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AGF urges Court to dismiss Suit
While urging the court to strike out or dismiss the case, the AGF, argued that contrary to the contention of the plaintiffs, the EFCC was validly established in line with the provision of section 15(5) of the 1999 Constitution, as amended. He refuted the claim by Kogi State that the EFCC Establishment Act was an offshoot of an international convention that was not properly domesticated in Nigeria.
“Section 4(2) of the Constitution empowers the National Assembly (NASS) to make laws with respect to everything included on the Exclusive Legislative List of the Constitution, and Item 60(a) thereof refers to “The establishment and regulation of authorities for the Federation or any part thereof to promote and enhance the observance of the Fundamental Objective and Directive Principles contained in this Constitution”, of which the EFCC is one such authority or agency. “I urge my lords to dismiss this suit in its entirety, otherwise, tomorrow, what the people will go out to say is that the Supreme Court has said we should no longer fight corruption.
Moreover, ruling in favour of the plaintiffs will have a far-reaching implication, especially on all the previous convictions,” the AGF added.
It could be noted that the Attorney-General of the Federation on the other hand, did not deny that the Acts were rooted in the United Nations Convention but that the concurrence of states of the Federation as stakeholders was not necessary for the validity of the Acts. By this, they meant that compliance with Section 12 of the 1999 Constitution was not necessary for the validity of the Acts.
This is a strange argument. By this, the defendants also curiously implied that the findings of the Supreme Court in Nwobike V. Federal Republic of Nigeria that the UN Convention gave birth to the Acts was not relevant.
Lawyers Back Governors
The suit challenging the constitutionality of the anti-graft agencies has gained the support of lawyers.
A legal luminary, Dr Olisa Agbakoba, SAN, has praised the move by the governors as a good one, saying it would enable Nigerians know the scope of powers of the EFCC.
“They (EFCC) do everything, and the Supreme Court has warned them, in many cases, that you cannot do everything. So, it is a good thing for the governors to go and request the Supreme Court to interpret just like the AGF went to the Supreme Court on Local Government Autonomy. Let us see what the Supreme Court makes of it,” Agbakoba stated. “I have always felt that the EFCC was an unconstitutional body. This case that the governors have brought reawakens my interest to challenge exactly what the purpose of the EFCC is. This is a country struggling to survive in terms of lack of cash. Many governors are insolvent. But if you go to Abuja, you will see stupendous corruption; I don’t see what the EFCC is doing. If I have the powers of the EFCC to bring in all those guys who have stolen money and converted it to real estate, we will be looking at about a thousand trillion naira. Why is the EFCC not fulfilling the mandate for which it was established?”
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In a similar endorsement, the Judiciary Watchdogs, a group of lawyers from the 36 states of the federation, commended the governors for their courageous stand. According to the lawyers who have been vocal against corruption in Nigeria, the EFCC’s enabling act was enacted without input from state assemblies, violating the principles of federalism and state autonomy. In a statement signed by Co-National Convener, Barr Real S. Dennis, the lawyers said the governors were on track for demanding constitutional compliance, state sovereignty, and accountability from the EFCC and other anti-graft agencies.
For the lawyers, getting the foundation right would help the war against corruption as the agencies now, particularly the EFCC, have only allegedly been fighting proxy wars for successive Presidents.
Dennis argued that the National Assembly must ratify the UN Convention against Corruption in accordance with Section 12 of the 1999 Constitution. He further said the lawsuit would have far-reaching implications for Nigeria’s federal system, anti-corruption efforts, and democratic governance, while advising the Federal Government to look critically at the reason the EFCC appeared to be consistently embroiled in controversy.
This is a significant legal challenge for Nigeria’s federal structure. The Constitution empowers states as key stakeholders in lawmaking, especially regarding governance. However, the Federal Government’s unilateral creation of agencies like the EFCC undermines federalism and state autonomy. “The states involved aren’t seeking to dismantle these agencies but advocate for a balanced system respecting all levels of government. International conventions complicate national sovereignty, and Nigeria must uphold treaties while honouring constitutional obligations.
“Moreover, the effectiveness of the anti-graft agencies, particularly the EFCC, in addressing corruption has been called to question. Numerous allegations of mismanagement, selective enforcement, and abuse of power have plagued these institutions. “The EFCC, in particular, has faced criticism for operating beyond its mandate, often pursuing politically motivated cases that raise concerns about its impartiality. This lack of accountability is compounded by the absence of a robust framework to ensure transparency in its operations.
“A disbandment of these agencies could pave the way for a more accountable and effective mechanism for combating corruption—one that operates within the bounds of the law and commands public trust. “These agencies have been known to target political adversaries while corruption cases involving those perceived to be allies of the governments of the day are wilfully unaddressed or were handled less vigorously.
“The United Nations Convention against Corruption, ratified by Nigeria on December 14, 2004, must be implemented in accordance with Section 12 of the 1999 Constitution (as amended). “This section unequivocally states that no treaty can have the force of law in Nigeria until ratified by a majority of all the Houses of Assembly in the Federation. “The governors are building on the landmark case of Dr. Joseph Nwobike Vs Federal Republic of Nigeria, where the Supreme Court held that the EFCC Establishment Act was enacted without following Section 12 provisions.” Nigerians are optimistic that the apex Court would rise to the occasion as it did on many occasions in the past.
This hope is strengthened by the inaugural speech of the New head of the Judiciary, Hon. Justice Kudirat Motonmori Olatokunbo Kekere – Ekun, where she said, “Under my leadership, the Judiciary would adhere to the principles of honesty, transparency and integrity and that independence of the judiciary is always a topical issue…… at the Supreme Court. For instance, our judgments are free from external influence. While it is essential for the judiciary, as the third arm of government, to maintain good working relationships with the executive and legislative branches, this should not be misconstrued as subservience.
“This is a new dawn and a new era in the Nigerian Judiciary. I wish to assure my fellow Nigerian citizens that we are committed to working more diligently to improve public perception of the Nigerian Judiciary. Over the years, various factors have contributed to the negative image of the Judiciary. However, we are determined to change this narrative and make the Judiciary a source of pride for all Nigerians. When the legal compass of a Nation falters, everything suffers, including public and international perception ……’’’
