S’court dismisses states’ suit challenging legality of EFCC

The supreme court has dismissed the suit instituted by 16 states of the federation challenging the constitutionality of the act establishing the Economic and Financial Crimes Commission (EFCC).

Delivering judgment on Friday, Uwani Abba-Aji, who led a seven-member panel of justices, ruled that “the EFCC Act, which is not a treaty but a convention, does not need the ratification of the houses of assembly”.

BACKGROUND

The suit challenging the legality of the EFCC was initially filed by the Kogi state government. Subsequently, 15 states applied to join Kogi in the suit.

The states argued that the national assembly failed to adhere to section 12 of the 1999 constitution (as amended), which governs the incorporation of international treaties into domestic law, in the enactment of the EFCC Act.

They further maintained that domesticating a convention requires the approval of a majority of the state houses of assembly — based on the provisions of section 12 of the constitution.

They added that the procedure for domesticating the convention was bypassed in the process of passing the EFCC Act and similar laws.

They posited that the EFCC Act cannot be applied to states that did not consent.

The applicants had also challenged the powers of the Nigerian Financial Intelligence Unit (NFIU) and the Independent Corrupt Practices Commission (ICPC).

They sought a declaration that the “federal government, through the NFIU, lacked the power to issue any directive, guideline, advisory, or any instrument howsoever called for the administration and management of funds belonging to the state”.

They also sought a declaration that the “EFCC, NFIU, or any agency of the federal government cannot investigate, requisition documents, invite, or arrest anyone for offences arising from or touching on the administration and management of funds belonging to the state”.

In the days that followed, six states — Adamawa, Ebonyi, Anambra, Jigawa, Benue and Enugu — withdrew from the suit.

THE JUDGMENT

The seven-member panel of justices dismissed the suit for lacking in merit.

“Let me first look at the constitutional provision. The plaintiffs rely on Section 12 of the constitution in their argument. Treaty is an agreement reached by two or more countries which has to be ratified,” Abba-Aji said.

“Convention: Conventions are agreed by a larger number of nations. Conventions only come into force when a larger number of countries agree.

“Therefore, the EFCC Act, which is not a treaty but a convention, does not need the ratification of the houses of assembly.

“A convention would have been ratified by members state and the NASS can make laws from it, which will be binding on all the states in Nigeria as it is the case of EFCC Establishment Act.”

The apex court held that the NFIU guideline had not contravened the provisions of the constitution on the funds of states.

“In a country like Nigeria, the federating units do not have absolute power. The NFIU guideline is to present a benchmark and not to control the funds,” the court held.

“Where an Act of law is made by NASS like the NFIU and its guideline, it is binding on all. Any Act that has been competently enacted by the NASS cannot be said to be inconsistent.

“Where the NASS has enacted several laws on corruption, money laundering, etc, no state has the right to make law to compete with it. The investigative power of the EFCC cannot be said to be in conflict with legislative powers of the state assembly.

“I must agree with the AGF that the plaintiffs’ argument, that is, the houses of assembly of the plaintiffs states, is not tenable in law.”

At the commencement of the ruling, the court dismissed all objections of the federal government against the suit filed by the states.

Abba-Aji said since the plaintiffs’ case was against the attorney-general of the federation and not any of the agencies mentioned, the supreme court can assume jurisdiction to determine it.

“Since the AGF is assumed to be the chief law officer of the federation, he is by all means the proper and necessary party,” the court held.

“The AGF has locus standi to institute action against anyone and the AGF can be sued in any civil matter against the government.

“It is clear that the federal government has legal tussle with the states based on the directive of the NFIU which the states are contending.

“The preliminary objection is hereby dismissed.”

Speaking to journalists shortly after the judgment, Abdulwahab Mohammed, counsel to Kogi state attorney-general, said: “This is an issue we have raised before the federal high court, it was not addressed”.

“We raised it at the appeal court and was not addressed. This is going to enrich our jurisprudence. We thank your lordship for hearing us out,” he added.

Rotimi Oyedepo, who represented the AGF, said: “We convey our gratitude to the court for your wisdom. Your lordship has permanently settled the legality of the anti-corruption agency in fighting corruption”.