Can EFCC’s existence survive a legal challenge?

Can the Economic and Financial Crimes Commission (EFCC) survive a legal challenge to its existence? I seriously believe it will not. This is because Section 214 of the constitution of the Federal Republic of Nigeria has not been amended to accommodate other agencies in the fight against crime, which has social, economic, financial and political dimensions. Section 214(1) of the Constitution (as amended) says: “There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section, no other police force shall be established for the Federation or any part thereof.”

Despite the clear provisions of Section 214 of the constitution, the National Assembly went ahead in Section 8(5) of the EFCC (Establishment) Act 2004, to provide thus: “For the purpose of carrying out or enforcing the provisions of this Act, all officers of the commission involved in the enforcement of the provisions of this Act shall have the same powers and privileges (including power to bear arms) as are given by the law to members of the Nigeria Police”. From the foregoing, it is clear that the existence of the EFCC at this time is in jeopardy because Section 1(3) of the constitution (as amended) insists that “If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail and that other law shall to the extent of the inconsistency be void.”

At the moment, there is a case instituted at the Federal High Court, Abuja, challenging the existence of the EFCC. In the case with suit No. FHC/ABJ/CS/386/10, filed on May 28, 2010, Mr. Nkemjika, a researcher and co-author of the book, Oil Exploration in Northern Nigeria: Problems and Prospects, is asking the court to declare that the powers granted the EFCC in sections 6, 7 and 8(5) of the EFCC (Establishment) Act 2004, breaches the provisions of sections 120(3), 125(2), 128 and 129 of the 1999 Constitution of the Federal Republic of Nigeria. He is also asking the court to nullify the entire EFCC Act because having regards to the provisions of sections 1(3) and 214 of the constitution, the National Assembly does not have the power to promulgate such a law.

The reaction of the then Attorney-General of the Federation, Mohammed Adoke, to this case, was to file a preliminary objection on only one ground, and that is that his office should not be joined in the matter because “The question in the originating summons can be effectively and completely settled in the absence of the 2nd defendant, which is the Attorney-General of the Federation.” Of course, Mr. Nkemjika, in his “Reply to the preliminary objection of the 2nd Defendant”, through his counsel, argued that “The court cannot strike out the 2nd defendant for mis-joinder. This is because the 2nd defendant is the Chief Law Officer of the Federation and cannot be running away from defending the propriety or otherwise of an Act promulgating the establishment of the 1st defendant, EFCC, which, pursuant to Section 174 of the 1999 Constitution (as amended), is directly under her supervision as Chief Law Officer.”

The issue now is that after long adjournments and what looked like an abandonment of the case, Mr. Nkemjika has instructed his new counsel, Mr. Udoka Oguekwe Esq, to apply to the Federal High Court, Abuja, to re-list the matter for adjudication, as well as seek “an amendment to the Originating Summons to also include the Independent Corrupt Practices and other Related Offences Commission (ICPC) as one of the defendants in the case”. And this is the crux of the matter. What happens should the courts go ahead to nullify the entire EFCC Act since there is no evidence anywhere that Section 214 of the constitution has been amended to accommodate other agencies, outside the Nigeria Police Force, in the fight against crime?

If the court declares the EFCC a nullity, all the cases it is investigating and prosecuting will die a natural death. Even the concluded ones that have sent some offenders to jail would become a nullity. In that circumstance, all those who have been jailed by the EFCC, including the ex-governors and other politically-exposed suspects it is currently investigating and prosecuting will have the right to sue its officials and the Federal Government for using an illegal entity unknown to the supreme law of the land to harass, arrest, detain and prosecute them in court. Where will the government get the money to pay for these damages? The situation would be a very uncomfortable one for President Buhari and his anti-corruption war.

As a matter of fact, it may not even be possible to amend Section 214 of the constitution at this time in order to accommodate the EFCC in the fight against crime. I do not see how the current Senate (Red Chamber), led by Dr. Bukola Saraki, and peopled by most ex-governors being harassed by the EFCC, will agree to amend the constitution so that the anti-graft agency would no longer have any constitutional constraints to deal with them. The situation is such that even if Mr. Nkemjika were to file a fresh case in court to nullify the entire EFCC Act today, nobody can legitimately charge him for being used by corruption to fight back. After all, he instituted this case more than five years before Buhari became the President of Nigeria in May 2015.

• Barr. Udeze wrote from Maitama, Abuja.