Corruption has to be fought legally and constitutionally. The approach, as it is, however seems to be a battle between the federal government and State governors.
This led Governors of 16 states to remain dogged in pursuit of their stance that the Federal government cannot and should not control funds duly and lawfully appropriated by their respective Houses of Assembly. The states comprising Kogi, Katsina, Kebbi, Sokoto, Jigawa, Oyo, Benue, Enugu, Plateau, Cross River, Ondo, Niger, Edo, Bauchi, Taraba, and Imo feel justifiably so to the extent of challenging the constitutionality of the laws that established the Economic and Financial Crimes Commission (EFCC) and ICPC. The Contention of the Plaintiffs in Suit No SC/178/2023 is that the Federal Government cannot under any guise control funds appropriated by Houses of Assembly of the Plaintiffs.
Former President Olusegun Obasanjo had recently stated that the creation of the Independent Corrupt Practices and Other Related Offences Commission, ICPC, and the Economic and Financial Crimes Commission, EFCC, were part of his policy moves to convince Nigeria’s creditors to write off the nation’s staggering debts.
Obasanjo highlighted the challenges he faced upon assuming office, including Nigeria’s debt servicing burden of $3.5 billion annually and a total debt of approximately $36 billion, while the nation’s reserves stood at a modest $3.7 billion. He emphasised that presenting a credible and transparent plan was key, as global financial institutions required assurances that forgiven debt would foster positive development outcomes.
Summarily the feeling is that being ‘a product of convention’, the EFCC and other crime-fighting initiatives were not well founded. It is even believed in certain quarters that the UN Convention that reduced this into law, particularly the provisions of Section 12 were not followed. The governors are equally challenging the foundation of those laws that created NIFU, EFCC, etc., in order to avoid creating a constitutional crisis.
The Federal Government, through the Attorney General of the Federation, Mr Lateef Fagbemi is however urging the Supreme court not to deviate from the previous judgment it delivered on the same matter that was brought before it, stressing that the court must strike out the suit in its entirety.
“The UN Convention may have expired, but we did not enact this law because the UN Convention required us to. Section 15, subsection 5, states that the state must abolish all corrupt practices and abuses of power,’’ according to his summation.
However, the state governments, in their suit, argued that the Supreme Court, in Dr. Joseph Nwobike vs. Federal Republic of Nigeria, state had held that it was a United Nations Convention against corruption that was incorporated into the EFCC Establishment Act, and that in enacting this law in 2004, the provisions of Section 12 of the 1999 Constitution, as amended, were not followed.
They contended that in bringing a convention into Nigerian law, the provisions of Section 12 must be complied with.
According to the plaintiffs, the provisions of the Constitution necessitated that the majority of the states’ Houses of Assembly agree to incorporate the convention before passing the EFCC Act and others, which was allegedly never done.
The argument of the states in their present suit, which had reportedly been corroborated by the Supreme Court in the previously mentioned case, is that the law, as enacted, could not be applied to states that had not approved it under the provisions of the Nigerian Constitution.
Hence, they argued that any institution formed under these laws should be regarded as illegal.
Understandably, before the decision of the Supreme Court, there was intense lobbying over the last weekend for states to withdraw the suit. The heat is on the Supreme Court judges and apparently the pressure was heavy enough to force Benue Governor to suspend his Attorney General some states chickened out , leaving just 16 of them to continue the pursuit .
It is believed that the federal government, knowing that the law that established EFCC, ICPC and others are not domesticated, want it to stand while the states are insisting that the law is against the spirit of 1999 Constitution, should be scrapped.
The Plaintiffs are also contesting 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 Plaintiffs are therefore 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.
For instance, 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. But the position of the Plaintiffs in the suit is that the EFCC Act arising from the UN Convention, being an item not contained in the exclusive legislative list, recourse should have been had to States as stakeholders in the Federation in line with Section 12 of the 1999 Constitution.
The 1999 Constitution is very clear on the areas the National Assembly has exclusive preserve to make laws, the areas the States have and the areas both the National and State assemblies share legislative powers.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. Failure to comply with Section 12 of the Constitution before the enactment of the acts was fatal.
The Defendant to 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. By this, they meant that compliance with Section 12 of the 1999 Constitution was not necessary for the validity of the Acts. This becomes the crux of the raging argument as the Federal government is indirectly implying that the findings of the Supreme Court in Nwobike V. Federal Republic of Nigeria that the UN Convention gave birth to the Acts was not relevant.
As things stand, eyes are blinking on both sides as the nation waits for the pronouncement of the Supreme Court