EFCC Act is a product of the United Nations Convention against corruption.

The states contend that the EFCC Act arising from the UN Convention, being an item not contained in the exclusive legislative list, recourse should have been made to states as stakeholders in the Federation in line with Section 12 of the 1999 Constitution.

According to them, the 1999 Constitution is very clear on the areas the National Assembly has exclusive reserve to make laws, the areas the states have and the areas both the National and State Assemblies share legislative powers.

According to them, the Acts in dispute, being rooted in UN Convention and protocol do not fall on any of those categories, as a result of which compliance with Section 12 of the 1999 Constitution was a mandatory requirement.

The states argued that failure to comply with Section 12 of the Constitution before the enactment of the acts was fatal.

The states further argued that the defendant in the suit, the Attorney-General of the Federation on the other hand, did not deny that the Acts were rooted in the United Nations Convention but that the concurrence of states of the Federation as stakeholders was not necessary for the validity of the Acts.

They contended that by this, the AGF meant that compliance with Section 12 of the 1999 Constitution was not necessary for the validity of the Acts and this is a strange argument as by this, the defendant also curiously implied that the findings of the Supreme Court in Nwobike V. Federal Republic of Nigeria that the UN Convention which gave birth to the Acts was not relevant.

Fear of undue influence on S-Court verdict

According to them: “It is feared that owing to the Constitutional significance of the suit, which could ultimately see the exit of the affected agencies, their laws having not been rooted in the 1999 Constitution, agents of the Federal Government could be making frantic moves to interfere and put pressure on the Supreme Court not to do the right thing as far as this suit is concerned.

“This is seen in the obvious pressure on some state governments to withdraw from the suit. Despite this, fresh states joined the suit. Even if it is one state, the case will be decided on its merit.”

In the originating summons filed by Kogi State, the state raised six questions for determination and sought nine reliefs.

Among them is “A declaration that the Federal Government of Nigeria through the NFIU or any agency of the Federal Government lacks the power to issue any directive, guideline, advisory or any instrument howsoever called for the administration and management of funds belonging to Kogi State of Nigeria or any Local Government Area of Kogi State.

“A declaration that the EFCC, the NFIU or any agency of the Federal Government of Nigeria cannot investigate, requisition documents, invite and/or arrest anyone with respect to offences arising from or touching on the administration and management of funds belonging to Kogi State of Nigeria or any Local Government Area of Kogi State.”

AGF’s Counterargument

The AGF in his counter affidavit, opposed the suit, arguing: “The National Assembly does not need the ratification or concurrence of the plaintiffs’ Houses of Assembly to pass the EFCC Act, ICPC Act, NFIU Act, the Proceed of Crime (Recovery and Management) or any anti-corruption Act or statute into law.

“The investigation to expose the commission of economic crime by EFCC, ICPC and the NFIU is not an interference with the powers of the plaintiffs’ government or the state House of Assembly.

“The NFIU Act not only empowers NFIU to make guidelines but also to strengthen existing measures of combating money laundering, terrorism financing and proliferation financing (AML/CFT/CPF) which is the intendment of the guidelines.

“The issue surrounding the powers of the NFIU to make guidelines affecting the states has been finally determined by the Court of Appeal in the judgment in Appeal No: CA/ABJ/CV/822/2022 delivered on May 21, 2024, in a suit instituted by the plaintiffs and other states of the Federation wherein they challenged similar guidelines before the Federal High Court in suit No: FHC/ABJ/CS/563/2019 and lost.

“The Court of Appeal, affirmed the decision of the trial Federal High Court against all the plaintiffs in that suit, including these present plaintiffs, who have not appealed further.
“The claims by the plaintiffs are not in conformity with the principles behind the guidelines initiated by the NFIU aimed at curbing corruption and the menace of money laundering/terrorism financing in Nigeria and also to bring more transparency in every’sector of the Nigerian economy in line with global best practices.”

CJN’s assurance

Meanwhile, Nigerians are optimistic that the apex court would rise to the occasion as it did on many occasions in the past.

This hope is strengthened by the inaugural speech of the new head of the judiciary, Justice Kudirat Kekere-Ekun, where she said: “Under my leadership, the judiciary would adhere to the principles of honesty, transparency and integrity and that independence of the judiciary is always a topical issue at the Supreme Court. For instance, our judgments are free from external influence. While it is essential for the judiciary, as the third arm of government, to maintain good working relationships with the executive and legislative branches, this should not be misconstrued as subservience.

“This is a new dawn and a new era in the Nigerian Judiciary. I wish to assure my fellow Nigerian citizens that we are committed to working more diligently to improve public perception of the Nigerian judiciary.

“Over the years, various factors have contributed to the negative image of the Judiciary. However, we are determined to change this narrative and make the Judiciary a source of pride for all Nigerians. When the legal compass of a nation falters, everything suffers, including public and international perception.”