A former President of the Nigerian Bar Association, Olisa Agbakoba (SAN), has said that the Economic and Financial Crimes Commission should not have been in existence, stressing that the commission currently operates outside the Constitution.
Agbakoba stated that since the EFCC is a creation of the National Assembly, it does not have the power to interfere with the activities of state governments.
The lawyer, who stated this on Thursday at a press conference in Lagos, maintained that the 1999 Constitution only provides for one police force for Nigeria, adding that since the anti-graft agency is not a branch of the police, it could not perform its functions.
He pointed out that the EFCC was a federal establishment created by the National Assembly, adding that under Section 4 of the 1999 Constitution, the powers of government are divided into two: the Federal and the state.
He said, “The question would be if the EFCC is created by the Federal Government, can it then prosecute state offences?
“The Supreme Court in many of its decisions has held that federalism means two autonomous and independent governments and if that is correct, the EFCC does not have the right to go to the states and examine their accounts.
“Anybody can read section 46 of the EFCC Act and Section 36(12) of the 1999 Constitution. Section 36(12) states that all offences must be defined and specified when you now read Section 46, you ask yourself if it complies with Section 36(12). It doesn’t.
I have asked myself in my research, is the EFCC a police force, is it an intelligence agency or is it a security agency? I have looked at the definition of what the Police Force might be. The police force is that which investigates and detects crimes stops crimes and sometimes prosecutes. That is the core function of the police force.”
Agbakoba said since Section 214 of the Constitution says there shall be only one police force and the EFCC is performing police functions, “then one of my prayers in court would be that EFCC ought not to exist in the first place because it is not a branch of the police and that the job done by the EFCC is the same one being done by the Police’s Special Fraud Unit.
My other prayer would be whether the National Assembly can make laws for the federation and to what extent can the National Assembly which is an arm of the Federal Government make laws authorising a federal agency to exercise powers as if it were a state agency.”
Agbakoba added that he is not fighting the commission as he is one of the greatest supporters of the rule of law and the fight against corruption, noting that the real issue is about the failure of the security agencies to obey the rule of law.
In an interview with The PUNCH, another senior advocate, Mr Ebun Adegboruwa, backed Agbakoba on the issue.
Adegboruwa said, “All the people in the EFCC who are working are regular policemen who were drafted from the existing police force. So it is a matter of training and empowerment.
“If the facilities, money and training available to the EFCC are available to the police, I am sure probably they will do better. So I have reasons to believe and agree with Dr Agbakoba that too many agencies of government are being duplicated.”
But Norrison Quakers (SAN) disagreed with them, saying that the EFCC is separate and distinct from the police because the law that established it empowered it to investigate and prosecute financial crimes.
Similarly, Mr Wahab Shittu (SAN) faulted Agbakoba and Adegboruwa.
He said the EFCC and the Independent Corrupt Practices and Other Related Offences Commission were created specifically to tackle corruption.
When contacted on the telephone, the EFCC’s spokesperson, Wilson Uwujaren, told The PUNCH that he was not aware of the lawyers’ comment.