‘Creation of EFCC an aberration to the Nigerian constitution’
The Economic and Financial Crimes Commission (EFCC) recently had a face-off with the Nigeria Bar Association (NBA) over the inaugural speech by the new NBA president, Mr Abubakar Mahmoud (SAN). Mahmoud had suggested that the anti-graft agency should be stripped of its prosecutorial powers. The agency was furious in its response, including the use of strong language, which triggered controversy between the two organisations. A Lagos-based lawyer, Chris Okeke, in this interview with JOSEPH ONYEKWERE, said the call to strip EFCC of such power is not out of place. He also spoke on other topical issues.
What do you think about the idea of removing prosecutorial powers from the EFCC?
It is not unusual in the sense that best practices and improved best practices all over have gone in the direction of separating investigation from prosecution, especially for a body like EFCC and considering particularly a number of things that have happened in recent times. So I share the view of the NBA President that EFCC should be stripped of its prosecutorial powers by way of a legislative amendment. This is because the law today is that EFCC has a delegated power to prosecute.
Are there jurisdictions where you have a body like EFCC exercising investigative powers and another body performing prosecutorial functions?
Nigeria as usual is novel in a whole lot of things. Ordinarily, the EFCC is the police. That EFCC is there is an aberration of the constitution. Ideally, it is police and Attorney General’s functions that they are exercising. Usually, in the context we are in now, police investigates crimes in Nigeria. Don’t forget the call over the years to separate the office of the Attorney General and the Minister of Justice. I think that is exactly what is playing out here. Frankly speaking, the police investigates and then the office of the attorney general prosecutes. If we take it properly as it should be, we should have a situation where the EFCC do the investigation and then turn it over to the Attorney general who will in line with the law make decisions as to the prosecution. It is not just a jurisdictional issue, but actually getting the law and things to run properly.
Now there is actually an anti-corruption sing-song and the EFCC perhaps in line with this narrative is insisting that there will be no sacred cows. So are you not concerned like the chairman of EFCC that if power is stripped off them and given perhaps to the Attorney General’s office, there might be politicisation of the prosecution whereby somebody who knows somebody might go scot-free even after
EFCC has finished the investigation?
What you are saying is like saying that the EFCC are superhuman but we know that they are not. If we are afraid that somebody who knows somebody in the office of the Attorney General can escape prosecution, by the same token, somebody who knows somebody can also escape proper investigation and prosecution in the EFCC. Don’t forget that EFCC is an arm of the police and operates essentially like the Police. It is like saying that the Courts did not work, that that is why tribunals were created, as if the tribunals and their personnel are supper men operating and applying super laws. What is consistently being said and I think is correct, is get the police to investigate; which is their core duty and allow the Attorney General to prosecute. It is also good to separate the office of the Attorney General from that of the office of the Minister of Justice. The Attorney General should be a core lawyer with a mandate on litigation and his mode of appointment should not relate to politics, while the Minister of Justice who may not necessarily be a lawyer should concern himself with the nitty- gritty and finer details of justice. He can be a politician and play the politics while the Attorney General must not be a politician.
But a statement from the Anti-Corruption Agency says the reasons the NBA president is making that statement is because there is an on-going trial of senior members of the inner bar and that if such is allowed and since the Attorney General is a member of the inner bar, he may not have political will to carry out the prosecution?
That is being petty. Number one, prosecution is different from conviction. Number two, That someone is convicted in the court of first instance does not mean he has exhausted the entire gamut of the appellate jurisdiction in our jurisprudence at his benefit and disposal. It is also not automatic that the person will loose all the appeals. To say that someone at the inner bar is working to shield himself from persecution is also speculative. I read what the learned NBA president said and it is not different from what many of us have being saying overtime: separate prosecution from investigation. That way you have a layer above the layer. It makes for certainty, it makes for fairness and makes it less prone for someone to becoming a victim of another person’s whims and caprices. That is what I understand the learned NBA president was talking about. I was taken aback when the statement was personalised by the response of the EFCC. The NBA president was talking on law and our constitution. The EFCC statement was personalised to the person of Abubakar Mahmoud SAN which for me is unfortunate.
So what do you make of the statement that NBA is made up of rogues?
That is another unfortunate statement in the sense that if you have a personal issue with the NBA president, it will be better you settle and respond to that issue. What Mahmoud raised is for the purpose of legal certainty and entrenching fairness deeper into our laws and remove somebody’s whims and caprices. Saying that Mahmoud did not secure the conviction of James Ibori and Peter Odili is patently cancerous. I had to read that EFCC statement severally and had great pity for myself, my country and for the institution of justice that a speech of that kind was issued from this body without weighing properly it’s implications on the greater and more noble concept of justice.
What do you think is the reason the agency was so upset about the suggestion?
The EFCC gave a couple of reasons for their statement. Number one, that Mahmoud, perhaps was saying so to hide himself. That they gave him cases in the past, which he did not deliver as they had expected. Clearly the language was bitter, suggesting that they were angry that he did not do as they had expected of him and they had not had the courage and perhaps opportunity all these years to confront him, and probably this now presented the opportunity for them to vent their anger on him. That is the first impression. They spent a lot of time dwelling on this. The EFCC left out the issue which is: will it serve the greater role of justice if these two functions are separated? After all, the Attorney General had issued a directive stopping the police from prosecuting, which is clearly what the NBA is talking about. Now if the police has been stopped from prosecution, which the EFCC is similar to, it means that the Attorney General has actually removed the power from the EFCC administratively, and I am sure soon, the issue will come up in court.
So how do you stop the police from prosecution when there is no replacement yet. I know they are mooting the idea of a National Prosecution Committee or Council which has not materialised as there is no legislation on that. So how feasible is such policy statement?
It is not a policy statement, but a matter of law. And the law is that the Attorney General’s office either at the state level or federal level are the only ones constitutionally empowered to prosecute. If the AG says do not prosecute again, it is not open for discussion. That is what the constitution has said.
The Independent People of Biafra (IPOB) has being in existence as far back as when we began the democratic dispensation in 1999 and we have not seen the level of crack down that we have seen on this group in recent times. So what has changed?
Personnel have changed.
Personnel of IPOB?
The personnel of those cracking them down; personnel of government. It is the change of guard.
So we have had change of guard from 1999 till now, so what is particular about this one?
Every guard has a different perception of how to do his work. The current guardians of our sovereignty hold the view that that is how they go about it.
So, is it justifiable in law to use maximum force to crackdown unarmed protesters?
It is unconstitutional. The constitution allows for peaceful protests. So the IPOB has an inalienable right to complain. It enures to them as man. Even if the constitution does not recognize it in Nigeria, the law of nature recognizes man’s right to complain and he cannot avoid it. So using maximum force on them when they are unarmed abuses their constitutional right.
Is military action against Niger Delta Avengers, who are destroying our national assets and oil installations justifiable?
It is said that discretion is the best part of valour. The law is that you can do this but your power is in your restraint. In all spheres of human endeavour, they are there. In judicial power, it is called judicial self restraints. You can do it but you restrain yourself from doing it and the cost for doing it dictates for you that there could be a better way of doing it. In political parlance, it is called discretionary use of power.
The group now says they are open to dialogue, do you think government should explore the option?
Yes! That has always been my view and I had expected all along that you don’t fight when you can talk. The problem in Nigeria is that we don’t take ideas seriously. We have this notion that knowledge in Nigeria does not pay. That is why this things are the way they are.
Boko Haram sect recently released a purported video of the Chibok girls asking the government to release their detained members in exchange for these ladies. Do you think that’s a wise thing to do?
I am not in the military and I don’t have access to military information but from the point of where I stand, I don’t see logic in it. These girls have been away for a long time. I doubt strongly that with the photographs of many years ago, the few snippets of information we have heard indicate that these girls are now mothers with children and most of them most likely handed to war commanders as wives. So how do you get them? How do you confirm that they are even there at all? But it looks to me that someone is playing a game somewhere.