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Proposed EFCC Act amendment: Genuine or politically motivated?

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Until Abubakar Malami (SAN) and Mr. Ibrahim Magu became the Attorney General of the Federation and the acting chairman of the Economic and Financial Crimes Commission respectively at the same time under the All Progressives Congress (APC)-led federal government, the imperative of amending the EFCC enabling Act has never been an issue. Although many Nigerians have criticised the modus operandi of successive chairmen of the anti-graft agency in prosecuting the war against corruption, amending its enabling law has not been in the cards.

For a fact, the AGF had in the past accused the EFCC boss of insubordination. Malami believes and rightly so that as a supervisory minister, he needs to oversee EFCC activities. For him, Magu was running a one-man show without substantially relating to his ministry. But Magu, it seems felt indulging the AGF would jeopardise the war against graft, giving the enormous powers constitutionally vested on the AGF to initiate or discontinue any criminal prosecution. So, he simply waived off the accusation of insubordination as long as he had the backing of Aso Rock.

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Now times have changed. He has been suspended from office and is a subject of the presidential investigative panel, following a petition written to the President Muhammadu Buhari by Malami, demanding that he (Magu) be removed from office for allegedly diverting recovered crime proceeds.  

While the investigation is still on, two things happened in quick succession. Malami formally launched the central database under the Asset Tracing Recovery and Management Regulations (ATRM), 2019, and the Central Criminal Justice Information System (CCJIS) under the National Anti-Corruption Strategy (NACS) 2017-2021.

During the launch in Abuja recently, Malami said his office is developing legislation for the full implementation and operation of the CCJIS.

The federal ministry of Justice, he said, would work with the Judiciary at all levels, and Anti-Corruption Institutions at both the states and federal levels, in addition to the Police to run the information centre real-time. He reassured stakeholders that his office is working on deploying technology in the criminal justice system across the federation.

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According to him, it is to enable the relevant stakeholders key into the 21st-century technology in Nigeria, which guarantees transparency and ensures there is accountability on the part of public officers.

He added that the database is a product of the government’s commitment to the fight against corruption. That, he said, is targeted at deepening transparency within the context of the United Nations Convention against corruption. “The database that will be put in place will ensure uniformity of process and real-time access and information feeding,” he stated.

The second thing that has happened during the pendency of Magu’s probe was the emergence of a bill to amend the EFCC (Establishment) Act, 2004 before the National Assembly. The chairman of the Presidential Advisory Committee Against Corruption (PACAC), Prof. Itse Sagay described the proposed bill as fraudulent and called on Nigerians and the National Assembly to reject it.

According to Sagay, the planned amendment was part of “an ongoing sinister and dangerous attempt to demolish the anti-corruption infrastructure of Nigeria and return it to the situation it was during the dark days.”

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The bill, he continually seeks to weaken the EFCC and its officials and confer an enormous power of control of the anti-graft agency on the office of the Attorney General of the Federation and Minister of Justice. “Those behind it are the representatives of the corrupt establishment that brought this country to its knees and subjected us to humiliation as a result of an extremely negative reputation internationally,” the scholar said, adding that the sponsors of the bill were so ashamed that they refused to add their names on it.

Charging Nigerians to reject the bill, Sagay highlighted some of the offensive parts of the proposed bill. They include: “Repeal of the current EFCC Establishment Act, which has been a spectacular success and has brought Nigeria into the limelight as a major force against corruption; the replacement of the Executive Chairman of the EFCC with a Director-General who is effective to be appointed by the Attorney-General. This eliminates the EFCC’s freedom and autonomy and replaces it with an entity under the complete control of the Minister of Justice and Attorney-General; the replacement of the Board of EFCC with Directors who are effective to be appointees of the Attorney-General; and the elimination of the position of the Secretary of the EFCC, a critical officer who serves as the institutional memory and the Administrative Head of the Agency.

“Section 11 of this proposed Act provides that nobody may be appointed or seconded to the new Agency being proposed unless he is first screened by the Directorate of State Security (DSS) and approved by the said Agency. Under the proposed Act the Annual Report of the EFCC is not to be submitted to the National Assembly until it has been passed through the Attorney-General for onward transmission to the National Assembly; thus making the Attorney-General the reporting officer of the Agency rather than the Chairman or the Director-General, as the new Bill is proposing.”

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Reacting to the issue, the managing partner at CLP Legal, Lagos, Mr. Okey Egbuchu said the proposed EFCC amendment bill appears ill-advised. “First, the EFCC is to an extent a product of the international community – the Financial Action Task Force (FATF). We must be careful not to act in a manner that will deprive us of at least the cooperation of like agencies in other countries,” he warned. 

Egbuchu recalled the pressure by the international community to make the Anti-Money Laundering Unit independent of the EFCC and wondered what their reaction would be if the amendment passes.

“The amendment seeks to bring the EFCC totally under the control of the AGF by giving him powers of appointment and some administrative and accounting oversight. Mind you, the Constitution of Nigeria gives the Attorney General essentially absolute powers over prosecutions, indeed the law enforcement agencies are already under him to the extent that they investigate and prosecute crimes. With these enormous powers, what more do the sponsors of the bill want for the AGF?” He asked.

Lagos lawyer, Nwachukwu Odoemela described as dramatic, the face-off between the two personalities. According to him, there have been underpinning facts unfolding from the probe of Magu following the AGF’s petition. “Granted, the prosecution power of the federation lies in the office of the AGF, however, the special skill with which the EFCC has, to my mind, is not available to the office of the Attorney General, most especially the investigative aspect. The bureaucratic bottleneck that characterises the office of the AGF is rarely non-existent in the EFCC mode of operation.”

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Odoemela noted that the proposed amendment ought to have been made public rather than bringing it through the backdoor. He called on the National Assembly and Nigerians to reject any amendment that would arrogate too much power to the AGF. What is needed, he said, is a robust amendment in the administrative mechanism of the EFCC, mode, and areas of the function of the agency such as the management and disposal of recovered assets.

In the words of Owerri based lawyer, Ike Augustine, the bill to amend the EFCC Act is an offshoot of the power play between the embattled former EFCC acting chairman and the AGF. “It is my humble view that the amendment to the EFCC Act, especially the part that tends to weaken the powers of the Commission is needless,” he said.

According to him, the AGF does not need any special power to control and supervise the activities of the Commission. The EFCC as an agency of government, noted is under the control and supervision of the AGF already. “The only solution to the whole loggerheads between the leadership of the EFCC and the AGF is to shun impunity and act within the precincts of the laws and rules without personal vendetta,” he stated.

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Expressing a contrary view, Prof. Edoba Omoregie of the National Institute for Legislative and Democratic Studies, National Assembly, Abuja said anti-graft agencies in the country should be constitutionalised to guarantee their autonomy. According to him, the best way to guarantee independence for anti-graft agencies such as the EFCC and the Independent Corrupt Practices and other Offences Commission (ICPC), is to constitutionalise their existence and grant them clear operational autonomy under the constitution. That, he said, is the best practice already operative in Tunisia, Hong Kong, and other jurisdictions.

“I don’t see the basis of the frenzied comments by Prof. Sagay. Already the Constitution empowers the AGF with authority to override all other prosecuting authority in criminal prosecution. I think the EFCC should as a matter of fact and logic, be under the supervisory authority of the AGF. On the strength of our constitutional law today, the mere statute cannot confer autonomy in a criminal prosecution on the EFCC,” he declared.

Concurring with Prof. Omoregie, Bar. Stephen Azubuike said laws are dynamic and as such, any amendment that would improve on the activities of the EFCC is welcomed. “As society changes, the law is expected to advance to meet the developments. The EFCC is one of the most active agencies of the federal government. The agency plays a pivotal role in the fight against corruption, financial and economic crimes. An amendment of the law establishing the Agency and spelling out its functions is always welcomed on the premise that it would guarantee the actualization of the main objectives of the Agency in the best interest of the country,” he told The Guardian.

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