Lawyers and renewed call for EFCC reform
Recently, the newly elected President of the Nigerian Bar Association (NBA), Mr. Abubakar Mahmoud (SAN), in his inaugural address in Port Harcourt, Rivers State called for the reform of the Economic and Financial Crimes Commission (EFCC) to enhance its capabilities to deliver on its mandate.
Mahmoud said doing so would enable the anti-graft agency to perform on a consistent and sustainable basis devoid of political interference.
The idea is that such would produce a well established institutional safeguard to check wide discretionary powers involved in investigation and prosecution of criminal matters.
To the NBA President, combining investigative powers with prosecutorial powers in one single agency, is the exception rather than the norm, which suggests that the EFCC should be left with investigative responsibilities only.
Mahmoud also stated the commitment of the NBA to promote healthy public debate about the capabilities and performances of all criminal justice agencies.
However, the EFCC rejected the proposal suggesting the agency be stripped of its prosecutorial powers, saying the call is “self-serving” and aimed at creating ‘a cabal of untouchables’.
Second Vice President of NBA, Mr. Monday Ubani said the call was not borne out of selfishness. He said: “I think the president of NBA was asking for specialization on the part of EFCC. It was not a selfish request and so the attack on the president of the NBA was uncalled for.
According to Ubani, the idea of having prosecutorial powers assigned to another agency is not a bad idea if and only if, the motive is to ensure efficiency and specialization in the process.
“It is a fact that sometimes when an agency investigates, the tendency to prosecute whether there is evidence or not is very high. Therefore, to create detachment and ensure that prosecution is undertaken only when the evidence is solid is the reason behind the suggestion that investigative and prosecutorial powers should be separated.
“Beside all these, there is nothing wrong in interrogating public funded agencies to ensure that there is improvement in their operational capacities. That reason may have accounted for the recent public debate which was engineered and initiated by the inaugural speech of the new NBA president. But the purpose is to generate ideas that will improve operational efficiencies of our public institutions and this should be applauded and not condemned.
“In all, we seek that institutions like EFCC should be very independent and efficient in handling corruption cases in Nigeria in order to save Nigeria from total collapse. Time is not on our side”, Ubani warned.
Also, a senior advocate of Nigeria, Abiodun Owonikoko, said the NBA president is the clearing house for aggregating the collective views of the bar. In concurring with the idea, he declared: “I am unlikely to improve on the case made with respect to the proper and more efficient allocation of prosecutorial powers and discretion vested in EFCC since the president has spoken.”
Owonikoko insisted that the suggestion does not appear to have been made out of a sinister motive. “To the best of my information, NBA president did not make that suggestion out of jurisdictional envy of the agency; rather it was an honest critique of the extant state of affairs, where the agency appears to be overwhelmed by overload of responsibilities.
“The same EFCC investigates and prosecutes all manner of offences, answering to description of economic crimes, terrorism and corruption at every level of governance from local government to federal and in addition private sector as well as sensitive security offences of terrorism. That is apart from its investigation of crimes having international dimensions based on Interpol requests,” he noted.
He wondered why one should not consider the agency as heavily burdened by the yoke of over-extended powers, saying despite all these pervasive remit, the EFCC is also the coordinating agency for all anti-corruption bodies including the Independent Corrupt Practices Commission (ICPC).
“How on earth, even with the best of intentions could such an agency operate optimally and efficiently?” Owonikoko questioned.
“The result is that the agency has been reduced to an inquisitorial behemoth condemned to media trial of suspects. Clearly handicapped by its limited resources and in-house under-capacity, it’s response has been to farm out serious high profile prosecution to external private legal practitioners by implied fiat of the Attorney-General of the Federation and of states.”
He further identified the limited capacity of the Agency’s prosecuting counsels as one of the effects of overload of responsibilities. His words: “The result so far is that prosecuting counsels lack facility to exercise robust professional discretion which a public prosecutor can be expected to take into account before preferring charges on a proper cost benefit judgment. Cases are filed based on instructions without proper pre-trial filter to SWOT-evaluate prospect of conviction.
“A state counsel is evaluated for career progression based on his prosecutorial efficiency – for a private prosecutor, he’s just an independent contractor whose brief is primarily for commercial remuneration.”
The SAN also pointed out some evidence of disconnect and outcome deficiency in the present arrangement of the agency. “Of course, it is arguable whether the EFCC Act as presently enacted requires an amendment to achieve the proposed steamlining of investigation and prosecution functions. That is a concern which the AGF might have identified in setting up a special and dedicated team of private prosecutors as he’s empowered to do constitutionally. Even under section 43 of the EFCC Act vested express oversight power on the AGF on the exercise of prosecutorial powers conferred on the EFCC by the Act.”
Owonikoko submitted: “It is a failure to appreciate the structural logjam that one can attribute the unfortunate and tempestuous attack of the NBA president and lawyers generally by the acting EFCC chairman. If he’s already so set in his ways and unwilling to learn for improved discharge on his mandate, questions may be asked as to whether his pending confirmation before the National Assembly will add value or take the agency to higher level.”
Another senior lawyer, Mr Seth Amaefule is of the view that the agency undertakes the same function as the Police. He said: “The police also carry-out the responsibilities of investigation and prosecution and if police can do that, I see no reason the EFCC should be overburdened by such similar responsibilities.”
He lamented that there are circumstances when the agency swooped on perceived enemy of any incumbent government and wondered whether investigations are well conducted and established before suspects are charged to court.
“What I think must have informed the call to strip the EFCC of prosecutorial powers is that the operative is not only been overburdened, but oppressive.
They are supposed to conduct their responsibilities of investigation and prosecution independently without allegiance to the existing power,” he said, urging the Agency to conduct their responsibilities as an independent body.
But an Enugu based lawyer, Ifeanyi Okumah thinks differently. He viewed the statement by NBA President from two angles – objective and realistic views. “Objectively, the statement is right in a model and civilized society. In this society the EFCC should concentrates on investigation of crimes and afterwards pass the prosecution of the crime to the judiciary department of the federal or state government or any agency created for it as the case may be. By so doing, it will allow EFCC to carry out investigations and arrests of offenders leaving the other department or agency to focus with trial and conviction of the offenders. This is the model applicable in places like USA, UK etc.,” he suggested.
But if viewed from the realistic point, Okumah said the NBA president’s statement would not be right or made in good faith. “In a poor organized society like ours, to do so would be to further create another platform to embed corruption and bottlenecks,” he stated.
He explained further that assuming the EFCC investigates and is to hand over to another agency for prosecution, that other agency would become another platform to decide who to take to trial or not.
“This becomes another conduit for corruption that if not properly controlled, the investigated offender can bribe his or her way out at this level. What we get will be one agency pitted against another on who is responsible for the failure to get corrupt offenders jailed,” he argued.
According to him, the EFCC ought to be further strengthened with more legal practitioners employed and trained to obtain convictions against investigated persons.
“The practice where the police investigates and the Attorney General’s offices prosecute cases in our courts, naturally comes to mind. Complaints of lack of proper investigation and proper prosecution, leading to slow pace of trials, poor returns on convictions as well as trading of blames between the two should not be passed over to EFCC,” he concluded.
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