Can EFCC Investigate States?

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The arrest and release of two top officials of the Ekiti State government by the Economic and Financial Crimes Commission has again reignited the controversy over the powers of the anti-graft agency to investigate states, writes Davidson Iriekpen

After fourteen days in detention, the Ekiti State Commissioner for Finance, Mr Toyin Ojo and the Accountant General, Mrs. Yemisi Owolabi, were last week released by the Economic and Financial Crimes Commission (EFCC). The two officials while narrating their ordeals in the hands of operatives of the anti-graft agency to journalists, said they were practically begged to leave detention when the agency found out that they had committed no offence to warrant their arrest in the first instance. They added that they could not be charged to court because the petition written against them lacked substance.

The duo said the petition upon which they were arrested, was written by someone whose name was not mentioned, claiming that the state mismanaged the Paris Club debts refunds and bailouts allocated to it by the federal government. They said the petition lacked substantive evidence and could not be used to prosecute them. The officials insisted that the petition was written basically to tarnish the government of Ayodele Fayose, for no just cause.

Speaking at a reception organised for them by Fayose, Ojo said: “The EFCC found it difficult to prosecute us because they lacked evidence. Fayose by his conduct boxed EFCC to a corner, because you needed not fear when you committed no crime. By our arrests, it was clear that EFCC has become an instrument of oppression. Some states took more than the bailout taken by Ekiti but nothing was done, what is their interest in Ekiti? They asked us to sign so that we can leave the detention but we refused. They started begging us before we left.”

The Speaker of the Ekiti State House of Assembly, Hon. Kola Oluwawole, described EFCC as a meddlesome interloper, saying Sections126 and 127 of the 1999 Constitution empowered the assembly to perform oversight functions on state finances and not the statutory duty of the agency. He warned the commission to allow the assembly to do its duty.

The governor described EFCC as a senseless organisation, saying: “If they are not senseless, they should have known that the man who wrote the petition had been sacked because he didn’t deserve to be called a civil servant. The arrest was orchestrated by Ekiti indigenes in collaboration with the EFCC. I will never go and beg EFCC, it will rather beg me. I won’t negotiate anything because I am not afraid of them. There was a subsisting court order that barred them from arresting any official of this state, but they breached the law. By the grace of God, I will restructure the EFCC when I become the president of this nation. I will reorganise EFCC and make it looks responsible. They detained me in 2008, but I won them in court , because the most high God was on my side. They said the NNPC Group Managing Director awarded $25billion contracts illegally, the EFCC did nothing. Even the Presidency has been the one defending him now. What is their interest in Ekiti? Whose interest is EFCC protecting?”

The same day that Fayose declared for the 2019 presidential election in Abuja, was the day the anti-graft agency arrested the state’s officials.

EFCC Head of Media and Information, Wilson Uwujaren said the arrest was effected due to the refusal of the officials to honour EFCC’s invitation. He said: “Ekiti State Commissioner for Finance and the Accountant General are currently in the custody of the EFCC. They were picked up following their refusal to honour previous invitations for interrogation in relation to pending investigation on the misuse of bail out funds by the Fayose administration.”

Fayose has had a running battle with the EFCC. The commission had earlier frozen his account. But undaunted, Fayose filed a suit against the commission at the court and won. Appeal Court also rejected EFCC’s appeal.
Many analysts contend that while the EFCC knows the position of the law, its arrest of the two officials was to force them to implicate the governor against whom it has been looking for evidence. They wondered if the Ekiti State was the only state where bailout funds and Paris Club refund were allegedly misapplied. They also wondered why officials of the All Progressives Congress (APC) states such as Osun and Benue where same allegations have been raging were not arrested.

However, the arrest of the two top officials of the state government has against raised the question on whether the anti-graft commission has the powers to investigate the states. Does EFCC have the power to probe state?
The arrest of the two top officials of the Ekiti State government when Fayose declared for the 2019 presidency, was reminiscent of the arrest of some officials of the Rivers State Government in 2006 when the then Governor Peter Odili declared for the 2007 presidential election.

Based on a frivolous petition aimed at stopping the ambition of Odili who was clearly the frontrunner, the then EFCC Chairman, Nuhu Ribadu, swooped on the state, arresting the Commissioner for Finance and other top officials. The petition was used to cajole Odili to withdraw for the late President Umaru Musa Yar’Adua. As soon as the former governor withdrew from the presidential race, his officials were released.

Before then, the state government had instituted a suit against the EFCC to challenge its powers to investigate the state instead of the state. The cased produced two subsisting judgments of the High Court of Rivers State and the Federal High Court that bar the anti-graft agency from investigating the finances of the state.
The first judgment was at the High Court of Rivers State in suit number PHC/114/2007: Attorney-General of Rivers State vs the Speaker of Rivers State House of Assembly and 36 others. The judgment which was delivered by Justice Peter Agumagu on February 16, 2007, enunciated the following principles of law, which till date has not been set-aside by any appellate court.

The principles of law are: By the combined effects of section 125 subsections (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution), it is the House of Assembly of a state, Rivers State inclusive, that has the final say on matters pertaining to the funds of the state as laid before it by the Auditor-General’s audit report of all public accounts and the accountant-general’s financial statements and published annual accounts.

By the judgment of Justice Agumagu, these powers are exercised independently without the direction, dictation, control or manipulation of any other authority or person. He said the constitution did not vest on investigating bodies such as the EFCC or the police or law officers like the Attorney-General of the Federation any powers to direct or control the House of Assembly of a state in the performance of its aforementioned function of superintending over the funds of a state. Neither do these bodies have any constitutional powers to direct how the Accountant-General or the Auditor General of a state performs their respective functions.

Agumagu concluded that the EFCC has no business with how the state spends its finances until the state assembly performs its duties and invites the anti-graft agency to investigate a crime pursuant to sections 6 and 7 of the EFCC Act of 2004.

“By the combined provisions of sections 128 and 129 of the 1999 Constitution, it is the house of assembly of a state that is vested with the power to superintend or police all funds of the state and ‘to expose corruption and waste in the management of public and consolidated revenue funds of a state.’ The powers of the House of Assembly contained in section 128 of the 1999 Constitution are exclusively reserved for them.

“The federal government or any of its agencies does not share this power with the House of Assembly. Neither the police, nor the EFCC is constitutionally empowered to share power with the House of Assembly. It will amount to an unconstitutional act for the EFCC or the ICPC to usurp this power of the House of Assembly. The EFCC has no constitutional power and control over public and consolidated revenue funds of Rivers State, and to that extent is not entitled to audit its accounts or tamper with its bank statements and records.”

When the EFCC rejected the judgment because it was delivered by a state high court, the case was again filed at the Federal High Court where the court in line with the tenor of the judgment of the high court mentioned above made specific injunctive orders in its judgment delivered on March 20, 2007, restraining the EFCC (the 1st defendant in the said suit) from specific acts. The federal court made the following peremptory orders: “(a) An order of injunction restraining the 1st defendant by itself or by its servants or agents or in any manner howsoever from purporting to investigate or inquire into the appropriation, disbursing, administering, or management of the funds of Rivers State is hereby made.

“(b) An order of injunction restraining the 1st defendant (EFCC) by itself or by its servants or agents or in any manner howsoever from disseminating, publishing or circulating to any government, government agency, the news media or members of the public or in any manner at all, he (sic) purported or findings in respect of any investigation or inquiry into the appropriation, disbursing, administering or management of the funds of Rivers State or putting the said report or finding to any use whatsoever is hereby made.”

It is against this background that many analysts feel that the EFCC has not changed from its tactics. as one of the analysts put it, “The story raises fundamental questions about the moral horror of an anti-graft agency that is now openly partisan in all its intentions and actions. There is a universal concern that the EFCC is playing an extremely corrosive role in the current political dispensation. Rather than fight corruption in a professional and dispassionate manner, the EFCC behaves like an integral organ of the APC. An anti-graft commission that targets only the opposition politicians and critics of the failed policies of the APC government is a national embarrassment.”

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By the combined provisions of sections 128 and 129 of the 1999 Constitution, it is the house of assembly of a state that is vested with the power to superintend or police all funds of the state.