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‘Creation of EFCC an aberration to the Nigerian constitution’

Okeke

Okeke

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.



16 Comments
  • Godson Faithful

    What is this Lagos-Lawyer saying? Probably he got his degree online.

    • absam777

      Just another candidate for the stupid SAN. Online degrees can be good. This one got his law degree from University of Aba or Okrika,

      • Marcus Ijele

        Can you give a superior response to the issue on discuss? It is always the habit of a coward to make so much noise to avoid physical combat. So also a man who lacks wisdom to address issues starts with quarrel so that instead of speaking facts,he encumbers the people with settling of disputes. You are insulting the Lawyer who wisely infers that there should be separation of power touching investigation and prosecution,whilst you have no better suggestion to give. If you are at all learned as you would want this forum to believe, you would have said something better than his. Would you ascribe that the man who investigates you also prosecutes you? Do you think you will get justice? Investigation is vetted,facts of the investigation are checked. Some investigations usually have elements of bias. It is during prosecution that ambiguities are sorted out from the investigation and thrown away or corrected. When EFCC investigates and prosecutes, tendency for miscarriage of justice will certainly be there. There you are exhibiting your crass ignorance. If he an online degree Lawyer, I appreciate and would want to have such. Till you satisfy us with better suggestions, he is better than you.

        • absam777

          I will ignore your diatribes and focus on your thoughts in writing. I quote: “Would you ascribe that the man who investigates you also prosecutes you? Do you think you will get justice? Investigation is vetted,facts of the investigation are checked. Some investigations usually have elements of bias.”

          The man that investigates has the facts to prosecute. It is as simple as that. How nitwits like you can not see through the NBA president’s proposal beats me. He was drumming up job for the boys and not seeking justice. Afterall, EFCC is not part of the judiciary, so where did you get your idea of miscarriage of justice? The miscarriage of justice is when the so called SANs bride judges, as we now know, obstruct justice as in the case of Agabi and settle cases in judges’ chambers.The miscarriage of justice is when lawyers are using technicalities to scuttle and delay cases rather than argue their briefs.

          I expect anyone seeking justice to postulate a jury system in Nigeria. Only then can we know who are good and bad lawyers. I hope you are not the later , like the majority of lawyers in Nigeria?

          • Marcus Ijele

            You are a total invalid in Law of criminal investigation. You investigate and submit your facts/report to the prosecutor and stand as an investigative witness. You actually need some lessons,but pride will not allow you submit to that. Terrible how one can be proud in foolery.

          • absam777

            Since you’ve pontificated here that you know the law, can you tell us who has been prosecuting all along, while the EFCC investigate? Are they not lawyers? More so, they are private lawyers hired to do the job on behalf of the EFCC.
            So what is your point and that of your NBA president? In the UK where the Nigeria’s legal system originated, the job of Solicitors and Barristers are separated. And it remains so to date, but for some resent exception. But in Nigeria, all lawyers operates as both solicitors and barristers, once you attend the law school. That is another area the NBA President could have looked into for a better delivery of justice Like I said, you must be one of the poorly trained lawyers in Nigeria. Now we know who is the fool between us.

          • Marcus Ijele

            Hahahahahahaha,that is all that you deserve.

          • Ugochi Eustace

            Whatever misgivings you may have against the NBA president, what he and Mr Okeke stated is the correct legal procedure in our constitution and in other climes; both under the common law adversarial system or the civil law inquisitorial system. In the UK which you alluded to, the police conducts the investigation and passes their findings and evidence to the crown prosecution service (cps), whose duty it is to review details of the investigation and decide whether the strength of evidence is, in their opinion, capable of securing a conviction. It is the same in other common law jurisdictions like USA, Australia, Canada, South Africa, Kenya etc. Even in civil law jurisdictions like Belgium and France they equally maintain this other layer where the Senior Crown prosecutor, or Procureur du Roi receives investigation report from the police and decides on its suitability for prosecution. This ensures transparency in the legal apparatus and also ensures that the state does not waste time and resources in prosecuting frivolous cases of which it has only scanty evidence and which would ultimately collapse under scrutiny in court. How many of EFCC cases, would you say, fall within that ambit? Or why so many of our courts are so congested with cases that are not supposed to be there and simply clogging the wheel of justice? Think about how many people are languishing in police detentions because of lack of evidence to prosecute them? In other climes, where enough evidence to prosecute is not available, the prosecutor (Attorney General, in the case of Nigeria) would order their release, not the current practice of the police and EFCC where people are detained before searching for evidence to prosecute them. Marcus Ijere was also right when he said that the duty of the investigator (police and/or EFCC) is to ‘… investigate and submit your facts/report to the prosecutor and stand as an investigative witness.’ The fact that EFCC has been hiring private lawyers to carry out prosecution duties for it, does not make it right and does not ensure best practice. Thus, if the new NBA president spots a practice which does not conform to our constitution, he has the right to point it out and seek to re-align it accordingly. Finally, I did not understand what point you wanted to make by referring to the UK’s separation of duties of Barristers and Solicitors, but just for a bit of clarity, UK is the only jurisdiction that still uphold that practice in the whole world today and they are already in the process of changing it. Today, many UK Barristers perform some Solicitors duties and vice versa.

            With a little bit of humility and respect we can all learn from or even disagree with each other’s views, without insults and name-callings. That’s a mark of civility.

          • absam777

            First, we must always appreciate that respect begets respect. Mr Marcus was very condescending in his contribution. He since realised his wrong footing and choose to laugh his way out. However,your contribution is illuminating but not necessarily convincing. Let start with your submission and I quote: “This ensures transparency in the legal apparatus and also ensures that the state does not waste time and resources in prosecuting frivolous cases of which it has only scanty evidence and which would ultimately collapse under scrutiny in court.” Four key words here ‘shouts’ for mercy. Transparency,waste, time and resources’ .
            First, How can combining the investigation and prosecution, albeit by lawyers and not the police be a waste of time and resource? Second, what transparency do we enjoy when SANs are cutting deals and corners with the judiciary? The NBA (SANs group) as it stands has lost every respect that it deserves.( The Saraki’s case is a good example of SANs rascality) I guess Luminaries such as FRA Williams and Gani would be rolling in their graves when they learn about the antics of the so-called SANs.
            You have rightly describes the separation in the judiciary systems in the UK and Europe. But who says that we cannot have our own system if it works for us? If we are to adopt the British system, we must also have everything, including the jury system, The current EFCC is working because there is no interference from the oga at the top. I am on the side of those who want the EFCC to be independent or placed under the Attorney General’s office. I am not against a trade union which is what the NBA

          • Ugochi Eustace

            All this boils down to distrust that now exist, not only in the judiciary but in every fabric of our society due to corruption. Everyone wants to hold sway and protect avenues by which they could corrupt the system for personal gains. Transparency and fairness becomes an obstacle against parochial goals. EFCC does not trust the integrity of the set of prosecuting lawyers (Attorney General’s office) and lawyers from that office do not trust the integrity of the EFCC and their hired prosecutors. Sad as it may be, it is the lamentable reality of our system, however the only way to wrestle that ‘bad blood’ is not to allow it to fester. It can only be achieved by remaining steadfast to the dictates of the constitution which has prescribed duties and functions for each of those bodies and also ensuring that action be expedited to clarify and disentangle any cross-over of roles. The EFCC, in the interest of legal certainty, due process and entrenchment of fairness in our laws, should not be seen to usurp the Attorney General’s office. If the constitution states that the EFCC should investigate a case and thereafter hand over to the attorney General’s office to prosecute, EFCC cannot say ‘because I gave you this and that case and you did not prosecute them to my satisfaction, I will step up to your office and start doing it myself’. The Attorney General’s office should supervise investigations of the EFCC and not the other way round. I accept that it could potentially lead to untoward practices but so also the practices of a body that would not submit itself to anybody’s vetting. Following due process should be for everyone and every organisation because when one organisation repeatedly circumvents the constitution, it sets a bad precedent, especially when that body is one charged with revamping law and order through fighting corrupt practices.

          • absam777

            You have said the right things but your blames are in the wrong place. The weakest points in the whole saga is the constitution itself and the NASS. Let’s start with the later. If you have a group of self-ish and good-for -nothing people as representatives and senators, obviously the executive and the judiciary will be lawless. What you’ve postulated will only work were the checks and balances are strong. Unfortunately, we have a house of assembly where the members are only interested in the latest car and their wardrobe allowance They are not in the service of making the law work. As for the constitution, we have inherited a military act that gives order but not follow orders. The military and their cohorts in the NBA deliberately designed the constitution so that only a strong oga at the top can enforce it. That is why it will appear that the only time the EFCC is working is when a president with military background is in charge. EFCC is not the problem of the country. It is the law maker and defenders (lawyers) that are in need of reorientation. I sincerely doubt if this will ever happen when you have a President of NBA who is only good at playing to the gallery. In my part of the world, NBA should be lobbying the NASS to effect a change not campaigning against EFCC when there is a war against corruption. That tells a lot on whose side he truly is.

          • Ugochi Eustace

            Yes, the constitution is not perfect and the National Assembly, even more so. This imperfection regrettably robs down on other of our institutions and governance apparatus but what will pitching one organ of society against the other solve? The constitution is all we have presently, so however imperfect it might be we have to make the best out of it. The way to do that is not by circumventing its provisions. There is no country in the world that has a perfect constitution, else there will be no need for constitutional reviews/reforms (hoping we get a truly legitimate one soon). I am not against the EFCC but they, like everyone else, should operate within their constitutional boundaries. If they are allowed to usurp the office of the Attorney General simply because there are some corrupt elements therein, would they also usurp the functions of the judge if some judges are found to be corrupt or unable to deliver a certain judgement in the way EFCC wanted? Would they therefore arrogate to themselves the duties of investigation, prosecution and judge or where will they stop? Granted, some members of the legal profession, who trooped behind Saraki, did not cover themselves in glory (and they were not all SANs), that is not enough justification to turn our legal system upside down or to ‘throw the baby away with the bath water’.

          • absam777

            Your assertion that the EFCC is usurping the role of the Attorney General’s office is still in my opinion the accusation of vested interest and not that of justice or boundaries. As we currently have it,the office of the minister of justice and the attorney general is combined into one. Why is the NBA not campaigning for the separation of these two important role and functions of law and order? This is more important than the campaign against the EFCC. As long as we don’t have police officers from the EFCC handling the prosecutions in the court, the issue of criminal prosecution from the EFCC should continue.After All, you have said it: no system is perfect

          • Ugochi Eustace

            You return to support the very postulation of Mr Okeke that you were deriding, viz; that the offices of the Attorney General should be separated from that of the Minister of Justice. Though that is a different topic which any organisation, the NBA or even you, as a good citizen of Nigeria can campaign for. However, it does not detract from holding to account the EFCC and indeed any organ that circumvents the constitution. It is good to first check what the constitution says are the duties of the Attorney General before you can make a sweeping generalization that ‘…assertion that the EFCC is usurping the role of the Attorney General’s office is still in my opinion the accusation of ‘vested interest’ and not that of justice or boundaries’. That’s mudslinging and a diversionary tactics from the topic. Check also how this same prosecutorial powers was delegated to the EFCC, at its inception, just the same way it was delegated to the police, up until recently. Be that as it may, you stated that it is your opinion and you are perfectly entitled to it. But I hope you can go back and read Mr Okeke’s interview again, more objectively. And I thank you though for being a bit more courteous, without which we would not have sustained this discussion this far. As I hope we will agree to disagree, have a Blessed Sunday!

          • absam777

            What I am deriding is the campaign of denigration of the EFCC by the NBA President and other lawyers like Mr Okeke. There are more important issues crying for change within the NBA, especially the abuse of their status and privileges. I have mentioned few in my previous discuss. As someone on this platform rightly said, EFCC was created by an Act of parliament and therefore working, only just now, unhindered according to the constitution, therefore all those oppose to their current approach to the service to our motherland should swallow their arrogance and cooperate with the institution. The question that non-lawyer, as you call us, laymen are asking is why the NBA President and others like him are seeking the head of the EFCC on the guillotine?. We obviously know why the sudden call and demand to reduce the power of the EFCC to play a less significant role in their fight against corruption. The NBA I believe would like the EFCC to be just like an ordinary police department that lawyers chew and spit our like goro.( Kolanut) The EFCC must be allowed to operate with maximum power like the FBI in the USA. Only when the untouchables like the NBA SANs and their rouge politician friends and clients are treated less with kids’ gloves can we see fairness and justices in the land. I appreciate and respect your sound opinion even when I do not totally agree with them.

  • Izedomi Ohirein

    This is corruption fighting back. Law is law. Typical, they are always happy to be used to cause confusion in Nigeria. They dream of Biafra utopia while messing up Nigeria.
    EFCC was set up by act of Parliament. No Court has questioned its legitimacy or set it aside.
    Any constitutional anomaly could be amended. EFCC is doing a good job.

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